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

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger shall be subject to the satisfaction at or prior to the Closing Date of each of the following conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval shall have been obtained. (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made in this Agreement shall have been true and correct as of the date of this Agreement and as of the Closing Date (without giving effect to any qualifications or limitations as to “materiality” or “Company Material Adverse Effect” set forth therein), except as does not constitute a Company Material Adverse Effect, except to the extent such representations and warranties expressly relate to an earlier time (in which case, where the failure of such representations and warranties to be true and correct as of such times does not constitute Company Material Adverse Effect). (d) The Company shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by it at or prior to the Closing Date. (e) Prior to or at the Closing, Parent shall have received a certificate, validly executed by the Secretary of the Company, certifying (i) as to the adoption of resolutions of the board of directors of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation of such transaction or (iii) have, individually or in the aggregate, a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effect. (g) Prior to or at the Closing, the Company shall have delivered in form and substance reasonably acceptable to Parent a certificate of the Chief Executive Officer of the Company, dated as of the Closing Date, to the effect that the conditions specified in this Section are satisfied.

Conditions to the Obligations of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub to consummate and effect the Merger shall be is subject to the satisfaction or, to the extent permitted by Applicable Law, waiver by Parent, at or prior to the Closing Date of each Closing, of the following conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval shall have been obtained. (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made set forth in Section 4.01 (Organization, Standing and Power), Section 4.02 (Corporate Authorization), Section 4.05 (Capitalization) (other than clause (a) thereof) and Section 4.23 (Brokers’ Fees) shall have been true and correct in all material respects as of the date of this Agreement and shall be true and correct in all material respects as of the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date), (ii) the representations and warranties of the Company set forth in clause (a) of Section 4.05 (Capitalization) shall be true and correct in all respects other than de minimis inaccuracies therein, (iii) the representations and warranties in clause (b) of Section 4.09 (Absence of Certain Changes) shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as if made on the Closing Date and (iv) the representations and warranties of the Company set forth in Article 4 of this Agreement (other than those described in the foregoing clauses (i) through (iii)) shall have been true and correct as of the date of this Agreement and as of the Closing Date shall be true and correct (without giving effect to any disregarding all qualifications or limitations as to “materiality,” or “Company Material Adverse Effect” set forth therein), except or words of similar import) on the Closing Date as does not constitute a Company Material Adverse Effect, if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date); provided, however, that notwithstanding anything in this Agreement to the contrary, the condition set forth in this clause (a)(iv) shall be deemed to have been satisfied even if any representations and warranties expressly relate to an earlier time (in which case, where of the Company are not so true and correct if the failure of such representations and warranties of the Company to be so true and correct as of such times does correct, individually or in the aggregate, have not constitute resulted in a Company Material Adverse Effect).; (db) The the Company shall have performed or complied in all material respects with all agreements covenants and covenants obligations required by this Agreement to be performed or complied with by it under this Agreement at or prior to the Closing Date.Closing; (ec) Prior to or at the Closing, Parent shall have received at the Closing a certificate, validly executed by the Secretary of the Company, certifying (i) as to the adoption of resolutions of the board of directors certificate signed on behalf of the Company whereby by the Chief Executive Officer or the Chief Financial Officer of the Company certifying that the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied; and (d) since the date of this Agreement, the Merger there shall not have occurred and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement continuing to be rescinded following consummation of such transaction or (iii) have, individually or in the aggregate, a exist any Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effect. (g) Prior to or at the Closing, the Company shall have delivered in form and substance reasonably acceptable to Parent a certificate of the Chief Executive Officer of the Company, dated as of the Closing Date, to the effect that the conditions specified in this Section are satisfied.

Conditions to the Obligations of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub to consummate and effect the Merger shall be is subject to the satisfaction satisfaction, or waiver by Parent, at or prior to the Closing Date of each Closing, of the following conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval shall have been obtained. (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made set forth in this Agreement the first and second sentences of Section 4.01 (Corporate Existence and Power), Section 4.02 (Corporate Authorization), clause (b) and the first sentence of clause (d) of Section 4.05 (Capitalization), Section 4.24 (Brokers’ Fees), and Section 4.27 (Anti-Takeover Provisions) shall have been be true and correct in all material respects on the Closing Date as of the date of this Agreement and as of if made on the Closing Date (without giving effect except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct in all material respects only as of such earlier date) (for purposes of this clause (i), disregarding all qualifications or limitations as to “materiality,” or “Company Material Adverse Effect” or words of similar import), (ii) the representations and warranties of the Company set forth therein), except in clause (a) and (c) of Section 4.05 (Capitalization) shall be true and correct in all respects on the Closing Date as does not constitute a Company Material Adverse Effect, if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of a specific date, in which case such representation and warranty shall be true and correct in all respects only as of such specified date), except for any inaccuracy or combination of inaccuracies in such representations and warranties relative to the total fully-diluted equity capitalization of the Company as of the Closing Date that do not result in an increase in the aggregate consideration otherwise payable by Parent in the Merger by more than $12,500,000, (iii) the representations and warranties of the Company set forth in Section 4.09(b) (Absence of Changes) shall be true and correct in all respects on the Closing Date as if made on the Closing Date and (iv) the other representations and warranties of the Company set forth in Article 4 of this Agreement shall be true and correct on the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly relate to speaks as of an earlier time (date, in which casecase such representation and warranty shall be true and correct only as of such earlier date), except where the failure of such representations and warranties to be so true and correct (disregarding all qualifications or limitations as of such times does not constitute to “materiality,” “Company Material Adverse Effect).” or words of similar import) would not, individually or in the aggregate, have a Company Material Adverse Effect; (db) The the Company shall have performed or complied in all material respects with all agreements and covenants obligations required by this Agreement to be performed or complied with by it under this Agreement at or prior to the Closing; (c) Parent shall have received at the Closing Date.a certificate signed on behalf of the Company by the Chief Executive Officer or the Chief Financial Officer of the Company certifying that the conditions set forth in Section 7.02(a), Section 7.02(b), Section 7.02(d) and Section 7.02(e) have been satisfied; (d) since the date of this Agreement, there shall not have occurred any Company Material Adverse Effect; (e) Prior the amount of cash and cash equivalents available to or at the Closing, Parent shall have received a certificate, validly executed by the Secretary of the Company, certifying (i) as immediately prior to the adoption of resolutions of Convertible Notes Cash Payment Time, as a funding source for the board of directors of the Company whereby this AgreementAggregate Merger Consideration, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause transaction expenses related to the transactions contemplated by this Agreement to be rescinded following consummation of such transaction or (iii) haveand any Convertible Notes Cash Payment Amount, individually or in the aggregate, a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effect.at least equal to the Minimum Cash Amount; and (gf) Prior to or at the Closing, the Company CEO Rollover shall have delivered occurred in form accordance with the CEO Support and substance reasonably acceptable to Parent a certificate of the Chief Executive Officer of the Company, dated as of the Closing Date, to the effect that the conditions specified in this Section are satisfiedRollover Agreement.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger shall be transactions contemplated by this Agreement are subject to the satisfaction fulfillment at or prior to the Closing Date Effective Time of each of the following additional conditions, any or all of which may be waived, waived in writing, exclusively whole or in part by Parent and Merger Subto the extent permitted by applicable Law: (a) The Required Shareholder Approval shall have been obtained. (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made set forth in this Agreement the first sentence of Section 3.01 (Organization and Qualification), in Section 3.03 (Authority For This Agreement), in Section 3.19 (State Takeover Statutes Inapplicable), in Section 3.20 (Opinion of Financial Advisor), in Section 3.21 (Required Vote of Company Stockholders) and in Section 3.22 (Brokers) shall have been be true and correct as of the date of this Agreement in all respects both when made and at and as of the Closing Date Date, as if made at and as of such time (without giving effect to any qualifications or limitations as to “materiality” or “Company Material Adverse Effect” set forth therein), except as does not constitute a Company Material Adverse Effect, except to the extent expressly made as of an earlier date, in which case as of such date). The representations and warranties of the Company set forth in Section 3.02 (Capitalization) shall be true and correct in all respects both when made and at and as of the Closing Date, as if made at and as of such time (except to the extent expressly relate to made as of an earlier time (date, in which casecase as of such date), except where the failure of such representations and warranties to be so true and correct would not result in losses to Parent of more than $1,000,000. The representations and warranties of the Company set forth herein (other than those listed in the preceding two sentences) shall be true and correct in all respects (without giving effect to any materiality or material adverse effect qualifications contained therein) both when made and at and as of the Closing Date, as if made at and as of such times does time (except to the extent expressly made as of an earlier date, in which case as of such date), except where the failure of such representations and warranties to be so true and correct would not constitute Company reasonably be likely to have or result in, individually or in the aggregate, a Material Adverse Effect). (db) The Company shall have performed or complied in all material respects with all agreements and covenants contained herein required by this Agreement to be performed or complied with by it at or prior to or at the Closing Datetime of the Closing, except where the failure to so perform or comply, in the aggregate, would not be reasonably likely to have a Material Adverse Effect. (c) The Company shall have delivered to Parent a certificate, dated the date of the Closing, signed by the Chief Executive Officer or Chief Financial Officer of the Company, certifying as to the fulfillment of the conditions specified in Sections 7.02(a), 7.02(b), 7.02(e), 7.02(f) and 7.02(g). (d) The Company shall have delivered to Parent a properly executed statement satisfying the requirements of Treasury Regulation sections 1.1445-2(c)(3) and 1.897-2(h) certifying that an interest in the Company is not a U.S. real property interest within the meaning of section 897 of the Code. (e) Prior Immediately prior to or at the ClosingEffective Time, Parent the Company shall have received declared and paid a certificate, validly executed by cash dividend to holders of Series A Preferred Stock equal to the Secretary amount of accumulated but unpaid dividends outstanding as of the Company, certifying (i) as Closing Date on the Series A Preferred Stock and a cash dividend to holders of Series B Preferred Stock equal to the adoption amount of resolutions accumulated but unpaid dividends outstanding as of the board of directors of Closing Date on the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder ApprovalSeries B Preferred Stock. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this The Management Services Agreement, (ii) cause dated June 30, 1999, by and between the transactions contemplated by this Agreement to be rescinded following consummation of such transaction or (iii) haveCompany and Fremont Partners, individually or in L.L.C. shall have been terminated no later than the aggregate, a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effectEffective Time. (g) Prior to or at Since the Closingdate hereof, the Company there shall have delivered in form and substance reasonably acceptable to Parent a certificate of the Chief Executive Officer of the Company, dated as of the Closing Date, to the effect been no Material Adverse Effect that the conditions specified in this Section are satisfiedis continuing.

Conditions to the Obligations of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub to consummate and effect the Merger shall be is subject to the satisfaction or, to the extent permitted by Applicable Law, waiver by Parent, at or prior to the Closing Date of each Closing, of the following conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval shall have been obtained. (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made set forth in Section 4.01 (Organization, Standing and Power), Section 4.02 (Corporate Authorization), Section 4.23 (Brokers’ Fees) and Section 4.24 (Opinion of Financial Advisor) shall have been true and correct in all material respects as of the date of this Agreement and shall be true and correct in all material respects as of the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date), (ii) the representations and warranties of the Company set forth in Section 4.05 (Capitalization) shall have been true and correct in all respects other than de minimis inaccuracies therein as of the date of this Agreement and shall be true and correct in all respects other than de minimis inaccuracies therein as of the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date), (iii) the representations and warranties in clause (b) of Section 4.09 (Absence of Certain Changes) shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as if made on the Closing Date and (iv) the representations and warranties of the Company set forth in Article 4 (other than those described in the foregoing clauses (i) through (iii)) shall have been true and correct as of the date of this Agreement and as of the Closing Date shall be true and correct (without giving effect to any disregarding all qualifications or limitations as to “materiality,” or “Company Material Adverse Effect” set forth therein), except or words of similar import) as does not constitute a Company Material Adverse Effect, of the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date); provided, however, that notwithstanding anything in this Agreement to the contrary, the condition set forth in this clause (a)(iv) shall be deemed to have been satisfied even if any representations and warranties expressly relate to an earlier time (in which case, where of the Company are not so true and correct if the failure of such representations and warranties of the Company to be so true and correct as of such times does correct, individually or in the aggregate, have not constitute resulted in a Company Material Adverse Effect).; (db) The the Company shall have performed or complied in all material respects with all agreements covenants and covenants obligations required by this Agreement to be performed or complied with by it under this Agreement at or prior to the Closing Date.(excluding the covenants and obligations set forth in Section 6.17); (ec) Prior to or at the Closing, Parent shall have received at the Closing a certificate, validly executed by the Secretary of the Company, certifying (i) as to the adoption of resolutions of the board of directors certificate signed on behalf of the Company whereby by the Chief Executive Officer or the Chief Financial Officer of the Company certifying that the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied; and (d) since the date of this Agreement, the Merger there shall not have occurred and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement continuing to be rescinded following consummation of such transaction or (iii) have, individually or in the aggregate, a exist any Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effect. (g) Prior to or at the Closing, the Company shall have delivered in form and substance reasonably acceptable to Parent a certificate of the Chief Executive Officer of the Company, dated as of the Closing Date, to the effect that the conditions specified in this Section are satisfied.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger shall be are subject to the satisfaction or waiver of the following additional conditions: (a) the Company shall have performed, or complied with, in all material respects all of its covenants or agreements hereunder required to be performed, or complied with, by it at or prior to the Closing Date of each of the following conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval shall have been obtained.Effective Time; (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made contained in this Agreement Section 4.01 (other than the second sentence of Section 4.01) (Corporate Existence and Power), Section 4.02(a) and Section 4.02(b) (Corporate Authorization), Section 4.04(a) (Non-Contravention); Section 4.05(b)(Capitalization), Section 4.06 (other than the first sentence of Section 4.06(b)) (Subsidiaries), Section 4.24 (Finders’ Fees) and Section 4.26 (Anti-Takeover Statutes) shall have been be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as if made as of such times (without giving effect to any qualifications or limitations as to “materiality” or “Company Material Adverse Effect” set forth therein), except as does not constitute a Company Material Adverse Effect, except to the extent such other than representations and warranties expressly relate to an earlier time (in that by their terms address matters only as of another specified time, which case, where the failure shall be so true only as of such time); (ii) the representations and warranties to of the Company contained in the second sentence of Section 4.01 (Corporate Existence and Power), Section 4.05(a), Section 4.05(c) (Capitalization) and the first sentence of Section 4.06(b) (Subsidiaries) shall be true and correct in all respects (other than de minimis inaccuracies) as of the date of this Agreement and as of the Closing Date as if made as of such times; (iii) the representations and warranties of the Company contained in Section 4.10(b) (Absence of Certain Changes) shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as if made as of such times; and (iv) each of the other representations and warranties of the Company contained in this Agreement (disregarding all materiality and Company Material Adverse Effect qualifications contained therein) shall be true and correct in all respects at and as of the date of this Agreement and as of the Closing Date as if made as of such times does not constitute Company Material Adverse Effect(other than representations and warranties that by their terms address matters only as of another specified time, which shall be so true only as of such time). , with only such exceptions in the case of this clause (d) The Company shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by it at or prior to the Closing Date. (e) Prior to or at the Closing, Parent shall have received a certificate, validly executed by the Secretary of the Company, certifying (iiv) as have not had and would not reasonably be expected to the adoption of resolutions of the board of directors of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation of such transaction or (iii) have, individually or in the aggregate, a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effect.; (gc) Prior to or at since the Closingdate hereof, the there shall not have occurred a Company Material Adverse Effect; (d) Parent shall have delivered in form and substance reasonably acceptable to Parent received a certificate of the Chief Executive Officer of the Companycertificate, dated as of the Closing Date, signed by an executive officer of the Company to the effect that the conditions specified set forth in this the preceding clauses (a), (b) and (c) have been satisfied; and (e) the consents, clearances, authorizations, approvals, waivers and filings set forth on Section are satisfied.9.02(e) of the Company Disclosure Schedule shall have been duly obtained and remain in full force and effect, other than with respect to any indebtedness facilities listed on Section 9.02(e) of the Company Disclosure Schedule that the Company or its Subsidiaries have repaid, redeemed or retired in accordance with the terms of Section 6.08;

Conditions to the Obligations of Parent and Merger Sub. The In addition to the conditions set forth in Section 7.1, the respective obligations of Parent and Merger Sub to consummate and effect the Merger shall be are subject to the satisfaction or (to the extent permitted by Law) waiver by Parent at or prior to the Merger Closing Date of each of the following further conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval shall have been obtained. (b) No Governmental Entity each of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company (i) set forth in Section 4.2(a) (Capitalization; Subsidiaries), Section 4.3 (Authority Relative to Agreement) and the first sentence of Section 4.25 (Brokers) shall be true and correct in all respects as of the date of this Agreement and at and as of the Merger Closing Date as if made on the Merger Closing Date (except, with respect to Section 4.2(a), to the extent that any inaccuracies would be de minimis, in the aggregate) and (ii) each of the remaining representations and warranties of the Company set forth in Article IV of this Agreement shall have been be true and correct as of the date of this Agreement and at and as of the Merger Closing Date as if made on the Merger Closing Date (without giving effect to any qualifications or limitations as to “materiality” or “Company Material Adverse Effect” set forth therein), except as does not constitute a Company Material Adverse Effect, except to the extent such representations and warranties expressly relate to an earlier time (date, in which casecase as of such earlier date), where except for inaccuracies of representations or warranties the failure circumstances giving rise to which would not constitute a Company Material Adverse Effect (it being understood that, for purposes of clause (ii) above, when determining the accuracy of such representations and warranties to be true and correct as of such times does not constitute warranties, all materiality, “Company Material Adverse Effect” and similar qualifiers contained in such representations and warranties shall be disregarded).; (db) The the Company shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by it at on or prior to the Merger Closing Date.; (ec) Prior to or at the Closing, Parent Company shall have received delivered to Parent a certificate, validly executed dated the Merger Closing Date and signed by the Secretary an executive officer of the Company, certifying (i) as to the adoption matters set forth in Section 7.2(a) and Section 7.2(b); and (d) since the date of resolutions of the board of directors of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which there shall not have occurred any change, effect, development or written consent via which such action was taken)circumstance that constitutes, and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall or would reasonably be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement expected to be rescinded following consummation of such transaction or (iii) have, individually or in the aggregateconstitute, a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effect. (g) Prior to or at the Closing, the Company shall have delivered in form and substance reasonably acceptable to Parent a certificate of the Chief Executive Officer of the Company, dated as of the Closing Date, to the effect that the conditions specified in this Section are satisfied.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger shall be is subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by Parent) of the following further conditions: (a) the Company shall have performed, in all material respects, all of its obligations hereunder required to be performed by it at or prior to the Closing Date of each of the following conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval shall have been obtained.Effective Time; (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made contained in this Agreement Section 4.01 (other than the third sentence thereof), Section 4.02 (other than the last sentence of Section 4.02(b)), Section 4.04(a), Section 4.05(a), Section 4.05(b), Section 4.26, Section 4.27 and Section 4.28 shall have been be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing Date as if made at and as of the Closing (without giving effect or, if such representations and warranties are given as of another specific date, at and as of such date); (ii) the representations and warranties of the Company contained in Section 4.10(a)(ii) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iii) the other representations and warranties of the Company contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to any qualifications materiality or limitations as to “materiality” or “Company Material Adverse Effect” set forth therein), except as does not constitute a Company Material Adverse Effect, except to shall be true and correct at and as of the extent date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties expressly relate to an earlier time are given as of another specific date, at and as of such date), except, in the case of this clause (in which caseiii) only, where the failure of such representations and warranties to be true and correct as of such times does has not constitute Company Material Adverse Effect). (d) The Company shall have performed or complied in all material respects with all agreements had and covenants required by this Agreement would not reasonably be expected to be performed or complied with by it at or prior to the Closing Date. (e) Prior to or at the Closing, Parent shall have received a certificate, validly executed by the Secretary of the Company, certifying (i) as to the adoption of resolutions of the board of directors of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation of such transaction or (iii) have, individually or in the aggregate, a Company Material Adverse Effect (or, in the case of Section 4.16, a Parent Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effect.); and (gc) Prior to or at the Closing, Parent shall have received a certificate from an executive officer of the Company shall have delivered in form and substance reasonably acceptable to Parent a certificate confirming the satisfaction of the Chief Executive Officer of the Company, dated as of the Closing Date, to the effect that the conditions specified set forth in this Section are satisfied9.02(a) and Section 9.02(b).

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger shall be are subject to the satisfaction at (or written waiver, if permissible under applicable Law) on or prior to the Closing Date of each of the following further conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval shall have been obtained. (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made in this Agreement shall have been true and correct as of the date of this Agreement and as of the Closing Date (without giving effect to any qualifications or limitations as to “materiality” or “Company Material Adverse Effect” set forth therein), except as does not constitute a Company Material Adverse Effect, except to the extent such representations and warranties expressly relate to an earlier time (in which case, where the failure of such representations and warranties to be true and correct as of such times does not constitute Company Material Adverse Effect). (d) The Company shall have performed or complied in all material respects with all agreements and covenants of its obligations hereunder required by this Agreement to be performed or complied with by it at or prior to the Closing Date. (e) Prior to or at the Closing, Parent shall have received a certificate, validly executed by the Secretary of the Company, certifying (i) as to the adoption of resolutions of the board of directors of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this AgreementEffective Time, (ii) cause the transactions contemplated by this Agreement to Fundamental Representations shall be rescinded following consummation true and correct at and as of the Effective Time in all material respects as if made at and as of such transaction or time (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty (as so read) shall be true in all material respects as of such earlier date); and (iii) the representations and warranties of the Company (other than the Fundamental Representations) that are contained in this Agreement and in any certificate or other writing delivered by the Company pursuant hereto (which shall, for the purposes of this Section 8.2(a), be read without any qualification contained therein as to materiality or Material Adverse Effect of the Company) shall be true at and as of the Effective Time as if made at and as of such time (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty (as so read) shall be true as of such earlier date), with such exceptions as have not had and would not reasonably be expected to have, whether individually or in the aggregate, a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effect.Effect on the Company; (gb) Prior to or at the Closing, No Material Adverse Effect on the Company shall have delivered occurred since the date hereof and be continuing; (c) Holders of no greater than ten percent (10%) of the issued and outstanding shares of Common Stock shall have demanded appraisal for such shares in form and substance reasonably acceptable accordance with Delaware Law (excluding such holders who have failed to perfect, withdrawn or otherwise lost such right to appraisal) prior to the Closing; and (d) Parent shall have received a certificate of the Chief Executive Officer of the Company, dated as of the Closing Date, Date signed on behalf of the Company by the chief executive officer or another senior officer of the Company to the effect that the conditions specified set forth in this Section are 8.2(a) and Section 8.2(b) have been satisfied.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger shall be are subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by Parent) of the following further conditions: (a) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Closing Date of each of the following conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval shall have been obtained.Effective Time; (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made contained in this Agreement the first and last sentences of Section 4.01 (Corporate Existence and Power), Section 4.02 (Corporate Authorization), Section 4.04(a) (Non-contravention), Section 4.26 (Opinion of Financial Advisor) and Section 4.27 (Finders’ Fees) shall have been be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing Date as if made at and as of the Closing (without giving effect or, if such representations and warranties are given as of another specific date, at and as of such date); (ii) the representations and warranties of the Company contained in Section 4.05(a) (Capitalization) shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), except for any de minimis inaccuracies; (iii) the representation and warranty set forth in Section 4.09(b) (Absence of Certain Changes) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of the Company contained in Article IV (disregarding all qualifications and exceptions contained therein relating to any qualifications materiality or limitations as to “materiality” or “Company Material Adverse Effect” set forth therein)) shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, except as does not constitute a Company Material Adverse Effect, except to the extent if such representations and warranties expressly relate to an earlier time are given as of another specific date, at and as of such date), except, in the case of this clause (in which caseiv) only, where the failure of such representations and warranties to be true and correct as of such times does has not constitute Company Material Adverse Effect). (d) The Company shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by it at or prior to the Closing Date. (e) Prior to or at the Closing, Parent shall have received a certificate, validly executed by the Secretary of the Company, certifying (i) as to the adoption of resolutions of the board of directors of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation of such transaction or (iii) havehad, individually or in the aggregate, a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effect.; (gc) Prior to or at since the Closingdate of this Agreement, there shall not have occurred any Company Material Adverse Effect; and (d) Parent shall have received a certificate from an executive officer of the Company shall have delivered in form and substance reasonably acceptable to Parent a certificate confirming the satisfaction of the Chief Executive Officer of the Companyconditions set forth in Section 8.02(a), dated as of the Closing Date, to the effect that the conditions specified in this Section are satisfied8.02(b) and Section 8.02(c).

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger shall be and the Subsequent Merger are subject to the satisfaction at or prior to the Closing Date of each of the following conditions, further conditions (any or all of which may be waived, in writing, exclusively waived by Parent and Merger Sub:Sub in whole or in part to the extent permitted by Applicable Law): (a) The Required Shareholder Approval shall have been obtained. (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made contained in this Agreement shall have been true or in any certificate or other writing delivered by the Company pursuant hereto (other than the Fundamental Representations and correct as the representations and warranties of the date Company contained in Section 4.06(a) (Capitalization) and Section 4.10(a) (Absence of this Agreement Certain Changes)), without giving effect to any materiality and Material Adverse Effect qualifications contained therein, shall be true at and as of the Closing Date as if made at and as of such time (without giving effect to any qualifications or limitations other than representations and warranties that by their terms address matters only as to “materiality” or “Company Material Adverse Effect” set forth thereinof another specified time, which shall be true only as of such time), except with only such exceptions as does have not constitute had and would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, except to (ii) the extent such representations and warranties expressly relate to an earlier time (Fundamental Representations of the Company contained in which case, where the failure of such representations and warranties to this Agreement shall be true and correct as of such times does not constitute Company Material Adverse Effect). (d) The Company shall have performed or complied in all material respects with all agreements at and covenants required as of the Closing Date as if made at and as of such time (other than Fundamental Representations that by their terms address matters only as of another specified time, which shall be true only as of such time), (iii) the representations and warranties of the Company in Section 4.06(a) (Capitalization) of this Agreement shall be true in all respects at and as of the Closing Date as if made at and as of such time (other than representations and warranties that by their terms address matters only as of another specified time, which shall be true only as of such time), except for any failures to be so true that are de minimis and (iv) the representation and warranty contained in Section 4.10(a) (Absence of Certain Changes) shall be true in all respects at and as of the Closing Date as if made at and as of such time (other than representations and warranties that by their terms address matters only as of another specified time, which shall be true only as of such time); (b) each of the Company, SellerCo and Seller MergerCo shall have performed all of its obligations hereunder required to be performed or complied with by it at or prior to the Closing Date.(or any non-performance shall have been cured) in all material respects; and (ec) Prior to or at the Closing, Parent shall have received a certificate, validly executed certificate signed by the Secretary of the Company, certifying (i) as to the adoption of resolutions of the board of directors a senior executive officer of the Company whereby this Agreement, confirming the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy satisfaction of the meeting minutes at which or written consent via which such action was takenconditions set forth in Section 9.02(a) and Section 9.02(b), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation of such transaction or (iii) have, individually or in the aggregate, a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effect. (g) Prior to or at the Closing, the Company shall have delivered in form and substance reasonably acceptable to Parent a certificate of the Chief Executive Officer of the Company, dated as of the Closing Date, to the effect that the conditions specified in this Section are satisfied.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger shall be are subject to the satisfaction at (or prior to the Closing Date of each waiver by Xxxxxx and Merger Sub) of the following conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval shall have been obtained. (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has other than the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made contained in Section 4.1 (Organization), Section 4.3(a) (Capitalization), Section 4.4(a) (Authorization), Section 4.10 (Absence of Certain Changes), and Section 4.17 (Brokers or Finders), the representations and warranties of the Company contained in this Agreement shall have been true and correct as of Agreement, for the date purpose of this Agreement and as of the Closing Date clause (i) without giving effect to any qualifications or limitations limitation as to “materiality” or “Company Material Adverse Effect” or any similar standard or qualification set forth therein, shall be true and correct in all respects as of the date hereof and as of the Closing Date, as though made on and as of such date and time (except to the extent expressly made as of an earlier date, in which case as of such earlier date), except as does not constitute a Company Material Adverse Effect, except to the extent such representations and warranties expressly relate to an earlier time (in which case, where the failure of such representations and warranties failures to be true and correct as of such times does correct, individually or in the aggregate, has not constitute had and would not reasonably be expected to have a Company Material Adverse Effect; and (ii) the representations and warranties set forth in Section 4.1 (Organization)., Section 4.3(a) (Capitalization), Section 4.4(a) (Authorization), Section 4.10 (Absence of Certain Changes), and Section 4.17 (Brokers or Finders), shall be true and correct in all respects (except, for de minimis inaccuracies) as of the date hereof and as of the Closing Date, as though made on and as of such date and time (except to the extent expressly made as of an earlier date, in which case as of such earlier date); (db) The the Company shall have performed or all obligations and complied with all covenants, in each case in all material respects with all agreements and covenants respects, required by this Agreement to be performed or complied with by it at or prior to the Closing Date.Closing; (ec) Prior to or at the Closing, Parent shall have received a certificate, validly executed by the Secretary of the Company, certifying (i) as to the adoption of resolutions of the board of directors of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation of such transaction or (iii) have, individually or in the aggregate, a no Company Material Adverse Effect, Effect shall have occurred and no such judgment, order, decree, stipulation or injunction by any Governmental Entity be continuing following the date of competent jurisdiction shall be in effect.this Agreement; and (gd) Prior to or at the Closing, the Company shall have delivered in form and substance reasonably acceptable to Parent a certificate of the Chief Executive Officer of the Companycertificate, dated as of the Closing Date, signed by an officer of the Company, certifying to the effect that satisfaction of the conditions specified in this Section are satisfied8.2(a), Section 8.2(b), and Section 8.2(c).

Conditions to the Obligations of Parent and Merger Sub. The respective obligations of Parent and Merger Sub to consummate and effect the Merger shall be are subject to the satisfaction or (to the extent permitted by Law) waiver by Parent at or prior to the Closing Date of each Effective Time of the following further conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval shall have been obtained. (b) No Governmental Entity each of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made in this Agreement (i) set forth in, Section 3.1 (Organization and Qualification; Subsidiaries), Section 3.2 (Certificate of Incorporation and Bylaws), Section 3.4 (Authority Relative to the Agreement), Section 3.11(b) (Absence of Certain Changes or Events), Section 3.21 (Opinion of Financial Advisor), Section 3.22 (Takeover Statutes) and Section 3.23 (Vote Required) shall have been be true and correct in all respects at and as of the date of this Agreement and as of the Closing Date Effective Time with the same effect as though made as of the Effective Time, (ii) set forth in Section 3.3 (Capitalization) shall be true and correct in all material respects at and as of the date of this Agreement and as of the Effective Time with the same effect as though made as of the Effective Time (except to the extent expressly made as of an earlier date, in which case as of such date) and (iii) set forth in Article III (other than the sections of Article III referred to in clause (i) or (ii) above), without giving effect to any qualifications or limitations as to “materiality” materiality or “Company Material Adverse Effect” set forth qualifications therein), except shall be true and correct at and as does not constitute a Company Material Adverse Effect, of the date of this Agreement and as of the Effective Time with the same effect as though made as of the Effective Time (except to the extent such representations and warranties expressly relate to made as of an earlier time (date, in which case, where the failure case as of such representations and warranties date), except in the case of clause (iii) for such failures to be true and correct as of such times does would not constitute Company Material Adverse Effect). (d) The Company shall have performed or complied in all material respects with all agreements and covenants required by this Agreement reasonably be expected to be performed or complied with by it at or prior to the Closing Date. (e) Prior to or at the Closing, Parent shall have received a certificate, validly executed by the Secretary of the Company, certifying (i) as to the adoption of resolutions of the board of directors of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation of such transaction or (iii) have, individually or in the aggregate, a Company Material Adverse Effect; provided, solely for purposes of clause (ii) above, if one or more inaccuracies in Section 3.3 would be reasonably likely to cause the aggregate amount required to be paid by Parent or Merger Sub to consummate Merger, refinance the indebtedness of the Company, acquire, directly or indirectly, all of the outstanding equity interests in the Company’s subsidiaries and no pay all fees and expenses in connection therewith to increase by $500,000 or more, such judgment, order, decree, stipulation inaccuracy or injunction by any Governmental Entity inaccuracies will be considered material for purposes of competent jurisdiction shall be in effect.clause (ii) of this Section 6.2(a); (gb) Prior the Company shall have performed or complied with, in all material respects all agreements and covenants required to be performed or at complied with by it under this Agreement on or prior to the Closing, Effective Time; and (c) the Company shall have delivered in form and substance reasonably acceptable to Parent a certificate of certificate, dated the Chief Executive Officer Effective Time and signed by its chief executive officer or another senior officer on behalf of the Company, dated as of the Closing Date, certifying to the effect that the conditions specified set forth in this Section are 6.2(a) and Section 6.2(b) have been satisfied.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger shall be are subject to the satisfaction at (or prior to the Closing Date of each of the following conditions, any of which may be waived, in writing, exclusively waiver by Parent and Merger Sub) of the following further conditions: (a) The Required Shareholder Approval shall have been obtained. (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made contained in this Agreement (i) that are not qualified by Company Material Adverse Effect shall have been be true and correct as of the date of this Agreement Effective Time as though made on and as of the Closing Date Effective Time (without giving effect to any qualifications or limitations as to “materiality” or “Company Material Adverse Effect” set forth therein), except as does not constitute a Company Material Adverse Effect, except to the extent such representations and warranties expressly relate to made as of an earlier time (date, in which case, case as of such earlier date) except where the failure of such representations and warranties to be so true and correct would not, individually or in the aggregate, have a Company Material Adverse Effect and (ii) that are qualified by Company Material Adverse Effect shall be true and correct as of the Effective Time as though made on and as of the Effective Time (except to the extent expressly made as of an earlier date, in which case as of such times does not constitute earlier date); provided, however, that (A) the representations and warranties set forth in Section 4.2(a) and Section 4.8(a)(iii) shall be true and correct in all respects (except for immaterial deviations) as of the date hereof and as of the Closing Date as though made on and as of the Closing Date; and (B) the representations and warranties set forth in Section 4.5, shall be true and correct in all material respects, in each case, as of the date hereof and as of the Closing Date as though made on and as of the Closing Date; and (C) the representations and warranties set forth in Section 4.3, shall be true and correct in all respects, in each case, as of the date hereof and as of the Closing Date as though made on and as of the Closing Date, except where the failure of such representations and warranties to be so true and correct would not, individually or in the aggregate, have a materially and adversely affect the ability of the Company Material Adverse Effect).to consummate the transactions contemplated hereby; (db) The the Company shall have performed or complied in all material respects with all agreements and covenants its obligations hereunder required by this Agreement to be performed or complied with by it at or prior to the Closing Date.Closing; (ec) Prior to or at the Closing, Parent shall have received a certificate, validly executed certificate signed by the Secretary of the Company, certifying (i) as to the adoption of resolutions of the board of directors of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation of such transaction or (iii) have, individually or in the aggregate, a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effect. (g) Prior to or at the Closing, the Company shall have delivered in form and substance reasonably acceptable to Parent a certificate of the Chief Executive Officer chief financial officer of the Company, dated as of the Closing Date, to the effect that that, to the knowledge of such officer, the conditions specified set forth in Section 7.2(a) and Section 7.2(b) have been satisfied; and (d) since the date of this Section are satisfiedAgreement, there has not been any Company Material Adverse Effect.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger shall be transactions contemplated by this Agreement are subject to the satisfaction fulfillment at or prior to the Closing Date Effective Time of each of the following additional conditions, any or all of which may be waived, waived in writing, exclusively whole or part by Parent and Merger Subto the extent permitted by applicable Laws: (a) The Required Shareholder Approval shall have been obtained. (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made (i) set forth in this Agreement Section 3.3 shall have been be true and correct in all respects as of the date of this Agreement and as of the Closing Date as if made on and as of such date and time, (without giving effect to any qualifications or limitations as to “materiality” or “Company Material Adverse Effect” ii) set forth thereinin Section 3.2(a) and Section 3.21 shall be true and correct in all but de minimis respects as of the date of this Agreement and as of the Closing Date as if made on and as of such date and time (except for representations and warranties made as of a specified date, only as of the specified date) and (iii) set forth in this Agreement (other than those Sections specifically identified in clause (i) and (ii)), except as does not constitute a to the extent qualified by materiality or Company Material Adverse Effect, except to the extent such representations and warranties expressly relate to an earlier time (in which case, where the failure of such representations and warranties to shall be true and correct and, to the extent not so qualified, shall be true and correct in all material respects, in each case as of such times does not constitute Company Material Adverse Effectthe date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except for representations and warranties made as of a specified date, which need be true and correct, or true and correct in all material respects, as the case may be, only as of the specified date). (db) The Company shall have performed or complied in all material respects with all covenants and agreements and covenants contained herein required by this Agreement to be performed or complied with by it at or prior to the Closing Date. (e) Prior to or at the Closing, Parent shall have received a certificate, validly executed by the Secretary time of the Company, certifying Closing. (ic) as to Since the adoption date of resolutions of the board of directors of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which there shall not have been any effect, change, event or written consent via which such action was taken), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending occurrence that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation had or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement reasonably be expected to be rescinded following consummation of such transaction or (iii) have, individually or in the aggregate, a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effect. (gd) Prior to or at the Closing, the The Company shall have delivered in form and substance reasonably acceptable to Parent a certificate certificate, dated the date of the Chief Executive Officer Closing, signed by an executive officer of the Company, dated certifying as of the Closing Date, to the effect that fulfillment of the conditions specified in this Section are satisfied7.2(a), Section 7.2(b) and Section 7.2(c). (e) The holders of no more than 10% of the Company Shares shall have validly served a written objection under Section 238(2) of the Cayman Companies Law.

Conditions to the Obligations of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub to consummate and effect the Merger shall be is subject to the satisfaction at satisfaction, or, to the extent permitted by Applicable Law, waiver by Parent of, on or prior to the Closing Date of each Closing, of the following conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval shall have been obtained. (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made in this Agreement set forth in: (i) Sections 4.04(a), 4.04(b) and 4.04(c) (Capitalization) shall have been 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 such date (without giving effect to except for any representation or warranty that is expressly made as of a specified date, in which case such representation or warranty shall be true and correct only as of such specified date), except for de minimis accuracies, (ii) Section 4.02 (Corporate Authorization), Section 4.03(a)(i) (Consents and Approvals; No Violations), Sections 4.04(d) and 4.04(e) (Capitalization) and Section 4.24 (Brokers’ Fees) shall be true and correct in all material respects (disregarding all qualifications or limitations as to “materiality,” or “Company Material Adverse Effect” and words of similar import set forth therein) as of the date of this Agreement and as of the Closing Date as though made on and as of such date (except for any representation or warranty that is expressly made as of a specified date, in which case such representation or warranty shall be so true and correct only as of such specified date), except ; and (iii) Article 4 (other than the representations and warranties referred to in the foregoing clauses (i) and (ii)) shall be true and correct (disregarding all qualifications or limitations as does not constitute a to “materiality,” “Company Material Adverse Effect” and words of similar import set forth therein) as of the date of this Agreement and as of the Closing Date as though made on and as such date (except for any such representation or warranty that is expressly made as of a specified date, in which case such representation or warranty shall be so true and correct only as of such specified date), except to in the extent such representations and warranties expressly relate to an earlier time case of this clause (in which caseiii) only, where the failure of such representations and warranties to be so true and correct as of such times does has not constitute Company Material Adverse Effect). (d) The Company shall have performed or complied in all material respects with all agreements had and covenants required by this Agreement would not reasonably be expected to be performed or complied with by it at or prior to the Closing Date. (e) Prior to or at the Closing, Parent shall have received a certificate, validly executed by the Secretary of the Company, certifying (i) as to the adoption of resolutions of the board of directors of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation of such transaction or (iii) have, individually or in the aggregate, a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effect.; (gb) Prior the Company shall have performed and complied in all material respects with all covenants required to be performed or complied with by the Company under this Agreement on or prior to the Closing Date; (c) since the date of this Agreement, no Company Material Adverse Effect shall have occurred; (d) Parent shall have received at the ClosingClosing a certificate signed on behalf of the Company by an authorized officer of the Company certifying that the conditions set forth in Section 7.02(a), Section 7.02(b) and Section 7.02(c) have been satisfied; and (e) the Company shall have delivered in form and substance reasonably acceptable to Parent and Merger Sub a certificate of the Chief Executive Officer of the Companyduly completed and executed affidavit, dated as of the Closing DateDate and issued in form and substance as required pursuant to Treasury Regulations Sections 1.897-2(h) and 1.1445-2(c), certifying under penalties of perjury that the Company Common Stock is not a United States real property interest within the meaning of Section 897(c) of the Code, accompanied by an original signed notice to be delivered to the effect that IRS in accordance with the conditions specified in this provisions of Treasury Regulations Section are satisfied1.897-2(h)(2), together with written authorization for Parent to deliver such notice to the IRS on behalf of the Company following the Closing.

Conditions to the Obligations of Parent and Merger Sub. The In addition to the conditions set forth in Section 7.1, the respective obligations of Parent and Merger Sub to consummate and effect the Merger shall be are subject to the satisfaction or (to the extent permitted by Law) waiver by Parent at or prior to the Merger Closing Date of each of the following further conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval shall have been obtained. (b) No Governmental Entity each of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made (i) set forth in this Agreement Section 4.2(a) and (c) (Capitalization; Subsidiaries) and Section 4.3 (Authority Relative to Agreement) shall have been be true and correct in all respects at and as of the date of this Agreement and the Merger Closing Date (except, with respect to Section 4.2(a) and (c), to the extent that any inaccuracies would be de minimis, in the aggregate), (ii) set forth in Section 4.10(a) (Absence of Company Material Adverse Effect) shall be true and correct in all respects at and as of the date of this Agreement and the Merger Closing Date Date, and (iii) set forth in Article IV hereof (other than Section 4.2(a) and (c), Section 4.3 and Section 4.10(a)), without giving effect to any qualifications or limitations as to “materiality” materiality or “Company Material Adverse Effect” set forth Effect or other similar qualifications contained therein), except shall be true and correct at and as does not constitute a Company Material Adverse Effect, of the date of this Agreement and the Merger Closing Date (except to the extent such representations and warranties expressly relate to made as of an earlier time (date, in which case, where the failure case as of such representations and warranties date), except in the case of clause (ii) for such failures to be true and correct as of such times does would not constitute constitute, individually or in the aggregate, a Company Material Adverse Effect).; (db) The the Company shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by it at on or prior to the Merger Closing Date.; (ec) Prior to or at since the Closing, Parent shall have received a certificate, validly executed by the Secretary date of the Company, certifying (i) as to the adoption of resolutions of the board of directors of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which there shall not have occurred any change, effect, development or written consent via which such action was taken), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation of such transaction or (iii) havecircumstance that, individually or in the aggregate, constitutes or is reasonably likely to constitute a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effect.; and (gd) Prior to or at the Closing, the Company shall have delivered in form and substance reasonably acceptable to Parent a certificate of certificate, dated the Chief Executive Officer Merger Closing Date and signed by an executive officer of the Company, dated as of the Closing Date, certifying to the effect that the conditions specified set forth in this Section are 7.2(a), Section 7.2(b) and Section 7.2(c) have been satisfied.

Conditions to the Obligations of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub to consummate and effect the Merger shall be is subject to the satisfaction satisfaction, or, to the extent permitted by Law, waiver by Parent of, at or prior to the Closing Date of each Closing, of the following conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval shall have been obtained. (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made in this Agreement set forth in: (i) Section 4.01 (Organization and Good Standing), Section 4.02 (Corporate Power; Enforceability), Section 4.03 (Company Board Approval; Fairness Opinion; Anti-Takeover Laws), Section 4.04(a)(i) (Non-Contravention), Section 4.06(b)(i) (second sentence only), Section 4.06(b)(ii) and Section 4.06(b)(iii) (Stock Reservation and Awards), the first sentence of Section 4.06(d) (Company Stock Plans and Award Agreements), Section 4.06(e) (Other Rights), the second sentence of Section 4.07(b) (Power and Enforceability), Section 4.07(c) (Subsidiary Securities) and Section 4.29 (Brokers) (A) that are not qualified by “materiality,” “Company Material Adverse Effect” and words of similar import set forth therein shall have been be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as though made on and as of such date (except for any such representation or warranty that is expressly made as of a specified date, in which case such representation or warranty shall be so true and correct only on and as of such specified date), and (B) that are qualified by “materiality,” “Company Material Adverse Effect” and words of similar import set forth therein shall be true and correct in all respects (without giving effect to any disregarding all qualifications or limitations as to “materiality,” or “Company Material Adverse Effect” and words of similar import set forth therein) as of the date of this Agreement and as of the Closing Date as though made on and as of such date (except for any such representation or warranty that is expressly made as of a specified date, in which case such representation or warranty shall be so true and correct only on and as of such specified date); (ii) Section 4.06(a) (Capital Stock), the first sentence of Section 4.06(b)(i) (Stock Reservation and Awards) and Section 4.06(c) (Company Securities) 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 such date (except for any such representation or warranty that is expressly made as of a specific date, in which case such representation or warranty shall be so true and correct only on and as of such specified date), except in the case of this clause (ii) only, for such failures to be true and correct that are de minimis; and (iii) Article 4 (other than the representations and warranties referred to in the foregoing clauses (i) and (ii)) shall be true and correct (disregarding all qualifications or limitations as does not constitute a to “materiality,” “Company Material Adverse Effect” and words of similar import set forth therein) as of the date of this Agreement and as of the Closing Date as though made on and as of such date (except for any such representation or warranty that is expressly made as of a specified date, in which case such representation or warranty shall be so true and correct only on and as of such specified date), except to in the extent such representations and warranties expressly relate to an earlier time case of this clause (in which caseiii) only, where the failure of such representations and warranties to be true and correct as of such times does has not constitute Company Material Adverse Effect). (d) The Company shall have performed or complied in all material respects with all agreements had and covenants required by this Agreement would not reasonably be expected to be performed or complied with by it at or prior to the Closing Date. (e) Prior to or at the Closing, Parent shall have received a certificate, validly executed by the Secretary of the Company, certifying (i) as to the adoption of resolutions of the board of directors of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation of such transaction or (iii) have, individually or in the aggregate, a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effect.; (gb) Prior to or at the Closing, the Company shall have delivered performed and complied in form and substance reasonably acceptable all material respects with all covenants required to Parent a certificate of be performed or complied with by the Chief Executive Officer of the Company, dated as of Company under this Agreement on or prior to the Closing Date; (c) since the date of this Agreement, to no Company Material Adverse Effect shall have occurred and be continuing; and (d) Parent shall have received at the effect Closing a certificate signed on behalf of the Company by an authorized officer of the Company certifying that the conditions specified set forth in this Section are 7.02(a), Section 7.02(b) and Section 7.02(c) have been satisfied.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger shall be are subject to the satisfaction of the following conditions: (a) the Company shall have performed in all material respects each of its obligations under this Agreement required to be performed by it at or prior to the Closing Date of each of the following conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval shall have been obtained.Effective Time; (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made set forth in Sections 4.01, 4.02, 4.04(a), 4.06, 4.23, 4.24, 4.25 and 4.26 of this Agreement shall be true and correct in all material respects as of the date of this Agreement and at and as of the Effective Time (except to the extent any such representation or warranty expressly relates to an earlier date or period, in which case as of such date or period); (ii) the representations and warranties of the Company set forth in Section 4.05 of this Agreement shall be true and correct in all respects (except for de minimis inaccuracies) as of the date of this Agreement and at and as of the Effective Time (except to the extent any such representation or warranty expressly relates to an earlier date or period, in which case as of such date or period); (iii) the representation and warranty of the Company set forth in Section 4.10(b) of this Agreement shall be true and correct in all respects as of the date of this Agreement; and (iv) the representations and warranties of the Company set forth in this Agreement (other than those referred to in the preceding clauses (i)-(iii)) shall have been be true and correct as of the date of this Agreement and at and as of the Closing Date Effective Time (without giving effect to any qualifications or limitations as to “materiality” or “Company Material Adverse Effect” set forth therein), except as does not constitute a Company Material Adverse Effect, except to the extent any such representations and warranties representation or warranty expressly relate relates to an earlier time (date or period, in which casecase as of such date or period), except where the failure of such representations and warranties to be so true and correct as of such times does has not constitute Company Material Adverse Effect). (d) The Company shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by it at or prior to the Closing Date. (e) Prior to or at the Closing, Parent shall have received a certificate, validly executed by the Secretary of the Company, certifying (i) as to the adoption of resolutions of the board of directors of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken)had, and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall would not reasonably be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement expected to be rescinded following consummation of such transaction or (iii) have, individually or in the aggregate, a Company Material Adverse Effect, in the case of clauses (i), (ii) and no (iv) disregarding for this purpose all “Company Material Adverse Effect” and “materiality” qualifications contained in such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effect.representations and warranties; (gc) Prior there shall not have occurred since the date hereof a Company Material Adverse Effect; (d) the closing condition in Section 9.01(a) (if the Applicable Law or legal prohibition relates to or any of the matters referenced in Section 9.01(c)) shall have been satisfied without the imposition of a Burdensome Condition (including any Burdensome Condition that would come into effect at the Closing, ); (e) the closing condition in Section 9.01(c) shall have been satisfied without the imposition of a Burdensome Condition (including any Burdensome Condition that would come into effect at the Closing); and (f) the Company shall have delivered in form and substance reasonably acceptable to Parent a certificate signed by an executive officer of the Chief Executive Officer of the Company, Company dated as of the Closing Date, to the effect Date certifying that the conditions specified in paragraphs (a), (b) and (c) of this Section are 9.02 have been satisfied.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger shall be are also subject to the satisfaction at or waiver by Parent on or prior to the Closing Date of each of the following conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval shall have been obtained. (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company contained in Section 2.1(a) (Organization and Qualification) Section 2.3 (Capitalization) and Section 2.4(a) (Authority) shall be true and correct in all material respects (except for representations and warranties in any such sections qualified as to materiality or a Company Material Adverse Effect, which 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 or as of the Closing Date (except to the extent expressly made as of an earlier date, in which case, they shall be true and correct in all material respects or in all respects, as the case may be, as of such earlier date) and (ii) the representations and warranties of the Company in this Agreement other than those specified in the preceding clause (i) shall have been be true and correct as of the date of this Agreement and as of the Closing Date as though made on or as of the Closing Date (without giving effect to any qualifications or limitations as to “materiality” or “Company Material Adverse Effect” set forth therein), except as does not constitute a Company Material Adverse Effect, except to the extent such representations and warranties expressly relate to made as of an earlier time (date, in which casecase they shall be true and correct as of such earlier date), where the failure except for any such failures of any of such representations and warranties to be so true and correct (without giving effect to any qualification as of such times does not constitute to materiality or a Company Material Adverse Effect).) that would not, individually or in the aggregate, have a Company Material Adverse Effect; (db) The Company shall have performed or complied in all material respects with all of its material covenants, agreements and covenants obligations required by this Agreement to be performed or complied with by it under this Agreement at or prior to the Closing Date.; (ec) Prior to or at the Closing, Parent shall have received a certificate, validly executed by the Secretary of the Company, certifying (i) as to the adoption of resolutions of the board of directors certificate signed on behalf of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy an executive officer of the meeting minutes at which or written consent via which such action was taken), Company to the effect that the conditions in clauses (a) and (iib) that the Required Shareholder Approval has above have been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval.so satisfied; and (fd) No litigation brought by a Governmental Entity From the date of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation through the Effective Time, there shall not have occurred any events, conditions, states of such transaction facts or (iii) havedevelopments that have had, individually or in the aggregate, a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction by any Governmental Entity the effects of competent jurisdiction shall be in effect. (g) Prior to or at the Closing, the Company shall have delivered in form and substance reasonably acceptable to Parent a certificate of the Chief Executive Officer of the Company, dated as of which are continuing on the Closing Date, to the effect that the conditions specified in this Section are satisfied.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger shall be are subject to the satisfaction of the following conditions: (a) the Company shall have performed in all material respects each of its obligations under this Agreement required to be performed by it at or prior to the Closing Date of each of the following conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub:Effective Time; (a) The Required Shareholder Approval shall have been obtained. (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made set forth in Sections ‎‎4.01, ‎‎4.02, ‎4.04(a), 4.06, ‎4.23, ‎4.24, ‎4.25 and ‎4.26 of this Agreement shall be true and correct in all material respects as of the date of this Agreement and at and as of the Effective Time (except to the extent any such representation or warranty expressly relates to an earlier date or period, in which case as of such date or period); (ii) the representations and warranties of the Company set forth in Section ‎4.05 of this Agreement shall be true and correct in all respects (except for de minimis inaccuracies) as of the date of this Agreement and at and as of the Effective Time (except to the extent any such representation or warranty expressly relates to an earlier date or period, in which case as of such date or period); (iii) the representation and warranty of the Company set forth in ‎Section 4.10(b) of this Agreement shall be true and correct in all respects as of the date of this Agreement; and (iv) the representations and warranties of the Company set forth in this Agreement (other than those referred to in the preceding clauses ‎(i)-(iii)) shall have been be true and correct as of the date of this Agreement and at and as of the Closing Date Effective Time (without giving effect to any qualifications or limitations as to “materiality” or “Company Material Adverse Effect” set forth therein), except as does not constitute a Company Material Adverse Effect, except to the extent any such representations and warranties representation or warranty expressly relate relates to an earlier time (date or period, in which casecase as of such date or period), except where the failure of such representations and warranties to be so true and correct as of such times does has not constitute Company Material Adverse Effect). (d) The Company shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by it at or prior to the Closing Date. (e) Prior to or at the Closing, Parent shall have received a certificate, validly executed by the Secretary of the Company, certifying (i) as to the adoption of resolutions of the board of directors of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken)had, and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall would not reasonably be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement expected to be rescinded following consummation of such transaction or (iii) have, individually or in the aggregate, a Company Material Adverse Effect, in the case of clauses (i), (ii) and no (iv) disregarding for this purpose all “Company Material Adverse Effect” and “materiality” qualifications contained in such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effect.representations and warranties; (gc) Prior there shall not have occurred since the date hereof a Company Material Adverse Effect; (d) the closing condition in ‎Section 9.01(a) (if the Applicable Law or legal prohibition relates to or any of the matters referenced in ‎Section 9.01(c)) shall have been satisfied without the imposition of a Burdensome Condition (including any Burdensome Condition that would come into effect at the Closing, ); (e) the closing condition in ‎Section 9.01(c) shall have been satisfied without the imposition of a Burdensome Condition (including any Burdensome Condition that would come into effect at the Closing); and (f) the Company shall have delivered in form and substance reasonably acceptable to Parent a certificate signed by an executive officer of the Chief Executive Officer of the Company, Company dated as of the Closing Date, to the effect Date certifying that the conditions specified in paragraphs ‎(a), ‎(b) and ‎(c) of this Section are ‎Section 9.02 have been satisfied.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger shall be subject to the satisfaction or waiver (to the extent permitted by applicable Law) by Parent in writing at or prior to the Closing Date of each Effective Time of the following additional conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval shall have been obtained. (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has Each of the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made set forth in this Agreement the first sentence of Section 6.1(a) [(Due Organization, Good Standing and Power)], Section 6.2(a) [(Authorization)], Section 6.4(a) and (b) [(Capitalization)] (solely with respect to the Company), and Section 6.18 [(Broker’s or Finder’s Fees)] shall be true and correct in all respects, except where the failure to be so true and correct is de minimis, at and as of the Closing Date, except to the extent that such representations and warranties refer specifically to an earlier date, in which case such representations and warranties shall have been true and correct in all respects, except where the failure to be so true and correct is de minimis, as of such earlier date, (ii) each of the date representations and warranties of this Agreement the Company set forth in Section 6.4(a) and (b) [(Capitalization)] (other than with respect to the Company as covered by clause (i) above) shall be true and correct in all material respects at and as of the Closing Date Date, except to the extent that such representations and warranties refer specifically to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date, (iii) each of the representations and warranties of the Company set forth in Section 6.6(a) [(Absence of Certain Changes)] shall be true and correct in all respects at and as of the Closing Date, (iv) each of the representations and warranties of the Company set forth in Article VI [(Representations and Warranties of the Company)] not referenced in clause (i), (ii) or (iii) of this Section 9.3(a) shall be true and correct (without giving effect to any qualifications or limitations as to “material”, “materially”, “materiality” or ”, “Company Material Adverse Effect”, “material adverse effect”, “material adverse change” set forth thereinor other qualification based on materiality contained in any such representation or warranty) at and as of the Closing Date, except to the extent that such representations and warranties refer specifically to an earlier date, in which case such representations and warranties shall have been true and correct (without giving effect to any “material”, “materially”, “materiality”, “Company Material Adverse Effect”, “material adverse effect”, or “material adverse change” or other qualification based on materiality contained in any such representation or warranty) as of such earlier date, except, in each case under this clause (iii), except as does would not constitute have a Company Material Adverse Effect, and (v) each of the representations and warranties of MIC set forth in first sentence of Section 5.1 [(Due Organization, Good Standing and Power)], Section 5.2(a) [(Authorization)], Section 5.5(a) [(Capitalization)] and Section 5.9 [(Broker’s or Finder’s Fees)] shall be true and correct in all respects, except where the failure to be so true and correct is de minimis at and as of immediately prior to the consummation of the Reorganization, except to the extent that such representations and warranties expressly relate refer specifically to an earlier time (date, in which case, where the failure of case such representations and warranties shall have been true and correct in all respects, except where the failure to be so true and correct was de minimis, as of such earlier date; and (vi) each of the representations and warranties of MIC set forth in Article V [(Representations and Warranties of MIC)] not referenced in clause (v) of this Section 9.3(a) shall be true and correct as of such times does not constitute (without giving effect to any “material”, “materially”, “materiality”, “Company Material Adverse Effect”, “material adverse effect”, “material adverse change” or other qualification based on materiality contained in any such representation or warranty) at and as of immediately prior to the consummation of the Reorganization, except to the extent that such representations and warranties refer specifically to an earlier date, in which case such representations and warranties shall have been true and correct (without giving effect to any “material”, “materially”, “materiality”, “Company Material Adverse Effect”, “material adverse effect”, or “material adverse change” or other qualification based on materiality contained in any such representation or warranty) as of such earlier date, except, in each case under this clause (vi)., as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; (db) (i) The Company shall have performed or complied in all material respects with all its obligations, agreements and covenants required by under this Agreement to be performed or complied with by it at or prior to the Closing Date. (e) Prior to or at the Closing, Parent shall have received a certificate, validly executed by the Secretary of the Company, certifying (i) as to the adoption of resolutions of the board of directors of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken), Effective Time and (ii) that the Required Shareholder Approval has been obtained MIC shall have performed or complied in all material respects with its obligations, agreements and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by covenants under this Agreement to be rescinded following performed or complied with by it at or prior to the consummation of such transaction or the Reorganization; (iiic) haveSince the date of this Agreement, individually or in the aggregate, a there shall not have occurred any Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effect.Effect that is continuing; (gd) Prior to or at the Closing, the The Company shall have delivered in form and substance reasonably acceptable to Parent a certificate of the Chief Executive Officer of the Companycertificate, dated as of the Closing Date, signed by an officer of the Company and certifying as to the effect that satisfaction of the conditions specified in Section 9.3(a), Section 9.3(b) and Section 9.3(c); (i) Any waiting periods under the HSR Act with respect to the transactions contemplated by this Section are satisfiedAgreement shall have expired or been terminated, (ii) the CFIUS Approval shall have been obtained, and (iii) any approval by the HPUC under Hawaii Revised Statutes Chapter 269-19 shall have become a Final Order, and, in each case of clauses (i) through (iii) shall not have imposed or required any Conditions that, individually or in the aggregate, constitute a Burdensome Condition; (f) The MIC Indemnity shall be in full force and effect unless it has expired in accordance with its terms; and (g) The Company shall have delivered to Parent the Manager Release unless Parent has not delivered the Manager Payments to the Company or its designee as directed by the Company in writing prior to the Closing.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger shall be are subject to the satisfaction at or prior (or, to the Closing Date of each extent permitted by Applicable Law, written waiver by Parent) of the following additional conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval shall have been obtained. (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made contained in this Agreement ‎‎Section 4.01(a) (Corporate Existence and Power), ‎Section 4.02 (Corporate Authorization), ‎Section 4.04(a) (Non-Contravention), ‎Section 4.22 (Finders’ Fees) and ‎Section 4.23 (Opinion of Financial Advisor) shall have been be true and correct in all material respects (other than any such representations and warranties qualified by materiality or Company Material Adverse Effect qualifications, which shall be true and correct in all respects), in each case, as of the date of this Agreement and as of the Closing as if made at and as of such time (other than representations and warranties that by their terms address matters only as of another specified time, which shall be so true and correct as of such specified time), (ii) the representations and warranties in ‎Section 4.05(a) and ‎Section 4.05(b) (Capitalization) shall be true and correct in all respects except for any de minimis inaccuracies as of the date of this Agreement and as of the Closing Date (without giving effect to other than any qualifications or limitations such representation and warranty that by its terms addresses matters only as to “materiality” or “of another specified time, which shall be true and correct in all respects except for any de minimis inaccuracies as of such specified time), (iii) the representations and warranties of the Company contained in ‎Section 4.10(b) (Absence of Certain Changes) shall be true and correct in all respects as of the date of this Agreement and as of the Closing as if made at and as of such time, (iv) the other representations and warranties of the Company contained in this Agreement (disregarding all materiality and Company Material Adverse Effect” set forth Effect qualifications contained therein), except ) shall be true and correct in all respects as does not constitute a Company Material Adverse Effect, except to of the extent date of this Agreement and as of the Closing Date as if made at and as of such time (other than representations and warranties expressly relate to an earlier time (that by their terms address matters only as of another specified time, which shall be so true only as of such time), with only such exceptions in which case, the case of this clause ‎(iv) where the failure of such representations and warranties to be so true and correct as of such times does has not constitute had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect)Effect and (v) Parent shall have received a certificate signed by an executive officer of the Company on behalf of the Company to the effect that the conditions set forth in foregoing clauses ‎(i) – ‎(iv) and ‎Section 9.02(b) and ‎9.02(c) have been satisfied. (db) The Company shall have performed or and complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by it at or prior to the Closing DateEffective Time. (ec) Prior to or at Since the Closing, Parent shall have received a certificate, validly executed by the Secretary date of the Company, certifying (i) as to the adoption of resolutions of the board of directors of the Company whereby this Agreement, the Merger no Company Material Adverse Effect shall have occurred and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken)be continuing, and (ii) there shall not have been any Effect that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation of such transaction or (iii) havewould, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effect. (g) Prior to or at the Closing, the Company shall have delivered in form and substance reasonably acceptable to Parent a certificate of the Chief Executive Officer of the Company, dated as of the Closing Date, to the effect that the conditions specified in this Section are satisfied.

Conditions to the Obligations of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub to consummate and effect the Merger shall be is subject to the satisfaction at or prior or, to the Closing Date extent permitted by Applicable Law, waiver, as of each the Closing, of the following conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval shall have been obtained. (i) Other than the representations and warranties set forth in Section 4.01 (Corporate Existence and Power), Section 4.02 (Corporate Authorization), Section 4.05 (Capitalization), clause (b) No Governmental Entity of competent jurisdiction shall have enactedSection 4.09 (Absence of Certain Changes), issuedand Section 4.23 (Brokers’ Fees), promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made set forth in Article 4 of this Agreement shall have been be true and correct (without giving effect to any materiality or Company Material Adverse Effect qualifications set forth therein) as of the date hereof and as of this Agreement the Closing Date as if made at and as of the Closing Date (without giving effect to any qualifications or limitations as to “materiality” or “Company Material Adverse Effect” set forth therein), except as does not constitute a Company Material Adverse Effect, except to the extent that any such representations representation and warranties warranty expressly relate to speaks as of an earlier time (date, in which case, where the failure of case such representations representation and warranties to warranty shall be true and correct as of such times does earlier date), except for such failures to be so true and correct that, individually or in the aggregate, have not constitute had and would not reasonably be expected to have a Company Material Adverse Effect, (ii) the representations and warranties set forth in Section 4.01 (Corporate Existence and Power), Section 4.02 (Corporate Authorization), and Section 4.23 (Brokers’ Fees) shall be true and correct in all material respects (without giving effect to any materiality or Company Material Adverse Effect qualifications set forth therein) as of the date hereof and as of the Closing Date as if made at and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct in all material respects as of such earlier date), and (iii) the representations and warranties set forth in Section 4.05 (Capitalization) and clause (b) of Section 4.09 (Absence of Certain Changes) shall be true and correct in all respects as of the date hereof and as of the Closing Date as if made at and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct in all respects as of such earlier date), except, in the case of Section 4.05 only, for such inaccuracies as are de minimis taken as a whole. (db) The the Company shall have performed or complied in all material respects with all agreements and covenants obligations required by this Agreement to be performed or complied with by it under this Agreement at or prior to the Closing Date.Closing; (ec) Prior to or at the Closing, Parent shall have received at the Closing a certificate, validly executed by the Secretary of the Company, certifying (i) as to the adoption of resolutions of the board of directors certificate signed on behalf of the Company whereby by the Chief Executive Officer or the Chief Financial Officer of the Company certifying that the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied; and (d) since the date of this Agreement, the Merger there shall not have occurred and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation of such transaction or (iii) have, individually or in the aggregate, a continuing any Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effect. (g) Prior to or at the Closing, the Company shall have delivered in form and substance reasonably acceptable to Parent a certificate of the Chief Executive Officer of the Company, dated as of the Closing Date, to the effect that the conditions specified in this Section are satisfied.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger shall be are subject to the satisfaction of the following further conditions (any one of which may be waived in whole or part by Parent in its sole discretion by giving written notice to the Company in compliance with Section 10.1 hereof): (a) the Company shall have performed all of its material obligations hereunder required to be performed by it at or prior to the Closing Date of each of the following conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval shall have been obtained.Effective Time; (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties each of the Company Special Representations and the representations made in this Agreement pursuant to Section 3.21 (brokers) shall have been true and correct accurate in all material respects as of the date of this Agreement and shall be accurate in all material respects as of the Closing Date as if made on and as of the Closing Date (without giving effect except for any such representations and warranties made as of a specific date, which shall have been accurate in all material respects as of such date); provided, however, that, other than with respect to any qualifications or limitations as to “materiality” or “Company Material Adverse Effect” set forth thereinSection 3.4(b), for purposes of determining the accuracy of such representations and warranties as of the foregoing dates, all materiality qualifications limiting the scope of such representations and warranties shall be disregarded; (c) each of the representations and warranties of the Company (other than the Special Representations and the representations made pursuant to Section 3.21 (brokers)) shall have been accurate in all respects as of the date of this Agreement and shall be accurate in all respects as of the Closing Date as if made on and as of the Closing Date (except for any such representations and warranties made as does of a specific date, which shall have been accurate in all respects as of such date); provided, however, that: (i) for purposes of determining the accuracy of such representations and warranties as of the foregoing dates, all materiality qualifications limiting the scope of such representations and warranties shall be disregarded and (ii) any inaccuracies in such representations and warranties will be disregarded if all such inaccuracies (considered collectively) do not constitute constitute, and would not reasonably be expected to have or result in, a Company Material Adverse Effect, except to the extent such representations and warranties expressly relate to an earlier time (in which case, where the failure of such representations and warranties to be true and correct as of such times does not constitute Company Material Adverse Effect).; (d) The no Company Material Adverse Effect shall have performed or complied occurred and be continuing since the Agreement Date, provided, however, that for purposes of determining if there has been a Company Material Effect, any information included in any update to Section 3.11 of the Company Disclosure Schedule following the Agreement Date shall be taken into account in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by it at or prior to the Closing Date.respects; (e) Prior the Company shall have delivered a certificate executed on behalf of the Company by an executive officer of the Company certifying the satisfaction of the conditions set forth in Sections 7.2(a), (b), (c), (d), (p), (s) and (v); (f) the Company shall have delivered a certificate of the Secretary of the Company certifying the names and signatures of the officers of the Company authorized to or at sign this Agreement and the ClosingRelated Agreements, to the extent it is a party, and the other documents to be delivered hereunder and thereunder; (g) the Company shall have delivered the Capitalization and Closing Payment Amount Certificate to Parent; (h) each of the agreements set forth on Schedule 7.2(h) hereto shall have been terminated and of no further force and effect; (i) the Company shall have delivered payoff letters, invoices and such other documentation as Parent shall reasonably request in order to evidence the discharge the Indebtedness Amount and any Transaction Costs; (j) the Company shall have received delivered (A) a certificatecopy of the certificate of incorporation of the Company, validly executed as amended through the Effective Time certified by the Secretary of State; (B) a certified copy of the bylaws of the Company, certifying ; (iC) as to the adoption of resolutions certified minutes of the board of directors of the Company whereby this Agreement, approving the Merger and the transactions contemplated hereunder were approved by the board of directors transaction related thereto; and (attaching D) a certified copy of the meeting minutes at Stockholder Approval; (k) the Company shall have delivered good standing certificates for the Company from the Secretary of State of the State of Delaware and from the Secretary of State in each other jurisdiction in which the properties owned or written consent via which leased by the Company, or the operation of its business in such action was takenjurisdiction, requires the Company to qualify to do business as a foreign corporation, in each case dated as of a date not earlier than five (5) business days prior to the Closing Date; (l) the Company shall have delivered a properly executed statement from the Company that meets the requirements of Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h)(1), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy dated as of the Closing Date and in form and substance reasonably satisfactory to Parent, along with written authorization for Parent to deliver such notice of meeting, minutes and/or other documents evidencing receipt form to the IRS on behalf of the Required Shareholder Approval.Company upon Closing; (fm) No litigation brought by a Governmental Entity the Company shall have obtained the Tail D&O Policy and shall have uploaded to the dataroom evidence to Parent that such insurance coverage is in full force and effect and evidence of competent jurisdiction the payment of the premiums therefore; (n) holders of no more than three percent (3.0%) of the aggregate outstanding Company Common Stock and Company Preferred Stock (calculated on an as-converted to Company Common Stock basis) as of the Effective Time shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgmenthave elected to, orderexercise dissenters’, decree, stipulation appraisal or injunction would similar rights under Delaware Law or California Law with respect to such shares; (o) the Company shall have uploaded to the dataroom (i) prevent consummation audited financial statements (including balance sheet, income statement, statement of cash flows, statement of stockholders’ equity and footnotes to the foregoing) of the transactions contemplated Company and its Subsidiaries as of December 31, 2010, and for the twelve (12)-month period ended on such date, together with an unqualified audit report in respect of such financial statements issued by this Agreementthe relevant auditors, (ii) cause unaudited financial statements (including balance sheet, income statement, statement of cash flows, statement of stockholders’ equity, as well as footnotes to the transactions contemplated by this Agreement foregoing to the extent they would be rescinded following consummation required or customary for the presentation of such transaction or financial statements on a Quarterly Report on Form 10-Q), reviewed by the Company’s auditors in accordance with Statement on Auditing Standards No. 100, of the Company and its Subsidiaries as of June 30, 2011, and June 30, 2010, and for each of the six (6)-month periods ended on such dates, and, (iii) have, individually or solely in the aggregateevent that the Closing Date has not occurred on or before October 29, 2011, the unaudited financial statements (including balance sheet, income statement, statement of cash flows, statement of stockholders’ equity, as well as footnotes to the foregoing to the extent they would be required or customary for the presentation of such financial statements on a Quarterly Report on Form 10-Q) of the Company and its Subsidiaries as of September 30, 2011 and September 30, 2010 and for the nine (9) month periods ended on such dates (collectively, the “Closing Financials”), in each case, prepared in accordance with GAAP; (p) the Closing Financials, if as of June 30, 2011, shall not deviate from the June 30, 2010 financial statements included in the Financial Statements provided to Parent and attached to the Company Disclosure Schedule, except to the extent for any such deviations that, taken as a whole, do not constitute, and would not reasonably be expected to have or result in, a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effect.; (gq) Prior to or at the Closing, the Company shall have uploaded to the dataroom evidence reasonably satisfactory to Parent that either (i) any stockholder vote required pursuant to Section 5.3 (280G matters) was solicited in conformity with Section 280G of the Code and the regulations promulgated thereunder and the requisite stockholder approval was obtained with respect to any payments and/or benefits that were subject to the stockholder vote (the “280G Approval”), or (ii) the 280G Approval was not obtained and as a consequence, that such “parachute payments” shall not be made or provided, pursuant to the waivers of those payments and/or benefits which were executed by the affected individuals; (r) the Stockholder Representative and the Escrow Agent shall have executed and delivered the Escrow Agreement; (s) each of the Non-Competition Agreements shall remain in full force and effect and no Company Stockholder party to a Non-Competition Agreement shall have notified the Company or Parent of such Company Stockholder’s intention to terminate such Non-Competition Agreement; (t) the Company shall have uploaded to the dataroom evidence in form and substance reasonably acceptable to Parent a certificate of the Chief Executive Officer receipt of the third party consents set forth on Schedule 7.2(t) hereto; (u) in the event the Company completes the disposition of any of the patents set forth on Schedule 7.2(u) prior to the Closing, Parent shall have received counterparts of a license agreement in substantially the form of Exhibit D hereto, granting a license to the patents and patent applications set forth on Schedule 7.2(u) hereto to Parent and the Surviving Corporation; and (v) there shall be no Action pending against Parent, Merger Sub or the Company or any of their respective Affiliates by any Governmental Authority (i) seeking to enjoin or make illegal, delay or otherwise restrain or prohibit the consummation of the Merger; (ii) that would result in the Merger being rescinded following consummation; (iii) seeking material damages in connection with the Merger; (iv) seeking to compel the Company, dated Parent, Merger Sub or any Subsidiary of Parent to dispose of or hold separate any material assets as a result of the Closing DateMerger; or (v) seeking to impose any criminal sanctions or liability on Parent, to Merger Sub or the effect that Company in connection with the conditions specified in this Section are satisfiedMerger.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger shall be are subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by Parent) of the following further conditions: (a) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Closing Date of each of the following conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval shall have been obtained.Effective Time; (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) has the Parent Condition Regulatory Approvals shall have been made, obtained or received (or the waiting periods with respect thereto as set forth in Section 9.02(b) of the Parent Disclosure Schedule shall have expired or been terminated), as applicable, and shall be in full force and effect, in each case in this Section 9.02(b), without the imposition of a Burdensome Condition (including any Burdensome Condition that would come into effect at the Closing), and no Applicable Law or Order shall be in force and effect that would impose a Burdensome Condition (including any Burdensome Condition that would come in effect at the Closing) and no litigation or similar legal action by any Governmental Authority (in any jurisdiction in which Parent, the Company or any of prohibiting the Merger or making the Merger illegal.their respective Subsidiaries conducts material operations) seeking to impose a Burdensome Condition shall be pending; (c) The (i) the representations and warranties of the Company made contained in this Agreement Section 4.05(a) shall have been be true and correct correct, subject only to de minimis exceptions, at and as of the date of this Agreement and at and as of the Closing Date as if made at and as of the Closing (without giving effect to any qualifications or limitations or, if such representations and warranties are given as to “materiality” or “of another specific date, at and as of such date); (ii) the representations and warranties of the Company Material Adverse Effect” set forth thereincontained in Section 4.01, Section 4.02, Section 4.04(i), except Section 4.05 (other than 4.05(a)), Section 4.06(b), Section 4.27, Section 4.28 and Section 4.29 shall be true and correct in all material respects at and as does not constitute a of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (iii) the representations and warranties of the Company contained in Section 4.10(a)(ii) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of the Company contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Company Material Adverse Effect, except to shall be true and correct at and as of the extent date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties expressly relate to an earlier time are given as of another specific date, at and as of such date), except, in the case of this clause (in which caseiv) only, where the failure of such representations and warranties to be true and correct as of such times does has not constitute Company Material Adverse Effect). (d) The Company shall have performed or complied in all material respects with all agreements had and covenants required by this Agreement would not reasonably be expected to be performed or complied with by it at or prior to the Closing Date. (e) Prior to or at the Closing, Parent shall have received a certificate, validly executed by the Secretary of the Company, certifying (i) as to the adoption of resolutions of the board of directors of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation of such transaction or (iii) have, individually or in the aggregate, a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effect.; (gd) Prior since the date of this Agreement, there shall not have occurred any event, circumstance, development, change, occurrence or effect that has had or would reasonably be expected to have, individually or at in the Closingaggregate, a Company Material Adverse Effect; and (e) Parent shall have received a certificate signed by an executive officer of the Company shall have delivered in form and substance reasonably acceptable to Parent a certificate confirming the satisfaction of the Chief Executive Officer of the Companyconditions set forth in Section 9.02(a), dated as of the Closing Date, to the effect that the conditions specified in this Section are satisfied9.02(c) and Section 9.02(d).

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger shall be are subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by Parent) of the following further conditions: (a) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Closing Date of each of the following conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval shall have been obtained.Effective Time; (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made contained in this Agreement Section 4.5(a) shall have been be true and correct in all respects, subject only to de minimis exceptions, at and as of the date of this Agreement and at and as of the Closing Date as if made at and as of the Closing (without giving effect to any qualifications or limitations or, if such representations and warranties are given as to “materiality” or “of another specific date, at and as of such date); (ii) the representations and warranties of the Company Material Adverse Effect” set forth thereincontained in Section 4.1 (other than the third sentence thereof), except Section 4.2, Section 4.4(a), Sections 4.5(b) and 4.5(c), Section 4.6(b), Section 4.24, Section 4.25, Section 4.26 and Section 4.28 shall be true and correct in all material respects at and as does not constitute a of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (iii) the representations and warranties of the Company contained in Section 4.10(a)(ii) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of the Company contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Company Material Adverse Effect, except to shall be true and correct at and as of the extent date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties expressly relate to an earlier time are given as of another specific date, at and as of such date), except, in the case of this clause (in which caseiv) only, where the failure of such representations and warranties to be true and correct as of such times does has not constitute Company Material Adverse Effect). (d) The Company shall have performed or complied in all material respects with all agreements had and covenants required by this Agreement would not reasonably be expected to be performed or complied with by it at or prior to the Closing Date. (e) Prior to or at the Closing, Parent shall have received a certificate, validly executed by the Secretary of the Company, certifying (i) as to the adoption of resolutions of the board of directors of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation of such transaction or (iii) have, individually or in the aggregate, a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effect.; (gc) Prior since the date of this Agreement, there shall not have occurred any event, change, effect, development or occurrence that has had or would reasonably be expected to have, individually or at in the Closingaggregate, a Company Material Adverse Effect; (d) Parent shall have received a certificate from an executive officer of the Company confirming the satisfaction of the conditions set forth in Section 9.2(a), Section 9.2(b) and Section 9.2(c); (e) the Company Annual Meeting shall have delivered occurred; and (f) Parent shall have received an opinion of Tax Counsel, in form and substance reasonably acceptable satisfactory to Parent a certificate of the Chief Executive Officer of the CompanyParent, dated as of the Closing Date, to the effect that that, on the conditions specified basis of certain facts, representations and assumptions set forth in this such opinion, the Merger will be treated for federal income tax purposes as a “reorganization” within the meaning of Section are satisfied368(a) of the Code (and, in rendering such opinion, such counsel may require and rely upon representations contained in certificates of officers of Parent and the Company, reasonably satisfactory in form and substance to such counsel).

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger shall be are subject to the satisfaction at on or prior to the Closing Date of each of the following conditions, any of conditions (which may be waived, waived in writing, exclusively whole or in part by Parent and Merger Sub:Parent): (a) The Required Shareholder Approval shall have been obtained. (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made contained in this Agreement Section 4.04(b) (Change of Control Consents) and Section 4.10(b) (Absence of Certain Changes), shall have been be true and correct in all respects, in each case at and as of the date of this Agreement and as of the Closing Date as if made at and as of the Closing, (ii) the representations and warranties of the Company contained in Section 4.05(a) (Capitalization) shall be true and correct in all but de minimis respects, in each case at and as of the date of this Agreement and as of the Closing as if made at and as of the Closing (other than any such representations and warranties that by their terms address matters only at and as of another specified time, which shall be true and correct in all but de minimis respects only at and as of such time), (iii) the representations and warranties of the Company contained (A) in the first sentence ofSection 4.01 (Corporate Existence and Power), (B) in Section 4.02 (Corporate Authorization), Section 4.17(e) (Employee Benefits), Section 4.21 (Finders’ Fees), Section 4.22 (Opinion of Financial Advisor), Section 4.24 (Antitakeover Statutes), and Section 4.31(a) (Material Broker-Dealer) and (C) Section 4.32(a) (REIT Status for RCC) 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 Closing as if made at and as of the Closing (other than any such representations and warranties that by their terms address matters only at and as of another specified time, which shall be true and correct in all material respects only at and as of such time), and (iv) all other representations and warranties of the Company contained in this Agreement shall be true and correct (without giving effect to any qualifications or limitations as to “materiality,” or “Company Material Adverse EffectEffect or “all material respects” qualifications set forth therein), except in each case at and as does not constitute a Company Material Adverse Effect, except to of the extent date of this Agreement and as of the Closing as if made at and as of the Closing (other than any such representations and warranties expressly relate to an earlier time that by their terms address matters only as of another specified time, which shall be true and correct only at and as of such time), except, in the case of this clause (in which caseiv), where the failure of such representations and warranties to be so true and correct as of such times does has not constitute Company Material Adverse Effect). (d) The Company shall have performed or complied in all material respects with all agreements had and covenants required by this Agreement would not reasonably be expected to be performed or complied with by it at or prior to the Closing Date. (e) Prior to or at the Closing, Parent shall have received a certificate, validly executed by the Secretary of the Company, certifying (i) as to the adoption of resolutions of the board of directors of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation of such transaction or (iii) have, individually or in the aggregate, a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effect.; (gb) Prior to or at the Closing, the Company shall have delivered performed in form all material respects all of its covenants and substance reasonably acceptable obligations hereunder required to Parent be performed by it at or prior to the Closing; (c) Parexx xxx Mergxx Xxx shall have received a certificate signed by an executive officer of the Chief Executive Officer of the Company, dated as of the Closing Date, to the effect Company certifying that the conditions specified set forth in Section 9.02(a) and Section 9.02(b) have been satisfied; (d) the Company shall have received, and Parent shall have been furnished with copies of, the Resignations; (e) No Material Advisory Contract shall have terminated (except for the automatic termination of the Material Advisory Contract with Diversified Income Fund that will occur under the Investment Company Act as a result of the Closing) or, if applicable, not renewed, and each such Material Advisory Contract shall be in full force and effect in accordance with its terms; and (f) Diversified Income Fund shall have entered into an Acceptable Interim IAA and such Acceptable Interim IAA shall be in full force and effect; provided, that this Section are satisfiedcondition will be deemed to be satisfied in the event that Public Fund Shareholder Approval of a New IAA with Diversified Income Fund has been obtained and such New IAA is in full force and effect.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger shall be merger are subject to the satisfaction at (or prior to the Closing Date of each of the following conditions, any of which may be waived, in writing, exclusively waiver by Parent and Merger Sub) of the following conditions: (a) The Required Shareholder Approval shall have been obtained. (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has Other than the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made contained in Section 4.1 (Organization), Section 4.3 (Capitalization), Section 4.4(a) (Authorization), Section 4.10(b) (Absence of Certain Changes) and Section 4.17 (Brokers or Finders), the representations and warranties of the Company contained in this Agreement shall have been true and correct as of the date (disregarding for this purpose of this Agreement and as clause (i) any limitation or qualification of the Closing Date (without giving effect to any qualifications or limitations as to “materiality” or “Company Material Adverse Effect” set forth therein”) shall be true and correct in all respects as of the date hereof and as of the Closing, as though made on and as of such date and time (except to the extent expressly made as of an earlier date, in which case as of such earlier date), except as does not constitute a Company Material Adverse Effect, except to the extent such representations and warranties expressly relate to an earlier time (in which case, where the failure of such representations and warranties failures to be true and correct as of such times does correct, individually or in the aggregate, has not constitute had and would not reasonably be expected to have a Company Material Adverse Effect; and (ii) the representations and warranties set forth in Section 4.1 (Organization)., Section 4.3 (Capitalization), Section 4.4(a) (Authorization), Section 4.10(b) (Absence of Certain Changes), and Section 4.17 (Brokers or Finders) shall be true and correct in all respects (except, for de minimis inaccuracies) as of the date hereof and as of the Closing Date, as though made on and as of such date and time (except to the extent expressly made as of an earlier date, in which case as of such earlier date); (db) The the Company shall have performed or all obligations and complied with all covenants, in each case in all material respects with all agreements and covenants respects, required by this Agreement to be performed or complied with by it at or prior to the Closing Date.Closing; (ec) Prior to or at the Closing, Parent shall have received a certificate, validly executed by the Secretary of the Company, certifying (i) as to the adoption of resolutions of the board of directors of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation of such transaction or (iii) have, individually or in the aggregate, a no Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction by any Governmental Entity Effect shall have occurred following the date of competent jurisdiction shall be in effect.this Agreement; (gd) Prior to or at the Closing, the Company shall have delivered in form and substance reasonably acceptable to Parent a certificate of the Chief Executive Officer of the Companycertificate, dated as of the Closing Date, signed by an officer of the Company, certifying to the effect that satisfaction of the conditions specified in this Section are satisfied8.2(a), Section 8.2(b) and Section 8.2(c); and (e) Parent Required Approvals shall have been obtained.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger shall be are subject to the satisfaction at (or prior to the Closing Date of each waiver by Parent) of the following conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval shall have been obtained. (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made contained in this Agreement Sections 5.01 (other than the last sentence), 5.10(a)(ii) and 5.21 shall have been be true and correct at and as of the date hereof and the Closing Date, as if made at and as of this Agreement the Closing Date, (ii) the representations and warranties of the Company contained in Sections 5.01 (last sentence only), 5.02, 5.05(a) and 5.05(c) shall be true and correct, other than inaccuracies that are de minimis, at and as of the date hereof and the Closing Date (other than any such representation ‎and warranty that by its terms addresses matters only as of another specified time, in which case only as of such time), (ii) the representations and warranties of the Company contained in Section 5.05(b), 5.05(d), 5.05(e), 5.06(b) (other than the last sentence) and 5.06(c) shall be true and correct in all material respects at and as of the date hereof and the Closing Date, as if made at and as of the Closing Date (other than any such representation ‎and warranty that by its terms addresses matters only as of another specified time, in which case only as of such time), and (iii) the other representations and warranties of the Company contained in this Agreement shall be true and correct at and as of the date hereof and as of the Closing Date, as if made at and as of the Closing Date (other than any such representation ‎and warranty that by its terms addresses matters only as of another specified time, in which case only as of such time), in the case of this clause (iii) except for such failures to be true as have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material ‎Adverse Effect (for purposes of determining the satisfaction of the condition in this clause (iii), without giving effect regard to any qualifications or limitations exceptions contained in such representations and warranties as to “materiality” or “Company Material Adverse Effect” set forth therein”), except as does not constitute a Company Material Adverse Effect, except to the extent such representations and warranties expressly relate to an earlier time (in which case, where the failure of such representations and warranties to be true and correct as of such times does not constitute Company Material Adverse Effect).; (db) The the Company shall have performed or complied in all material respects with all agreements and covenants required by of its obligations under this Agreement to be performed or complied with by it at or prior to the Closing Date.Agreement; (ec) Prior to or at since the Closing, Parent shall have received a certificate, validly executed by the Secretary date of the Company, certifying (i) as to the adoption of resolutions of the board of directors of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken), and (ii) that the Required Shareholder Approval there has been obtained and which attaches a copy no Change (including the incurrence of the notice any liabilities of meetingany nature, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (fwhether or not accrued, contingent or otherwise) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation of such transaction or (iii) havethat, individually or in the aggregate, has had or is reasonably likely to have a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effect.; (gd) Prior to or at the Closing, the Company shall have delivered in form and substance reasonably acceptable deliver to Parent a certificate signed by an executive officer of the Chief Executive Officer of the Company, Company dated as of the Closing Date, to the effect Date certifying that the conditions specified set forth in this Section are 10.02(a) and (b) have been satisfied; and (e) holders of not more than 10% of the outstanding Shares shall have properly exercised, and not withdrawn, their dissenters’ rights under Section 262 of Delaware Law.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger shall be are subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by Parent) of the following further conditions: (a) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Closing Date of each of the following conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval shall have been obtained.Effective Time; (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) has the Parent Condition Regulatory Approvals shall have been made, obtained or received (or the waiting periods with respect thereto as set forth in Section ‎9.02(b) of the Parent Disclosure Schedule shall have expired or been terminated), as applicable, and shall be in full force and effect, in each case in this Section ‎9.02(b), without the imposition of a Burdensome Condition (including any Burdensome Condition that would come into effect at the Closing), and no Applicable Law or Order shall be in force and effect that would impose a Burdensome Condition (including any Burdensome Condition that would come in effect at the Closing) and no litigation or similar legal action by any Governmental Authority (in any jurisdiction in which Parent, the Company or any of prohibiting the Merger or making the Merger illegal.their respective Subsidiaries conducts material operations) seeking to impose a Burdensome Condition shall be pending; (c) The (i) the representations and warranties of the Company made contained in this Agreement Section ‎4.05(a) shall have been be true and correct correct, subject only to de minimis exceptions, at and as of the date of this Agreement and at and as of the Closing Date as if made at and as of the Closing (without giving effect to any qualifications or limitations or, if such representations and warranties are given as to “materiality” or “of another specific date, at and as of such date); (ii) the representations and warranties of the Company Material Adverse Effect” set forth thereincontained in Section ‎4.01, Section ‎4.02, Section ‎4.04(i), except Section ‎4.05 (other than 4.05(a)), Section ‎4.06(b), Section ‎4.27, Section ‎4.28 and Section ‎4.29 shall be true and correct in all material respects at and as does not constitute a of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (iii) the representations and warranties of the Company contained in Section ‎4.10(a)(ii) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of the Company contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Company Material Adverse Effect, except to shall be true and correct at and as of the extent date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties expressly relate to an earlier time are given as of another specific date, at and as of such date), except, in the case of this clause (in which caseiv) only, where the failure of such representations and warranties to be true and correct as of such times does has not constitute Company Material Adverse Effect). (d) The Company shall have performed or complied in all material respects with all agreements had and covenants required by this Agreement would not reasonably be expected to be performed or complied with by it at or prior to the Closing Date. (e) Prior to or at the Closing, Parent shall have received a certificate, validly executed by the Secretary of the Company, certifying (i) as to the adoption of resolutions of the board of directors of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation of such transaction or (iii) have, individually or in the aggregate, a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effect.; (gd) Prior since the date of this Agreement, there shall not have occurred any event, circumstance, development, change, occurrence or effect that has had or would reasonably be expected to have, individually or at in the Closingaggregate, a Company Material Adverse Effect; and (e) Parent shall have received a certificate signed by an executive officer of the Company shall have delivered in form and substance reasonably acceptable to Parent a certificate confirming the satisfaction of the Chief Executive Officer of the Companyconditions set forth in Section ‎9.02(a), dated as of the Closing Date, to the effect that the conditions specified in this Section are satisfied‎9.02(c) and Section ‎9.02(d).

Conditions to the Obligations of Parent and Merger Sub. The In addition to the conditions set forth in Section 7.1, the respective obligations of Parent and Merger Sub to consummate and effect the Merger shall be are subject to the satisfaction or (to the extent permitted by Law) waiver by Parent at or prior to the Merger Closing Date of each of the following further conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval shall have been obtained. (b) No Governmental Entity each of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made (i) set forth in this Agreement Section 4.2(a) and the first three sentences of Section 4.2(b) (Capitalization; Subsidiaries), Section 4.3 (Authority Relative to Agreement) and the first sentence of Section 4.9(a) (Absence of Certain Changes or Events), shall have been be true and correct in all respects at and as of the date of this Agreement and as of the Merger Closing Date (except, with respect to Section 4.2(a), to the extent that any inaccuracies would be de minimis, in the aggregate) and (ii) set forth in Article IV hereof (other than Section 4.2(a), the first three sentences of Section 4.2(b), Section 4.3, and the first sentence of Section 4.9(a)), without giving effect to any qualifications or limitations as to “materiality” materiality or “Company Material Adverse Effect” set forth Effect or other similar qualifications contained therein), except shall be true and correct at and as does not constitute a Company Material Adverse Effect, of the date of this Agreement and the Merger Closing Date (except to the extent such representations and warranties expressly relate to made as of an earlier time (date, in which case, where the failure case as of such representations and warranties date), except in the case of this clause (ii) for such failures to be true and correct as of such times does have not constitute Company had, individually or in the aggregate, a Material Adverse Effect).; (db) The the Company shall have performed or complied in all material respects with all agreements each agreement and covenants covenant required by this Agreement to be performed or complied with by it at on or prior to the Merger Closing Date.; (ec) Prior to or at since the Closing, Parent shall have received a certificate, validly executed by the Secretary date of the Company, certifying (i) as to the adoption of resolutions of the board of directors of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which there shall not have occurred any change, event, effect or written consent via which such action was taken), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation of such transaction or (iii) havecircumstance that, individually or in the aggregate, has had a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effect.; and (gd) Prior to or at the Closing, the Company shall have delivered in form and substance reasonably acceptable to Parent a certificate of certificate, dated the Chief Executive Officer Merger Closing Date and signed by an executive officer of the Company, dated as of the Closing Date, certifying to the effect that the conditions specified set forth in this Section are 7.2(a), Section 7.2(b) and Section 7.2(c) have been satisfied.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger shall be subject to the satisfaction at or prior to the Closing Date of each of the following conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval Each representation and warranty of the Company contained in Section 3.2(a), the first sentence of Section 3.2(b) and Section 3.2(c) shall have been obtainedbe true and correct in all respects as of the date of the Agreement and as of the Closing Date with the same force and effect as if made on and as of such date, except for representations and warranties that relate to a specific date or time (which need only be true and correct as of such date or time), except for any failures to be so true and correct that, individually or in the aggregate, are de minimis. (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made contained in this Agreement Section 3.11(b) shall have been be true and correct in all respects as of the date of this the Agreement and as of the Closing Date with the same force and effect as if made on and as of such date. (c) Each representation and warranty of the Company contained in Article III other than those referenced in Section 6.2(a) and Section 6.2(b) (without giving effect to any qualifications or limitations as references to “materiality” or “any Company Material Adverse Effect” set forth Effect or materiality qualifications therein)) shall be true and correct in all material respects as of the date of the Agreement and as of the Closing Date with the same force and effect as if made on and as of such date, except as does not constitute a Company Material Adverse Effect, except to the extent such for representations and warranties expressly that relate to an earlier a specific date or time (in which case, where the failure of such representations and warranties to need only be true and correct as of such times does not constitute Company Material Adverse Effectdate or time). (d) The Company shall have (i) performed or complied with each agreement and covenant to be performed or complied with by it in Section 5.1(a)(ii), except to the extent such failure is de minimis and (ii) performed or complied in all material respects with all agreements and covenants required by this Agreement any agreement or covenant to be performed or complied with by it under this Agreement (other than the covenants and agreements in Section 5.1(a)(ii)) at or prior to the Closing Date.. Table of Contents (e) Prior to or at the Closing, Parent Merger Sub shall have received a certificate, validly executed by the Secretary certificate of the Company, certifying (i) as to the adoption of resolutions of the board of directors of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved executed by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation of such transaction or (iii) have, individually or in the aggregate, a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effect. (g) Prior to or at the Closing, the Company shall have delivered in form and substance reasonably acceptable to Parent a certificate of the Chief Executive Officer executive officer of the Company, dated as of the Closing Date, to the effect that the conditions specified set forth in this Section are 6.2 have been satisfied.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger shall be are subject to the satisfaction at or prior to the Closing Date of each waiver (where permissible) in writing of the following additional conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval shall have been obtained. (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made contained in this Agreement that (i) are not made as of a specific date shall have been be true and correct as of the date of this Agreement and as of the Closing Date Closing, as though made on and as of the Closing, and (ii) are made as of a specific date shall be true and correct as of such date, in each case except where the failure of such representations or warranties to be true and correct (without giving effect to any qualifications or limitations limitation as to “materiality” or “Company Material Adverse Effect” set forth therein)in such representations and warranties) would not, except as does not constitute in the aggregate, reasonably be expected to have a Company Material Adverse Effect; provided that, except to notwithstanding the extent such foregoing, the representations and warranties expressly relate to an earlier time (of the Company in which caseSections 4.03, where the failure of such representations 4.04 and warranties to 4.22 shall be true and correct as of the date of this Agreement and shall be true and correct as of the Closing Date as if made on the Closing Date (in each case except to the extent they expressly relate to an earlier date, in which case as of such times does not constitute Company Material Adverse Effectearlier date). (db) The Company shall have performed or complied shall, in all material respects with respects, have performed all obligations and complied with, in all material respects, each of its agreements and covenants required by this Agreement to be performed or complied with by it at under this Agreement on or prior to the Effective Time; provided, however the Company shall have performed all obligations and complied with, in all respects, each of the Expense and Finance Covenants as of the Effective Time. (c) Parent shall have received a certificate signed on behalf of the Company by the Chief Executive Officer or Chief Financial Officer of the Company and certifying as to the satisfaction of the conditions specified in Sections 8.02(a) and 8.02(b). (d) On or prior to the Closing Date, (i) the BCRA Advisory Agreement shall have been terminated in full, effective no later than the Closing Date, (ii) all of the Minority Interests shall have been obtained by the Company or one of its wholly-owned Subsidiaries such that each of the Partially Owned Joint Ventures becomes a direct or indirect wholly-owned Subsidiary of the Company, effective as of the Effective Time pursuant to transfer documents that are in form and substance reasonably satisfactory to the Parent, (iii) the Company shall have delivered the notices to terminate each of the Management Agreement Documents as provided by Section 7.07 on or prior to the Closing Date, (iv) the Company shall have consummated the acquisition or restructuring of BCMR Seattle, a Limited Partnership, a Massachusetts limited partnership, effective as of the Closing Date, and (v) the Company shall have redeemed the interests of BCMR Special Inc. in BC-GFS LLC, effective as of the Closing Date, and Parent shall receive evidence reasonably satisfactory to it that all such actions have been taken on or prior to the Closing Date. (e) Prior to or at the Closing, Parent shall have received a certificate, validly executed by the Secretary Holders of not more than ten percent (10%) of the Company, certifying (i) as issued and outstanding Company Common Shares on an aggregate basis shall be entitled to the adoption of resolutions of rights provided under the board of directors of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder ApprovalDissenter’s Rights Provisions. (f) No litigation brought by Parent shall have received an opinion of Xxxxxxx Procter LLP, dated as of the Closing Date in the form attached hereto as Exhibit C, to the effect that for all taxable periods commencing with January 1, 2005 through and including the Closing Date, the Company has been organized and has operated in conformity with the requirements for qualification and taxation as a Governmental Entity of competent jurisdiction REIT under the Code (which opinion shall be pending that has a reasonable likelihood based upon customary representations made by the Company and shall be subject to customary assumptions, limitations and qualifications). (g) On the Closing Date, there shall not exist any event, change or occurrence arising after the date of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation of such transaction or (iii) havethat, individually or in the aggregate, has had a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction by any Governmental Entity . Parent shall have received a certificate signed on behalf of competent jurisdiction shall be in effect. (g) Prior to or at the Closing, the Company shall have delivered in form and substance reasonably acceptable to Parent a certificate of the Chief Executive Officer by an officer of the Company, dated as of the Closing Date, to the effect that the conditions specified in this Section are satisfiedforegoing effect.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger shall be are subject to the satisfaction of the following conditions: (a) the Company shall have performed in all material respects each of its obligations under this Agreement required to be performed by it at or prior to the Closing Date of each of the following conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval shall have been obtained.Effective Time; (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made set forth in Sections 4.01, 4.02, 4.04(a), 4.06 (other than the first four sentences of 4.06(b)), 4.23, 4.24, 4.25 and 4.26 of this Agreement shall be true and correct in all material respects as of the date of this Agreement and at and as of the Effective Time (except to the extent any such representation or warranty expressly relates to an earlier date or period, in which case as of such date or period); (ii) the representations and warranties of the Company set forth in Sections 4.05 and 4.06(b) (other than the last sentence thereof) of this Agreement shall be true and correct (except for de minimis inaccuracies) in all respects as of the date of this Agreement and at and as of the Effective Time (except to the extent any such representation or warranty expressly relates to an earlier date or period, in which case as of such date or period); (iii) the representation and warranty of the Company set forth in Section 4.10(b) of this Agreement shall be true and correct in all respects as of the date of this Agreement; and (iv) the representations and warranties of the Company set forth in this Agreement (other than those referred to in the preceding clauses (i)-(iii)) shall have been be true and correct as of the date of this Agreement and at and as of the Closing Date Effective Time (without giving effect to any qualifications or limitations as to “materiality” or “Company Material Adverse Effect” set forth therein), except as does not constitute a Company Material Adverse Effect, except to the extent any such representations and warranties representation or warranty expressly relate relates to an earlier time (date or period, in which casecase as of such date or period), except where the failure of such representations and warranties to be so true and correct as of such times does has not constitute Company Material Adverse Effect). (d) The Company shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by it at or prior to the Closing Date. (e) Prior to or at the Closing, Parent shall have received a certificate, validly executed by the Secretary of the Company, certifying (i) as to the adoption of resolutions of the board of directors of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken)had, and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall would not reasonably be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement expected to be rescinded following consummation of such transaction or (iii) have, individually or in the aggregate, a Company Material Adverse Effect, in the case of clauses (i), (ii) and no (iv) disregarding for this purpose all “Company Material Adverse Effect” and “materiality” qualifications contained in such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effect.representations and warranties; (gc) Prior there shall not have occurred since the date hereof a Company Material Adverse Effect; (d) the closing condition in Section 9.01(a) (if the Applicable Law or legal prohibition relates to or any of the matters referenced in Section 9.01(c)) shall have been satisfied without the imposition of a Burdensome Condition (including any Burdensome Condition that would come into effect at the Closing, ); (e) the closing condition in Section 9.01(c) shall have been satisfied without the imposition of a Burdensome Condition (including any Burdensome Condition that would come into effect at the Closing); and (f) the Company shall have delivered in form and substance reasonably acceptable to Parent a certificate signed by an executive officer of the Chief Executive Officer of the Company, Company dated as of the Closing Date, to the effect Date certifying that the conditions specified in paragraphs (a), (b) and (c) of this Section are 9.02 have been satisfied.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger shall be are subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by Parent) of the following further conditions: (a) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Closing Date of each of the following conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval shall have been obtained.Effective Time; (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which both (i) is in effect any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) has the effect Parent Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect, in each case in this ‎Section 9.02(b), without the imposition of prohibiting the Merger or making the Merger illegal.a Burdensome Condition; (c) The the Parties shall have received from the Federal Reserve Board a determination in form and substance reasonably satisfactory to Parent or, as determined by Parent in its sole discretion, other acceptable confirmation, that the consummation of the Merger will not result in Parent either (i) being deemed to be “controlled” by TD Bank as that term is interpreted by the Federal Reserve Board under the BHC Act or HOLA or (ii) being deemed to be in “control” of any of the TD Subsidiary Banks as that term is interpreted by the Federal Reserve Board under the BHC Act or HOLA (clauses (i) and (ii) together, the “Noncontrol Determinations”); (d) (i) the representations and warranties of the Company made contained in this Agreement ‎Section 4.05(a) shall have been be true and correct correct, subject only to de minimis exceptions, at and as of the date of this Agreement and at and as of the Closing Date as if made at and as of the Closing (without giving effect to any qualifications or limitations or, if such representations and warranties are given as to “materiality” or “of another specific date, at and as of such date); (ii) the representations and warranties of the Company Material Adverse Effect” set forth thereincontained in ‎Section 4.01 (other than the third sentence thereof), except ‎Section 4.02, ‎ ‎Section 4.04(i), ‎Section 4.05(c), ‎ ‎Section 4.06(b), ‎Section 4.28, ‎Section 4.29 and ‎Section 4.30 shall be true and correct in all material respects at and as does not constitute a of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (iii) the representations and warranties of the Company contained in ‎Section 4.10(a)(ii) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of the Company contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Company Material Adverse Effect, except to shall be true and correct at and as of the extent date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties expressly relate to an earlier time are given as of another specific date, at and as of such date), except, in the case of this clause (in which caseiv) only, where the failure of such representations and warranties to be true and correct as of such times does has not constitute Company Material Adverse Effect). (d) The Company shall have performed or complied in all material respects with all agreements had and covenants required by this Agreement would not reasonably be expected to be performed or complied with by it at or prior to the Closing Date. (e) Prior to or at the Closing, Parent shall have received a certificate, validly executed by the Secretary of the Company, certifying (i) as to the adoption of resolutions of the board of directors of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation of such transaction or (iii) have, individually or in the aggregate, a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effect.; (ge) Prior since the date of this Agreement, there shall not have occurred any event, change, effect, development or occurrence that has had or would reasonably be expected to have, individually or at in the Closingaggregate, a Company Material Adverse Effect; and (f) Parent shall have received a certificate from an executive officer of the Company shall have delivered in form and substance reasonably acceptable to Parent a certificate confirming the satisfaction of the Chief Executive Officer of the Companyconditions set forth in ‎Section 9.02(a), dated as of the Closing Date, to the effect that the conditions specified in this Section are satisfied‎Section 9.02(d) and ‎Section 9.02(e).

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger shall be are subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by Parent) of the following further conditions: (a) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Closing Date of each of the following conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval shall have been obtained.Effective Time; (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made contained in this Agreement ‎Section ‎4.5(a) shall have been be true and correct in all respects, subject only to de minimis exceptions, at and as of the date of this Agreement and at and as of the Closing Date as if made at and as of the Closing (without giving effect to any qualifications or limitations or, if such representations and warranties are given as to “materiality” or “of another specific date, at and as of such date); (ii) the representations and warranties of the Company Material Adverse Effect” set forth thereincontained in ‎Section ‎4.1 (other than the third sentence thereof), except ‎Section ‎4.2, ‎Section ‎4.4(a), Sections ‎4.5(b) and ‎4.5(c), ‎‎Section ‎4.6(b), ‎Section ‎4.24, ‎Section ‎4.25, Section ‎4.26 and Section ‎4.28 shall be true and correct in all material respects at and as does not constitute a of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (iii) the representations and warranties of the Company contained in ‎Section ‎4.10(a)(ii) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of the Company contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Company Material Adverse Effect, except to shall be true and correct at and as of the extent date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties expressly relate to an earlier time (are given as of another specific date, at and as of such date), except, in which casethe case of this clause ‎(iv) only, where the failure of such representations and warranties to be true and correct as of such times does has not constitute Company Material Adverse Effect). (d) The Company shall have performed or complied in all material respects with all agreements had and covenants required by this Agreement would not reasonably be expected to be performed or complied with by it at or prior to the Closing Date. (e) Prior to or at the Closing, Parent shall have received a certificate, validly executed by the Secretary of the Company, certifying (i) as to the adoption of resolutions of the board of directors of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation of such transaction or (iii) have, individually or in the aggregate, a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effect.; (gc) Prior since the date of this Agreement, there shall not have occurred any event, change, effect, development or occurrence that has had or would reasonably be expected to have, individually or at in the Closingaggregate, a Company Material Adverse Effect; (d) Parent shall have received a certificate from an executive officer of the Company confirming the satisfaction of the conditions set forth in ‎Section ‎9.2(a), ‎Section ‎9.2(b) and ‎Section ‎9.2(c); (e) the Company Annual Meeting shall have delivered occurred; and (f) Parent shall have received an opinion of Tax Counsel, in form and substance reasonably acceptable satisfactory to Parent a certificate of the Chief Executive Officer of the CompanyParent, dated as of the Closing Date, to the effect that that, on the conditions specified basis of certain facts, representations and assumptions set forth in this such opinion, the Merger will be treated for federal income tax purposes as a “reorganization” within the meaning of Section are satisfied368(a) of the Code (and, in rendering such opinion, such counsel may require and rely upon representations contained in certificates of officers of Parent and the Company, reasonably satisfactory in form and substance to such counsel).

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger shall be are subject to the satisfaction at or prior to the Closing Date of each of the following further conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval shall have been obtained. (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company contained in Section 3.06 of this Agreement shall be true and correct in all material respects, as of the Closing Date, as if made at and as of such 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, (ii) the Fundamental Warranties of the Company contained in this Agreement (other than in Section 3.06), disregarding all qualifications contained therein relating to materiality or Material Adverse Effect, shall have been be true and correct in all material respects as of the Closing Date, as if made at and as of such 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 and (iii) the representations and warranties of the Company contained in this Agreement other than the Fundamental Warranties of the Company, disregarding all qualifications contained therein relating to materiality or Material Adverse Effect, shall be true and correct as of the date of this Agreement Closing Date, as if made at and as of the Closing Date (without giving effect to any qualifications or limitations as to “materiality” or “Company Material Adverse Effect” set forth therein)such date, except as does not constitute a Company Material Adverse Effect, except with respect to the extent such representations and warranties expressly relate which speak as to an earlier time (in date, which case, where the failure of such representations and warranties to shall be true and correct at and as of such times does not constitute Company Material Adverse Effect). date, except, in each case under this clause (d) The Company shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by it at or prior to the Closing Date. (e) Prior to or at the Closing, Parent shall have received a certificate, validly executed by the Secretary of the Company, certifying (i) as to the adoption of resolutions of the board of directors of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was takeniii), and (ii) for any inaccuracy or omission that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall would not reasonably be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation of such transaction or (iii) haveexpected to, individually or in the aggregate, have a Company Material Adverse Effect; (b) the covenants of the Company to be performed prior to the Closing shall have been performed in all material respects; (c) a Material Adverse Effect shall not have occurred and be continuing; (d) the LFA Approvals with respect to Franchises (other than the Specified Franchises) that represent, and no such judgmentin aggregate, ordernot less than 95% of Unique Subscribers in all of the Systems other than the former Cable One Anniston, decreeAL system (i) shall have been received, stipulation or injunction by any Governmental Entity of competent jurisdiction (ii) shall be deemed to have been received in effect.accordance with Section 617 of the Communications Act or (iii) shall not be required by Applicable Law (including those areas where the business of the Company and its Subsidiaries is lawfully operated without a Franchise) or under any applicable Franchise. Solely for purposes of determining the applicable percentage of Unique Subscribers under this Section 9.02(d), the parties shall use the number of Unique Subscribers in the applicable Systems as of the last day of the month in which this Agreement is executed and delivered, calculated on a basis consistent with Section 3.26; (e) Parent shall have received from each Equityholder a properly completed Internal Revenue Service Form W-9 certifying that such Equityholder is a “U.S. person” for purposes of satisfying the requirements of Section 1445 and 1446(f) of the Code; (f) Parent shall have received from each Equityholder that holds Company Class A Units (other than the Charity) a duly completed and executed Written Consent (the “Required Member Consents”); and (g) Prior to or at the Closing, Parent shall have received a certificate signed by an executive officer of the Company shall have delivered in form and substance reasonably acceptable to Parent a certificate of the Chief Executive Officer of the Company, dated as of the Closing Date, to the effect that of the conditions specified in this Section are satisfiedforegoing clauses (a), (b) and (c).

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger shall be are subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by Parent) of the following further conditions: (a) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Closing Date of each of the following conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval shall have been obtained.Effective Time; (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which both (i) is in effect any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) has the effect Parent Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect, in each case in this ‎Section 9.02(b), without the imposition of prohibiting the Merger or making the Merger illegal.a Burdensome Condition; (c) The the Parties shall have received from the Federal Reserve Board a determination in form and substance reasonably satisfactory to Parent or, as determined by Parent in its sole discretion, other acceptable confirmation, that the consummation of the Merger will not result in Parent either (i) being deemed to be “controlled” by TD Bank as that term is interpreted by the Federal Reserve Board under the BHC Act or HOLA or (ii) being deemed to be in “control” of any of the TD Subsidiary Banks as that term is interpreted by the Federal Reserve Board under the BHC Act or HOLA (clauses (i) and (ii) together, the “Noncontrol Determinations”); (d) (i) the representations and warranties of the Company made contained in this Agreement ‎Section 4.05(a) shall have been be true and correct correct, subject only to de minimis exceptions, at and as of the date of this Agreement and at and as of the Closing Date as if made at and as of the Closing (without giving effect to any qualifications or limitations or, if such representations and warranties are given as to “materiality” or “of another specific date, at and as of such date); (ii) the representations and warranties of the Company Material Adverse Effect” set forth thereincontained in ‎Section 4.01 (other than the third sentence thereof), except ‎Section 4.02, ‎Section 4.04(i), ‎Section 4.05(c), ‎Section 4.06(b), ‎Section 4.28, ‎Section 4.29 and ‎Section 4.30 shall be true and correct in all material respects at and as does not constitute a of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (iii) the representations and warranties of the Company contained in ‎Section 4.10(a)(ii) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of the Company contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Company Material Adverse Effect, except to shall be true and correct at and as of the extent date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties expressly relate to an earlier time are given as of another specific date, at and as of such date), except, in the case of this clause (in which caseiv) only, where the failure of such representations and warranties to be true and correct as of such times does has not constitute Company Material Adverse Effect). (d) The Company shall have performed or complied in all material respects with all agreements had and covenants required by this Agreement would not reasonably be expected to be performed or complied with by it at or prior to the Closing Date. (e) Prior to or at the Closing, Parent shall have received a certificate, validly executed by the Secretary of the Company, certifying (i) as to the adoption of resolutions of the board of directors of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation of such transaction or (iii) have, individually or in the aggregate, a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effect.; (ge) Prior since the date of this Agreement, there shall not have occurred any event, change, effect, development or occurrence that has had or would reasonably be expected to have, individually or at in the Closingaggregate, a Company Material Adverse Effect; and (f) Parent shall have received a certificate from an executive officer of the Company shall have delivered in form and substance reasonably acceptable to Parent a certificate confirming the satisfaction of the Chief Executive Officer of the Companyconditions set forth in ‎Section 9.02(a), dated as of the Closing Date, to the effect that the conditions specified in this Section are satisfied‎Section 9.02(d) and ‎Section 9.02(e).

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger shall be are subject to the satisfaction at (or prior to the Closing Date of each waiver by Pxxxxx and Merger Sub) of the following conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval shall have been obtained. (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has other than the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made contained in Section 4.1 (Organization), Section 4.3(a) (Capitalization), Section 4.4(a) (Authorization), Section 4.10 (Absence of Certain Changes), and Section 4.17 (Brokers or Finders), the representations and warranties of the Company contained in this Agreement shall have been true and correct as of Agreement, for the date purpose of this Agreement and as of the Closing Date clause (i) without giving effect to any qualifications or limitations limitation as to “materiality” or “Company Material Adverse Effect” or any similar standard or qualification set forth therein, shall be true and correct in all respects as of the date hereof and as of the Closing Date, as though made on and as of such date and time (except to the extent expressly made as of an earlier date, in which case as of such earlier date), except as does not constitute a Company Material Adverse Effect, except to the extent such representations and warranties expressly relate to an earlier time (in which case, where the failure of such representations and warranties failures to be true and correct as of such times does correct, individually or in the aggregate, has not constitute had and would not reasonably be expected to have a Company Material Adverse Effect; and (ii) the representations and warranties set forth in Section 4.1 (Organization)., Section 4.3(a) (Capitalization), Section 4.4(a) (Authorization), Section 4.10 (Absence of Certain Changes), and Section 4.17 (Brokers or Finders), shall be true and correct in all respects (except, for de minimis inaccuracies) as of the date hereof and as of the Closing Date, as though made on and as of such date and time (except to the extent expressly made as of an earlier date, in which case as of such earlier date); (db) The the Company shall have performed or all obligations and complied with all covenants, in each case in all material respects with all agreements and covenants respects, required by this Agreement to be performed or complied with by it at or prior to the Closing Date.Closing; (ec) Prior to or at the Closing, Parent shall have received a certificate, validly executed by the Secretary of the Company, certifying (i) as to the adoption of resolutions of the board of directors of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation of such transaction or (iii) have, individually or in the aggregate, a no Company Material Adverse Effect, Effect shall have occurred and no such judgment, order, decree, stipulation or injunction by any Governmental Entity be continuing following the date of competent jurisdiction shall be in effect.this Agreement; and (gd) Prior to or at the Closing, the Company shall have delivered in form and substance reasonably acceptable to Parent a certificate of the Chief Executive Officer of the Companycertificate, dated as of the Closing Date, signed by an officer of the Company, certifying to the effect that satisfaction of the conditions specified in this Section are satisfied8.2(a), Section 8.2(b), and Section 8.2(c).

Conditions to the Obligations of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub to consummate and effect the Merger shall be is subject to the satisfaction at or, to the extent permitted by applicable Law, waiver, on or prior to the Closing Date of each Closing, of the following conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval shall have been obtained. (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made set forth in this Agreement (i) Section 3.5(a)(ii) shall have been be true and correct as of the date of this Agreement and as of the Closing Date as though made as of the Closing, (ii) Section 3.3 (other than Section 3.3(e)) shall be true and correct as of the date of this Agreement and as of the Closing as though made as of the Closing (except that representations and warranties that expressly speak specifically as of the date of this Agreement or another date shall be true and correct as of such date), except for de minimis inaccuracies, (iii) Section 3.1, Section 3.2, Section 3.3(e), Section 3.16, Section 3.17, Section 3.18(b), Section 3.19, Section 3.20, Section 3.21(b) and Section 3.22 that are (A) qualified as to materiality or Company Material Adverse Effect and other qualifications based upon the concept of materiality or similar phrases contained therein shall be true and correct in all respects and (B) not qualified as to materiality or Company Material Adverse Effect and other qualifications based upon the concept of materiality or similar phrases contained therein shall be true and correct in all material respects, in each case ((A) and (B)) as of the date of this Agreement and as of the Closing as though made as of the Closing (except that representations and warranties that expressly speak specifically as of the date of this Agreement or another date shall be so true and correct as of such date), and (iv) the other provisions of Article 3 shall be true and correct (without giving effect to any qualifications or limitations qualification as to “materiality” materiality or “Company Material Adverse Effect” set forth Effect contained therein) as of the date of this Agreement and as of the Closing as though made as of the Closing (except that representations and warranties that expressly speak specifically as of the date of this Agreement or another date shall be true and correct as of such date), except as does not constitute a Company Material Adverse Effect, except to the extent such representations and warranties expressly relate to an earlier time (in which case, where the failure any failures of any such representations and warranties to be true and correct as of such times does has not constitute had or would not reasonably be expected to have, individually or in the aggregate with all other Effects, a Company Material Adverse Effect).; (db) The the Company shall have performed or and complied in all material respects with all agreements obligations and covenants required by this Agreement to be performed or complied with by it at or prior to the Closing Date.under this Agreement; (ec) Prior to or at since the Closing, Parent shall have received a certificate, validly executed by the Secretary date of the Company, certifying (i) as to the adoption of resolutions of the board of directors of the Company whereby this Agreement, the Merger there shall not have occurred and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall not be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation of such transaction or (iii) havecontinuing any Effect that, individually or in the aggregate, has had or would reasonably be expected to have, a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effect.; and (gd) Prior to or Parent shall have received at the Closing, Closing a certificate signed on behalf of the Company shall have delivered in form and substance reasonably acceptable to Parent a certificate of by the Chief Executive Officer or the Chief Financial Officer of the Company, dated as of the Closing Date, to the effect Company certifying that the conditions specified set forth in this Section are 6.2(a), Section 6.2(b) and Section 6.2(c) have been satisfied.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger shall be are subject to the satisfaction at or prior to the Closing Date of each waiver of the following additional conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval shall have been obtained. (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made in this Agreement shall have been true and correct as of the date of this Agreement and as of the Closing Date (without giving effect to any qualifications or limitations as to “materiality” or “Company Material Adverse Effect” set forth therein), except as does not constitute a Company Material Adverse Effect, except to the extent such representations and warranties expressly relate to an earlier time (in which case, where the failure of such representations and warranties to be true and correct as of such times does not constitute Company Material Adverse Effect). (d) The Company shall have performed or complied in all material respects with all agreements and covenants of its obligations hereunder required by this Agreement to be performed or complied with by it at or prior to the Closing Date.Effective Time; (eb) Prior the representations and warranties of the Company contained in ‎Section 4.01, ‎‎Section 4.02‎, ‎Section 4.05(b), ‎Section 4.05(c) and ‎Section 4.22 (disregarding all materiality, Company Material Adverse Effect or similar qualifications contained therein) shall be true in all material respects at and as of the Effective Time as if made at and as of such time (other than representations and warranties that by their terms address matters only as of another specified time, which shall be so true only as of such time), (c) the representations and warranties of the Company contained in ‎‎Section 4.05(a) (disregarding all materiality, Company Material Adverse Effect or similar qualifications contained therein) shall be true and correct at and as of the Effective Time as if made at and as of such time (other than representations and warranties that by their terms address matters only as of another specified time, which shall be so true only as of such time), except where failure to be so true and correct would not reasonably be expected to result in additional cost, expense or at the Closing, Parent shall have received a certificate, validly executed by the Secretary of liability to the Company, certifying Parent and their Affiliates, individually or in the aggregate, that is more than $2,500,000; (id) as to the adoption of resolutions of the board of directors Other than representations and warranties of the Company whereby this Agreementlisted in ‎Section 9.02(b) and ‎Section 9.02(c), the Merger representations and the transactions contemplated hereunder were approved by the board of directors (attaching a copy warranties of the meeting minutes Company contained in this Agreement (disregarding all materiality, Company Material Adverse Effect or similar qualifications contained therein) shall be true in all respects at and as of the Effective Time as if made at and as of such time (other than representations and warranties that by their terms address matters only as of another specified time, which or written consent via which shall be so true only as of such action was takentime), with only such exceptions as have not had and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall would not reasonably be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement expected to be rescinded following consummation of such transaction or (iii) have, individually or in the aggregate, a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effect.; (ge) Prior Since the date hereof, there shall not have occurred any event, occurrence, fact, condition, change, development or effect that has had or would reasonably be expected to have, individually or at in the Closingaggregate, a Company Material Adverse Effect; and (f) Parent shall have received a certificate signed by an executive officer of the Company shall have delivered in form and substance reasonably acceptable to Parent a certificate of the Chief Executive Officer of the Company, dated as of the Closing Date, to the effect that the conditions specified set forth in this Section are the preceding clauses ‎(a), ‎(b), ‎(e), (d), and (e) have been satisfied.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger shall be are subject to the satisfaction at or prior to the Closing Date of each of the following additional conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval shall have been obtained. (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made in this Agreement shall have been true and correct as of the date of this Agreement and as of the Closing Date (without giving effect to any qualifications or limitations as to “materiality” or “Company Material Adverse Effect” set forth therein), except as does not constitute a Company Material Adverse Effect, except to the extent such representations and warranties expressly relate to an earlier time (in which case, where the failure of such representations and warranties to be true and correct as of such times does not constitute Company Material Adverse Effect). (d) The Company shall have performed or and complied with in all material respects with all of the covenants, obligations and agreements and covenants hereunder required by this Agreement to be performed or complied with by it at or prior to the Closing Date. (e) Prior to or at the Closing, Parent shall have received a certificate, validly executed by the Secretary of the Company, certifying (i) as to the adoption of resolutions of the board of directors of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated representations and warranties of the Company contained in Section 4.01(a) (Corporate Existence and Power), Section 4.02 (Corporate Authorization), Section 4.04(a) (Non-Contravention), Section 4.05(a) and (b) (Capitalization), Section 4.23 (Finders’ Fees), Section 4.24 (Opinion of Financial Advisor), Section 4.25 (Antitakeover Statutes; Rights Agreement), and Section 4.26 (Masonite Agreement) that (A) are not qualified by this Agreement to Company Material Adverse Effect or other materiality qualifiers shall be rescinded following consummation true and correct in all respects (but for de minimis inaccuracies) as of the date hereof and as of the Closing Date as if made at and as of the Closing Date (in each case, other than representations and warranties that by their terms address matters only as of another specified time, which shall be so true only as of such transaction time) and (B) are qualified by Company Material Adverse Effect or other materiality qualifiers shall be true and correct in all respects as of the date hereof and as of the Closing Date as if made at and as of the Closing Date (in each case, other than representations and warranties that by their terms address matters only as of another specified time, which shall be so true only as of such time) without disregarding such Company Material Adverse Effect or other materiality qualifiers qualifications, (iii) the representations and warranties of the Company contained in Section 4.10(b) (Absence of Certain Changes) shall be true and correct in all respects as of the date hereof and as of the Closing Date as if made at and as of the Closing Date, (iv) the other representations and warranties of the Company contained in this Agreement (disregarding all materiality and Company Material Adverse Effect qualifications contained therein) shall be true and correct in all respects as of the date hereof and as of the Closing Date as if made at and as of the Closing Date (other than representations and warranties that by their terms address matters only as of another specified time, which shall be so true only as of such time), with only such exceptions in the case of this clause (iv) as have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, Effect and no such judgment, order, decree, stipulation or injunction (v) Parent shall have received a certificate signed by any Governmental Entity an executive officer of competent jurisdiction shall be in effect. (g) Prior to or at the Closing, the Company shall have delivered in form and substance reasonably acceptable to Parent a certificate of the Chief Executive Officer of the Company, dated as of the Closing Date, to the effect that the conditions specified set forth in this foregoing clauses (i) – (iv) and Section are 9.02(b) have been satisfied. (b) Since the date of this Agreement, no Company Material Adverse Effect shall have occurred and be continuing.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger shall be are subject to the satisfaction at on or prior to the Closing Date of each of the following conditions, any of conditions (which may be waived, waived in writing, exclusively whole or in part by Parent and Merger Sub:Parent): (a) The Required Shareholder Approval shall have been obtained. (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made contained in this Agreement Section 4.04(b) (Change of Control Consents) and Section 4.10(b) (Absence of Certain Changes), shall have been be true and correct in all respects, in each case at and as of the date of this Agreement and as of the Closing Date as if made at and as of the Closing, (ii) the representations and warranties of the Company contained in Section 4.05(a) (Capitalization) shall be true and correct in all but de minimis respects, in each case at and as of the date of this Agreement and as of the Closing as if made at and as of the Closing (other than any such representations and warranties that by their terms address matters only at and as of another specified time, which shall be true and correct in all but de minimis respects only at and as of such time), (iii) the representations and warranties of the Company contained (A) in the first sentence of Section 4.01 (Corporate Existence and Power), (B) in Section 4.02 (Corporate Authorization), Section 4.17(e) (Employee Benefits), Section 4.21 (Finders’ Fees), Section 4.22 (Opinion of Financial Advisor), Section 4.24 (Antitakeover Statutes), and Section 4.31(a) (Material Broker-Dealer) and (C) Section 4.32(a) (REIT Status for RCC) 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 Closing as if made at and as of the Closing (other than any such representations and warranties that by their terms address matters only at and as of another specified time, which shall be true and correct in all material respects only at and as of such time), and (iv) all other representations and warranties of the Company contained in this Agreement shall be true and correct (without giving effect to any qualifications or limitations as to “materiality,” or “Company Material Adverse EffectEffect or “all material respects” qualifications set forth therein), except in each case at and as does not constitute a Company Material Adverse Effect, except to of the extent date of this Agreement and as of the Closing as if made at and as of the Closing (other than any such representations and warranties expressly relate to an earlier time that by their terms address matters only as of another specified time, which shall be true and correct only at and as of such time), except, in the case of this clause (in which caseiv), where the failure of such representations and warranties to be so true and correct as of such times does has not constitute Company Material Adverse Effect). (d) The Company shall have performed or complied in all material respects with all agreements had and covenants required by this Agreement would not reasonably be expected to be performed or complied with by it at or prior to the Closing Date. (e) Prior to or at the Closing, Parent shall have received a certificate, validly executed by the Secretary of the Company, certifying (i) as to the adoption of resolutions of the board of directors of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation of such transaction or (iii) have, individually or in the aggregate, a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effect.; (gb) Prior to or at the Closing, the Company shall have delivered performed in form all material respects all of its covenants and substance reasonably acceptable obligations hereunder required to be performed by it at or prior to the Closing; (c) Parent and Merger Sub shall have received a certificate signed by an executive officer of the Chief Executive Officer of the Company, dated as of the Closing Date, to the effect Company certifying that the conditions specified set forth in Section 9.02(a) and Section 9.02(b) have been satisfied; (d) the Company shall have received, and Parent shall have been furnished with copies of, the Resignations; (e) No Material Advisory Contract shall have terminated (except for the automatic termination of the Material Advisory Contract with Diversified Income Fund that will occur under the Investment Company Act as a result of the Closing) or, if applicable, not renewed, and each such Material Advisory Contract shall be in full force and effect in accordance with its terms; and (f) Diversified Income Fund shall have entered into an Acceptable Interim IAA and such Acceptable Interim IAA shall be in full force and effect; provided, that this Section are satisfiedcondition will be deemed to be satisfied in the event that Public Fund Shareholder Approval of a New IAA with Diversified Income Fund has been obtained and such New IAA is in full force and effect.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger shall be are subject to the satisfaction at (or prior to the Closing Date of each of the following conditions, any of which may be waived, in writing, exclusively waiver by Parent and Merger Sub) of the following further conditions: (a) The Required Shareholder Approval shall have been obtained. (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made contained in this Agreement (i) that are not qualified by Company Material Adverse Effect shall have been be true and correct as of the date of this Agreement Effective Time as though made on and as of the Closing Date Effective Time (without giving effect to any qualifications or limitations as to “materiality” or “Company Material Adverse Effect” set forth therein), except as does not constitute a Company Material Adverse Effect, except to the extent such representations and warranties expressly relate to made as of an earlier time (date, in which case, case as of such earlier date) except where the failure of such representations and warranties to be so true and correct would not, individually or in the aggregate, have a Company Material Adverse Effect and (ii) that are qualified by Company Material Adverse Effect shall be true and correct as of the Effective Time as though made on and as of the Effective Time (except to the extent expressly made as of an earlier date, in which case as of such times does not constitute Company Material Adverse Effectearlier date).; provided, however, that (A) the representations and warranties set forth in Section 4.2(a) and Section 4.8(a)(iii) shall be true and correct in all respects (except for immaterial deviations) as of the date hereof and as of the Closing Date as though made on and as of the Closing Date; and (B) the representations and warranties set forth in Section 4.5, shall be true and correct in all material respects, in each case, as of the date hereof and as of the Closing Date as though made on and as of the Closing Date; (db) The the Company shall have performed or complied in all material respects with all agreements and covenants its obligations hereunder required by this Agreement to be performed or complied with by it at or prior to the Closing Date.Closing; (ec) Prior to or at the Closing, Parent shall have received a certificate, validly executed certificate signed by the Secretary of the Company, certifying (i) as to the adoption of resolutions of the board of directors of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation of such transaction or (iii) have, individually or in the aggregate, a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effect. (g) Prior to or at the Closing, the Company shall have delivered in form and substance reasonably acceptable to Parent a certificate of the Chief Executive Officer chief financial officer of the Company, dated as of the Closing Date, to the effect that that, to the knowledge of such officer, the conditions specified set forth in Section 7.2(a) and Section 7.2(b) have been satisfied; (d) the Debt Financing shall be available for borrowing on the terms and conditions set forth in the Debt Commitment Letter or on such other terms and conditions as are reasonably satisfactory to Parent and Merger Sub; (e) the aggregate number of shares of Company Common Stock that are issued and outstanding immediately prior to the Effective Time and which are held by holders who have exercised dissenters’ rights or provided notice of intent to exercise dissenters’ rights in accordance with the provisions of Section 1300 et.seq. of the CCC shall constitute less than 10% of the shares of Common Stock outstanding as of the date of this Agreement as set forth in Section are satisfied4.2(a); (f) since the date of this Agreement, there has not been any Company Material Adverse Effect on the Company; (g) the Company shall have disposed of the securities set forth on Exhibit D to this Agreement; (h) the securities set forth on Exhibit E to this Agreement shall not be disposed prior to the Effective Time and shall remain as assets of the Company after the Merger; and (i) the Company shall have an amount of cash on hand of $25,000,000, or such other amount as Parent and the Company shall mutually agree upon.

Conditions to the Obligations of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub to consummate and effect the Merger shall be is subject to the satisfaction satisfaction, or waiver by Parent, at or prior to the Closing Date of each Closing, of the following conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval shall have been obtained. (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company set forth in the first sentence of Section 4.01, Section 4.02(a), and Section 4.24 shall be true and correct in all material respects as of the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct in all material respects only as of such earlier date), (ii) the representations and warranties of the Company set forth in Section 4.09(b)(ii) shall be true and correct in all respects as of the date hereof and as of the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct in all respects only as of such earlier date), (iii) the representations and warranties of the Company set forth in Section 4.05(a) and the first sentence of Section 4.05(d) shall be true and correct in all respects except for de minimis inaccuracies relative to the total fully-diluted equity capitalization of the Company as of the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct in all respects except for such de minimis inaccuracies only as of such earlier date) and (iv) the other representations and warranties of the Company set forth in Article 4 of this Agreement shall have been be true and correct as of the date of this Agreement and Closing Date as of if made on the Closing Date (without giving effect to any qualifications or limitations as to “materiality” or “Company Material Adverse Effect” set forth therein), except as does not constitute a Company Material Adverse Effect, except to the extent that any such representations representation and warranties warranty expressly relate to speaks as of an earlier time (date, in which casecase such representation and warranty shall be true and correct only as of such earlier date), except where the failure of such representations and warranties to be so true and correct (disregarding all qualifications or limitations as of such times does not constitute to “materiality,” “Company Material Adverse Effect).” or words of similar import) would not, individually or in the aggregate, have a Company Material Adverse Effect; (db) The the Company shall have performed or complied in all material respects with all agreements and covenants obligations required by this Agreement to be performed or complied with by it under this Agreement at or prior to the Closing Date.(provided that, for purposes of this Section 7.02(b), the Company shall be deemed to have performed and complied in all material respects with its obligations under Section 6.17 unless there has been a Willful and Material Breach of such obligations by the Company and such Willful and Material Breach is the proximate cause of Parent’s failure to obtain both the Debt Financing and the Preferred Equity Financing); (ec) Prior to or at the Closing, Parent shall have received at the Closing a certificate, validly executed by the Secretary of the Company, certifying (i) as to the adoption of resolutions of the board of directors certificate signed on behalf of the Company whereby by the Chief Executive Officer or the Chief Financial Officer of the Company certifying that the conditions set forth in Section 7.02(a), Section 7.02(b) and Section 7.02(d) have been satisfied; and (d) since the date of this Agreement, the Merger there shall not have occurred and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation of such transaction or (iii) have, individually or in the aggregate, a continuing any Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effect. (g) Prior to or at the Closing, the Company shall have delivered in form and substance reasonably acceptable to Parent a certificate of the Chief Executive Officer of the Company, dated as of the Closing Date, to the effect that the conditions specified in this Section are satisfied.

Conditions to the Obligations of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub to consummate and effect the Merger shall be is subject to the satisfaction satisfaction, at or prior to the Closing Date of each Closing, of the following conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval shall have been obtained. (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made set forth in this Agreement shall have been be true and correct as of on the date of this Agreement hereof and on the Closing Date as of if made on the Closing Date (without giving effect to any qualifications or limitations as to “materiality” or “Company Material Adverse Effect” set forth therein), except as does not constitute a Company Material Adverse Effect, except to the extent that any such representations representation and warranties warranty expressly relate to speaks as of an earlier time (date, in which casecase such representation and warranty shall be true and correct only as of such earlier date), except where the failure of such representations and warranties to be so true and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) would not, individually or in the aggregate, have a Company Material Adverse Effect, provided that, notwithstanding the foregoing, (i) the representations and warranties set forth in Section 4.01 (Corporate Existence and Power), Section 4.02 (Corporate Authorization), Section 4.23 (Brokers’ Fees), and Section 4.24 (Opinion of Financial Advisor) shall be true and correct in all material respects as of the Closing Date as if made on and as of such date (other than representations and warranties that address matters only as of an earlier date, which shall be true and correct in all material respects as of such earlier date) and (ii) the representations and warranties set forth in Section 4.05 (Capitalization) shall be true and correct in all respects as of the Closing Date as if made on and as of such date (other than representations and warranties that address matters only as of an earlier date, which shall be true and correct as of such times does earlier date), except for any inaccuracies that would not, individually or in the aggregate, increase the Aggregate Merger Consideration payable in the Merger by more than $100,000 (disregarding any failures to be true and correct resulting or arising from any actions not constitute Company Material Adverse Effectprohibited by Section 6.01 or otherwise consented to by Parent or Merger Sub).; (db) The the Company shall have performed or complied in all material respects with all agreements and covenants obligations required by this Agreement to be performed or complied with by it under this Agreement at or prior to the Closing Date.; (c) Parent shall have received at the Closing a certificate signed on behalf of the Company by the Chief Executive Officer or the Chief Financial Officer of the Company certifying that the conditions set forth in Section 7.02(a) and Section 7.02(b) and been satisfied; (d) since the date of the Agreement, there shall not have occurred and be continuing any Company Material Adverse Effect; and (e) Prior to or at the Closing, Parent number of shares of Company Common Stock that are Dissenting Shares shall have received a certificate, validly executed by the Secretary be less than ten percent (10%) of the Company, certifying (i) as number of shares of Company Common Stock outstanding immediately prior to the adoption of resolutions of the board of directors of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder ApprovalEffective Time. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation of such transaction or (iii) have, individually or in the aggregate, a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effect. (g) Prior to or at the Closing, the Company shall have delivered in form and substance reasonably acceptable to Parent a certificate of the Chief Executive Officer of the Company, dated as of the Closing Date, to the effect that the conditions specified in this Section are satisfied.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger shall will be subject to the satisfaction at (or waiver, if permissible pursuant to applicable Legal Requirements, by Parent and Merger Sub) prior to the Closing Date Effective Time of each of the following conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval shall have been obtained. (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made set forth in this Agreement (except for the representations and warranties in Section 2.1, Sections 2.3(a)-(c), Section 2.5(b), Section 2.19, Section 2.21, the first sentence of Section 2.23, and Section 2.24 of this Agreement) shall have been be true and correct as of the date of this Agreement and as of the Closing Date (without giving effect to any qualifications or limitations limitation as to “materiality” or “Company Material Adverse Effect” set forth therein), except ) on and as does not constitute a Company Material Adverse Effect, of the Closing Date as if made on and as of such time (except to the extent any such representations and warranties representation or warranty is expressly relate to made as of an earlier time (date or time, in which casecase as of such earlier date or time), except where the failure of any such representations and warranties representation or warranty to be true and correct as of such times does would not constitute Company Material Adverse Effect). (d) The Company shall have performed or complied in all material respects with all agreements and covenants required by this Agreement reasonably be expected to be performed or complied with by it at or prior to the Closing Date. (e) Prior to or at the Closing, Parent shall have received a certificate, validly executed by the Secretary of the Company, certifying (i) as to the adoption of resolutions of the board of directors of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation of such transaction or (iii) have, individually or in the aggregate, a Company Material Adverse Effect, (ii) the representations and no such judgment, order, decree, stipulation or injunction by any Governmental Entity warranties of competent jurisdiction the Company set forth in Sections 2.3(a)-(c) and Section 2.5(b) of this Agreement shall be true and correct in effectall respects (other than, with respect to Sections 2.3(a)-(c), de minimis inaccuracies) on and as of the Closing Date as if made on and as of such time (except to the extent any such representation or warranty is expressly made as of an earlier date or time, in which case as of such earlier date or time) and (iii) the representations and warranties of the Company set forth in Section 2.1, Section 2.19, Section 2.21, the first sentence of Section 2.23, and Section 2.24 of this Agreement shall be true and correct in all material respects on and as of the Closing Date as if made on and as of such time (except to the extent any such representation or warranty is expressly made as of an earlier date or time, in which case as of such earlier date or time). (gb) Prior to or at the Closing, the The Company shall not be in material breach of any of the covenants or agreements it is required to comply with or perform at or prior to the Closing under this Agreement. (c) Since the date of this Agreement, there shall not have delivered in form occurred any Material Adverse Effect. (d) Xxxxxx and substance reasonably acceptable to Parent Xxxxxx Sub shall have received a certificate of the Chief Executive Officer Company, validly executed for and on behalf of the CompanyCompany and in its name by a duly authorized executive officer thereof, dated as of the Closing Date, to the effect certifying that the conditions specified set forth in this Section are 6.2(a), Section 6.2(b) and Section 6.2(c) have been satisfied.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger shall be transactions contemplated by this Agreement are subject to the satisfaction fulfillment at or prior to the Closing Date Effective Time of each of the following additional conditions, any or all of which may be waived, waived in writing, exclusively whole or part by Parent and Merger Subto the extent permitted by applicable Law: (a) The Required Shareholder Approval shall have been obtained. (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company (i) set forth in Sections 3.3 and 3.22 shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as if made on and as of such date and time, (ii) set forth in Section 3.6(a) shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as if made on and as of such date and time, subject to the “Material Adverse Effect” qualifier therein, (iii) set forth in Section 3.2(a) shall be true and correct in all but de minimis respects as of the date of this Agreement and as of the Closing Date as if made on and as of such date and time (except for representations and warranties made as of a specified date, only as of the specified date) and (iv) set forth in this Agreement (other than those Sections specifically identified in clauses (i), (ii) and (iii)) without giving any effect as to any “materiality” or “Material Adverse Effect” qualification therein, shall have been be true and correct as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (without giving effect to any qualifications or limitations as to “materiality” or “Company Material Adverse Effect” set forth therein), except as does not constitute a Company Material Adverse Effect, except to the extent such for representations and warranties expressly relate to an earlier time made as of a specified date, only as of the specified date), except, in the case of this clause (in which caseiv), where the failure of such representations and warranties to be true and correct as of such times does has not constitute Company had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect). (db) The Company shall have performed or complied in all material respects with all covenants and agreements and covenants contained herein required by this Agreement to be performed or complied with by it at or prior to the Closing Date. (e) Prior to or at the time of the Closing, Parent . (c) The Company shall have received delivered to Parent a certificate, validly executed dated the date of the Closing, signed by the Secretary an executive officer of the Company, certifying (i) as to the adoption of resolutions fulfillment of the board conditions specified in Sections 7.2(a) and 7.2(b). (d) Since the date of directors of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which there shall not have been any effect, change, event or written consent via which such action was taken), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending occurrence that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation had or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement reasonably be expected to be rescinded following consummation of such transaction or (iii) have, individually or in the aggregate, a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effect. (ge) Prior to or at The holders of no more than 10% of the Closing, the Company Shares shall have delivered in form and substance reasonably acceptable to Parent validly served a certificate written objection under Section 238(2) of the Chief Executive Officer of the Company, dated as of the Closing Date, to the effect that the conditions specified in this Section are satisfiedCayman Companies Law.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger shall be are subject to the satisfaction (or waiver by Parent and/or Merger Sub, as applicable) at or prior to the Closing Date of each Effective Time of the following further conditions; provided that notwithstanding the foregoing or anything in this Agreement to the contrary, any of which may after January 31, 2007, neither Section 7.02(a) nor 7.02(c) shall be waived, in writing, exclusively by a condition to Parent and Merger Sub’s obligations to consummate the Merger: (a) The Required Shareholder Approval shall have been obtained. (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made contained in this Agreement agreement shall have been be true and correct as of the date of this Agreement when made and at and as of the Closing Date as if made at and as of the Closing (without giving effect to any qualifications or limitations as to “materiality” or “Company Material Adverse Effect” set forth therein), except as does not constitute a Company Material Adverse Effect, except to the extent such for those representations and warranties expressly relate that address matters only as of a particular date or only with respect to an earlier a specific period of time (in which case, where the failure of such representations and warranties to need only be true and correct as of such times date or with respect to such period), except where the failure of such representations or warranties to be true and correct (without giving effect to any materiality qualifiers set forth in such representations and warranties) does not constitute Company Material Adverse Effect). (d) The Company shall have performed or complied in all material respects with all agreements and covenants required by this Agreement would not reasonably be expected to be performed or complied with by it at or prior to the Closing Date. (e) Prior to or at the Closing, Parent shall have received a certificate, validly executed by the Secretary of the Company, certifying (i) as to the adoption of resolutions of the board of directors of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation of such transaction or (iii) have, individually or in the aggregate, a Company Material Adverse Effect; provided, however, that notwithstanding the foregoing, the representations and no such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction warranties set forth in Section 4.03 shall be true and correct in effect.all material respects and the representations and warranties set forth in the second sentence of Section 4.08 shall be true and correct in all respects at and as of the Closing as if made at and as of the Closing (except for those representations and warranties that address matters only as of a particular date or only with respect to a specific period of time which need only be true and correct as of such date or with respect to such period); (gb) Prior the Company shall have performed in all material respects its obligations hereunder required to be performed by it at or at prior to the ClosingEffective Time; (c) since December 31, 2005, there shall not have been any change, event, circumstance or effect that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; (d) the Company shall have obtained the consents and Requisite Regulatory Approvals listed in Schedule 4.06, other than such consents and approvals the failure of which to obtain would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect; provided that the failure to obtain any consents or approvals due to the identity of Parent or its Affiliates shall not be taken into account in determining whether or not the condition in this Section 7.02(d) is satisfied; and (e) the Company shall have delivered in form and substance reasonably acceptable to Parent a certificate of the Chief Executive Officer of the Company, (dated as of the Closing Date), signed by an officer or officers with authority to bind the effect that Company as to compliance with the conditions specified set forth in paragraphs (a) (if applicable), (b) and (d) of this Section 7.02. For the avoidance of doubt, nothing in this Section are satisfiedAgreement shall be construed to require or otherwise impose as a condition to Parent or Merger Sub’s obligation to consummate the Merger that Parent shall have received or otherwise has available financing in order to satisfy its payment obligations hereunder, including with respect to payment of the Merger Consideration.

Conditions to the Obligations of Parent and Merger Sub. The In addition to the conditions set forth in Section 7.1, the respective obligations of Parent and Merger Sub to consummate and effect the Merger shall be are subject to the satisfaction or (to the extent permitted by Law) waiver by Parent at or prior to the Merger Closing Date of each of the following further conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval shall have been obtained. (b) No Governmental Entity each of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made (i) set forth in this Agreement Section 4.2(a), (b) and (c) (Capitalization; Subsidiaries), Section 4.3 (Authority Relative to Agreement) and Section 4.27 (Brokers) shall have been be true and correct in all respects at and as of the date of this Agreement and the Merger Closing Date (except, with respect to Section 4.2(a), (b) and (c), to the extent that any inaccuracies would be de minimis, in the aggregate), (ii) set forth in Section 4.2(d) (Indebtedness) shall be true and correct in all material respects at and as of the date of this Agreement, (iii) set forth in Section 4.10(a) (Absence of Company Material Adverse Effect) shall be true and correct in all respects at and as of the date of this Agreement and the Merger Closing Date Date, and (iv) set forth in Article IV hereof (other than Section 4.2(a), (b), (c) and (d), Section 4.3, Section 4.10(a) and Section 4.27), without giving effect to any qualifications or limitations as to “materiality” materiality or “Company Material Adverse Effect” set forth Effect or other similar qualifications contained therein), except shall be true and correct at and as does not constitute a Company Material Adverse Effect, of the date of this Agreement and the Merger Closing Date (except to the extent such representations and warranties expressly relate to made as of an earlier time (date, in which case, where the failure case as of such representations and warranties date), except in the case of clause (iv) for such failures to be true and correct as of such times does would not constitute constitute, individually or in the aggregate, a Company Material Adverse Effect).; (db) The the Company shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by it at on or prior to the Merger Closing Date.; (ec) Prior to or at since the Closing, Parent shall have received a certificate, validly executed by the Secretary date of the Company, certifying (i) as to the adoption of resolutions of the board of directors of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which there shall not have occurred any change, effect, development or written consent via which such action was taken), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation of such transaction or (iii) havecircumstance that, individually or in the aggregate, constitutes or is reasonably likely to constitute a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effect.; and (gd) Prior to or at the Closing, the Company shall have delivered in form and substance reasonably acceptable to Parent a certificate of certificate, dated the Chief Executive Officer Merger Closing Date and signed by an executive officer of the Company, dated as of the Closing Date, certifying to the effect that the conditions specified set forth in this Section are 7.2(a), Section 7.2(b) and Section 7.2(c) have been satisfied.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger shall be are subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by Parent) of the following further conditions: (a) the Company shall have performed in all material respects all of its obligations, covenants and agreements hereunder required to be complied with or performed by it at or prior to the Closing Date of each of the following conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval shall have been obtained.Effective Time; (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made contained in this Agreement Section 4.5(a) shall have been be true and correct in all respects (other than de minimis inaccuracies), at and as of the date of this Agreement and at and as of the Closing Date as if made at and as of the Closing (without giving effect to any or, if such representations and warranties are given as of another specific date, at and as of such date); (ii) the representations and warranties of the Company contained in Section 4.1 (other than the third sentence thereof), Section 4.2, Section 4.4, Sections 4.5(b) and 4.5(c), Section 4.6(b), Section 4.24, Section 4.25, Section 4.26 and Section 4.27 shall be true and correct in all material respects, at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (iii) the representations and warranties of the Company contained in Section 4.10 shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of the Company contained in this Agreement, shall be true and correct (disregarding all qualifications or limitations as to “materiality” or “Company Material Adverse Effect”, “materially” and words of similar important set forth therein)) at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, except as does not constitute a Company Material Adverse Effect, except to the extent if such representations and warranties expressly relate to an earlier time are given as of another specific date, at and as of such date), except, in the case of this clause (in which caseiv) only, where the failure of such representations and warranties to be so true and correct as of such times does correct, individually or in the aggregate, has not constitute had and would not reasonably be expected to have, a Company Material Adverse Effect).; (dc) The Company shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by it at or prior to since the Closing Date. (e) Prior to or at the Closing, Parent shall have received a certificate, validly executed by the Secretary date of the Company, certifying (i) as to the adoption of resolutions of the board of directors of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction there shall be pending not have occurred any Effect that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation had or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement reasonably be expected to be rescinded following consummation of such transaction or (iii) have, individually or in the aggregate, a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effect.; (gd) Prior to or at the Closing, Parent shall have received a certificate from an executive officer of the Company confirming the satisfaction of the conditions set forth in Section 9.2(a), Section 9.2(b) and Section 9.2(c); and (e) Parent shall have delivered received copies of a Payoff Letter, in a form and substance reasonably acceptable satisfactory to Parent a certificate of the Chief Executive Officer of Parent, with respect to (i) the Company’s Amended and Restated First Lien Term Loan Credit Agreement, dated as of October 19, 2020 and as amended or otherwise modified from time to time, with Bank of America, N.A., as administrative agent and (ii) the Closing DateCompany’s Revolving Credit Agreement, dated as of October 20, 2016, as amended by Amendment No. 1 dated June 12, 2017, Amendment No. 2 dated January 31, 2020 and Amendment No. 3 dated October 19, 2020 and as further amended or otherwise modified from time to the effect that the conditions specified in this Section are satisfiedtime, with Bank of America, N.A., as administrative agent.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger shall be are subject to the satisfaction at (or prior to the Closing Date of each of the following conditions, any of which may be waived, in writing, exclusively waiver by Parent and Merger Sub) of the following conditions: (a) The Required Shareholder Approval shall have been obtained. (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has Other than the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made contained in Section 4.1 (Organization), Section 4.3 (Capitalization), Section 4.4 (Authorization; Validity of Agreement; Opinion of Financial Advisor), Section 4.10 (Absence of Certain Changes) and Section 4.17 (Brokers or Finders), the representations and warranties of the Company contained in this Agreement shall have been true and correct as of (disregarding for the date purpose of this Agreement and as clause (i) any limitation or qualification of the Closing Date (without giving effect to any qualifications or limitations as to “materiality” or “Company Material Adverse Effect” set forth therein”) shall be true and correct in all respects as of the date hereof and as of the Closing, as though made on and as of such date and time (except to the extent expressly made as of an earlier date, in which case as of such earlier date), except as does not constitute a Company Material Adverse Effect, except to the extent such representations and warranties expressly relate to an earlier time (in which case, where the failure of such representations and warranties failures to be true and correct as of such times does correct, individually or in the aggregate, has not constitute had and would not reasonably be expected to have a Company Material Adverse Effect; and (ii) the representations and warranties set forth in Section 4.1 (Organization), Section 4.3 (Capitalization), Section 4.4 (Authorization; Validity of Agreement; Opinion of Financial Advisor), Section 4.10(Absence of Certain Changes) and Section 4.17 (Brokers or Finders) shall be true and correct in all respects (except, for de minimis inaccuracies) as of the date hereof and as of the Closing, as though made on and as of such date and time (except to the extent expressly made as of an earlier date, in which case as of such earlier date). (db) The the Company shall have performed or all obligations and complied with all covenants, in each case in all material respects with all agreements and covenants respects, required by this Agreement to be performed or complied with by it at or prior to the Closing Date.Closing; (ec) Prior to or at the Closing, Parent shall have received a certificate, validly executed by the Secretary of the Company, certifying (i) as to the adoption of resolutions of the board of directors of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation of such transaction or (iii) have, individually or in the aggregate, a no Company Material Adverse Effect, Effect shall have occurred and no such judgment, order, decree, stipulation or injunction by any Governmental Entity be continuing following the date of competent jurisdiction shall be in effect.this Agreement; and (gd) Prior to or at the Closing, the Company shall have delivered in form and substance reasonably acceptable to Parent a certificate of the Chief Executive Officer of the Companycertificate, dated as of the Closing Date, signed by an officer of the Company, certifying to the effect that satisfaction of the conditions specified in this Section are satisfied8.2(a), Section 8.2(b), and Section 8.2(c).

Conditions to the Obligations of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub to consummate and effect the Merger shall be is subject to the satisfaction satisfaction, at or prior to the Closing Date of each Closing, of the following conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval shall have been obtained. (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is Other than the representations and warranties set forth in effect Section 4.01 (Corporate Existence and Power), Section 4.02 (iiCorporate Authorization), Section 4.05 (Capitalization), Section 4.09(b) has (Absence of Company Material Adverse Effect), Section 4.24 (Brokers’ Fees), Section 4.25 (Opinion of Financial Advisor) and Section 4.23 (State Takeover Laws), the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made set forth in Article 4 of this Agreement shall have been be true and correct (without giving effect to any materiality or Company Material Adverse Effect qualifications set forth therein) as of the date hereof and as of this Agreement the Closing Date as if made at and as of the Closing Date (without giving effect to any qualifications or limitations as to “materiality” or “Company Material Adverse Effect” set forth therein), except as does not constitute a Company Material Adverse Effect, except to the extent that any such representations representation and warranties warranty expressly relate to speaks as of an earlier time (date, in which case, where the failure of case such representations representation and warranties to warranty shall be true and correct as of such times does earlier date), except for such failures to be so true and correct that, individually or in the aggregate, have not constitute had and would not reasonably be expected to have a Company Material Adverse Effect, (ii) the representations and warranties set forth in Section 4.01 (Corporate Existence and Power)., Section 4.02 (Corporate Authorization), Section 4.24 (Brokers; Fees), Section 4.25 (Opinion of Financial Advisor) and Section 4.23 (State Takeover Laws) shall be true and correct in all material respects (without giving effect to any materiality or Company Material Adverse Effect qualifications set forth therein) as of the date hereof and as of the Closing Date as if made at and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct in all material respects as of such earlier date), (iii) the representations and warranties set forth in Section 4.05 (Capitalization) shall be true and correct in all respects as of the date hereof and as of the Closing Date as if made at and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct in all respects as of such earlier date), except where the failure to be so true and correct would not, individually or in the aggregate, increase the aggregate consideration payable pursuant to this Agreement by more than a de minimis amount and (iv) the representations and warranties set forth in Section 4.09(b) (Absence of Company Material Adverse Effect) shall be true and correct in all respects as of the date hereof and as of the Closing Date as if made at and as of the Closing Date; (db) The the Company shall have performed or complied in all material respects with all agreements and covenants obligations required by this Agreement to be performed or complied with by it under this Agreement at or prior to the Closing Date.Closing; (ec) Prior to or at the Closing, Parent shall have received at the Closing a certificate, validly executed by the Secretary of the Company, certifying (i) as to the adoption of resolutions of the board of directors certificate signed on behalf of the Company whereby by the Chief Executive Officer or the Chief Financial Officer of the Company certifying that the conditions set forth in Section 7.02(a), Section 7.02(b) and Section 7.02(d) have been satisfied; and (d) since the date of this Agreement, the Merger there shall not have occurred and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation of such transaction or (iii) have, individually or in the aggregate, a continuing any Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effect. (g) Prior to or at the Closing, the Company shall have delivered in form and substance reasonably acceptable to Parent a certificate of the Chief Executive Officer of the Company, dated as of the Closing Date, to the effect that the conditions specified in this Section are satisfied.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger shall be are subject to the satisfaction or waiver of the following additional conditions: (a) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Closing Date of each of the following conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval shall have been obtained.Effective Time; (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made contained in this Agreement the first sentence of Section 4.01 (Corporate Existence and Power), Section 4.02 (Corporate Authorization), Section 4.04(a) (Non-Contravention), Section 4.05(b) (Capitalization) Section 4.06(b) (Subsidiaries) (except for the first sentence thereof), Section 4.23 (Finders’ Fees) and Section 4.24 (Anti-Takeover Statutes) (except in the case of the first sentence of Section 4.01, disregarding all materiality and Company Material Adverse Effect qualifications contained therein) shall have been be true and correct in all material respects at and as of the date of this Agreement and the Effective Time as if made at and as of the Closing Date such times (without giving effect to any qualifications or limitations as to “materiality” or “Company Material Adverse Effect” set forth therein), except as does not constitute a Company Material Adverse Effect, except to the extent such other than representations and warranties expressly relate to an earlier time (in that by their terms address matters only as of another specified time, which case, where the failure shall be so true only as of such time), (ii) the representations and warranties to of the Company contained in Section 4.05(a), Section 4.05(c), the first sentence of Section 4.06(b) and Section 4.10(b) (Absence of Certain Changes) shall be true and correct in all respects (other than de minimis inaccuracies) contained therein at and as of the date of this Agreement and the Effective Time as if made at and as of such times does not constitute (other than representations and warranties that by their terms address matters only as of another specified time, which shall be so true only as of such time) and (iii) the other representations and warranties of the Company contained in this Agreement (disregarding all materiality and Company Material Adverse Effect). (dEffect qualifications contained therein) The Company shall have performed or complied be true in all material respects with all agreements at and covenants required by as of the date of this Agreement to and the Effective Time as if made at and as of such times (other than representations and warranties that by their terms address matters only as of another specified time, which shall be performed or complied so true only as of such time), with by it at or prior to only such exceptions in the Closing Date. case of this clause (e) Prior to or at the Closing, Parent shall have received a certificate, validly executed by the Secretary of the Company, certifying (ib) as have not had and would not reasonably be expected to the adoption of resolutions of the board of directors of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation of such transaction or (iii) have, individually or in the aggregate, a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effect.; (gc) Prior Since the date hereof, there shall not have occurred and be continuing any event, occurrence, fact, condition, change, development or effect that has had or would reasonably be expected to have, individually or at in the Closingaggregate, a Company Material Adverse Effect; and (d) Parent shall have received a certificate signed by an executive officer of the Company shall have delivered in form and substance reasonably acceptable to Parent a certificate of the Chief Executive Officer of the Company, dated as of the Closing Date, to the effect that the conditions specified set forth in this Section are the preceding clauses (a), (b) and (c) have been satisfied.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger shall be are subject to the satisfaction at or prior (or, to the Closing Date of each extent permitted by Applicable Law, written waiver by Parent) of the following additional conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval shall have been obtained. (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made in this Agreement shall have been true and correct as of the date of this Agreement and as of the Closing Date (without giving effect to any qualifications or limitations as to “materiality” or “Company Material Adverse Effect” set forth therein), except as does not constitute a Company Material Adverse Effect, except to the extent such representations and warranties expressly relate to an earlier time (in which case, where the failure of such representations and warranties to be true and correct as of such times does not constitute Company Material Adverse Effect). (d) The Company shall have performed or and complied with in all material respects with all of the covenants, obligations and agreements and covenants hereunder required by this Agreement to be performed or complied with by it at or prior to the Closing, (ii) the representations and warranties of the Company contained in Section 4.01(a) (Corporate Existence and Power), Section 4.02 (Corporate Authorization), Section 4.04(a) (Non-Contravention), the first sentence of Section 4.06(a) (Subsidiaries and Minority-Owned Entities) (solely with respect to the due formation and valid existence of the Significant Subsidiaries), clause (ii) of the first sentence of Section 4.06(c) (Subsidiaries and Minority-Owned Entities), the first sentence of Section 4.25 (Finders’ Fees) and Section 4.27 (Antitakeover Statutes) shall be true in all material respects at and as of the Closing Date. (eother than any such representations and warranties containing materiality or Company Material Adverse Effect qualifications, which shall be true in all respects) Prior as if made at and as of such time (other than representations and warranties that by their terms address matters only as of another specified time, which shall be so true only as of such time), (iii) the representations and warranties of the Company contained in the last sentence of Section 4.06(c) (Subsidiaries and Minority-Owned Entities) shall be true in all respects at and as of the date hereof as if made at and as of such time, with only such exceptions in the case of this clause (iii) as would not reasonably be expected to prevent, impair or materially delay the consummation of the transactions contemplated hereby, (iv) the representations and warranties of the Company contained in Section 4.05(a) and Section 4.05(c) (Capitalization) shall be true in all respects as of the Closing as if made at and as of such time (other than representations and warranties that by their terms address matters only as of another specified time, which shall be so true only as of such time), except where the failure to be true in all respects would not reasonably be expected to result in the requirement of Parent or, following the Closing, the Company or any of their respective Affiliates, to pay any amount of additional consideration hereunder in the aggregate in excess of $20,000,000 relative to the amount that would have been payable thereby had the representations and warranties set forth in Section 4.05(a) and Section 4.05(c) been true and correct in all respects as of the Closing, (v) the representations and warranties of the Company contained in Section 4.10(b) (Absence of Certain Changes) shall be true in all respects at and as of the Closing as if made at and as of such time, (vi) the other representations and warranties of the Company contained in this Agreement (disregarding all materiality and Company Material Adverse Effect qualifications contained therein) shall be true in all respects at and as of the Closing as if made at and as of such time (other than representations and warranties that by their terms address matters only as of another specified time, which shall be so true only as of such time), with only such exceptions in the case of this clause (vi) as have not had a Company Material Adverse Effect and (vii) Parent shall have received a certificate, validly executed certificate signed by the Secretary of the Company, certifying (i) as to the adoption of resolutions of the board of directors an executive officer of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy on behalf of the meeting minutes at which or written consent via which such action was taken), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation of such transaction or (iii) have, individually or in the aggregate, a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effect. (g) Prior to or at the Closing, the Company shall have delivered in form and substance reasonably acceptable to Parent a certificate of the Chief Executive Officer of the Company, dated as of the Closing Date, to the effect that the conditions specified set forth in this foregoing clauses (i)—(vi) and Section are 9.02(b) have been satisfied. (b) Since the date of this Agreement, no Company Material Adverse Effect shall have occurred and be continuing.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger shall be are subject to the satisfaction or valid waiver of the following further conditions: (i) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Closing Date of each of the following conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval shall have been obtained. (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and Effective Time; (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties (A) set forth in SECTION 4.5 shall be true and correct in all respects (except for inaccuracies that are de minimis in the aggregate) as of the Company Effective Time as if made at and as of such time and (B) set forth in this Agreement ARTICLE IV, other than those described in clause (A) above, shall have been be true and correct as of the date of this Agreement the Effective Time as if made at and as of the Closing Date such time (without giving effect to any qualifications or limitations qualification as to “"materiality” " or “Company "Material Adverse Effect” " set forth therein), except as in the case of this CLAUSE (B) where the failure to be so true and correct does not constitute a Company Material Adverse EffectEffect on the Company, except to the extent such PROVIDED that representations and warranties expressly relate to an earlier time (in which case, where the failure made as of such representations and warranties a specific date shall be required to be so true and correct (subject to such qualifications) as of such times does not constitute Company Material Adverse Effect). date only; and (diii) The Company shall have performed or complied in all material respects with all agreements Parent and covenants required by this Agreement to be performed or complied with by it at or prior to the Closing Date. (e) Prior to or at the Closing, Parent Merger Sub shall have received a certificate, validly executed certificate signed by the Secretary a senior officer of the Company, certifying Company attesting to (i) as to the adoption of resolutions of the board of directors of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken), and (ii) above; (b) Parent and Merger Sub have obtained the Financing (other than the equity financing described in the GEI IV Letter); PROVIDED, that the Required Shareholder Approval has been obtained and condition set forth in this SECTION 9.2(B) shall be deemed waived if the failure to satisfy such condition arises out of or results from a willful breach by Parent or Merger Sub of their respective obligations under SECTION 7.3; and (c) the aggregate number of shares of Common Stock at the Effective Time, the holders of which attaches a copy have demanded appraisal of their shares from the Company in accordance with the provisions of Section 262 of the notice of meetingDelaware Corporate Law, minutes and/or other documents evidencing receipt shall not equal 15% or more of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation of such transaction or (iii) have, individually or in the aggregate, a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effect. (g) Prior to or at the Closing, the Company shall have delivered in form and substance reasonably acceptable to Parent a certificate of the Chief Executive Officer of the Company, dated Common Stock outstanding as of the Closing Date, to record date for the effect that the conditions specified in this Section are satisfiedStockholder Meeting.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Xxxxxx Sub to consummate and effect the Merger shall be and the other Transactions are subject to the satisfaction satisfaction, or, to the extent permitted by Applicable Law, waiver, at or prior to the Closing Date of each Closing, of the following conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval shall have been obtained. (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made in this Agreement Section 4.04(a), Section 4.04(b)(i), and Section 4.04(c)(i)-(iv) (Capitalization) shall have been be true and correct as of in all respects on the date of this Agreement and as of the Closing Date with the same effect as if made as of the Closing Date, in each case other than de minimis inaccuracies (without giving provided that those representations and warranties that address matters only as of a particular date need only be true and correct as of such date other than de minimis inaccuracies); (ii) the representations and warranties of the Company in Section 4.01(a) (Organization), Section 4.02 (Corporate Authorization), Section 4.04(b) and Section 4.04(c) (in each case, other than the representations and warranties set forth in clause (i) of this Section 7.02(a)) (Capitalization) and Section 4.25 (Brokers’ Fees) shall be true and correct in all material respects on the date of this Agreement and as of the Closing Date with the same effect to any as if made as of the Closing Date (provided that those representations and warranties that address matters only as of a particular date need only be true and correct in all material respects as of such date); and (iii) all other representations and warranties of the Company set forth in Article 4, disregarding all materiality, Material Adverse Effect or similar qualifications or limitations exceptions contained therein, shall be true and correct in all respects on the date of this Agreement and as to “materiality” or “Company Material Adverse Effect” set forth thereinof the Closing Date with the same effect as if made as of the Closing Date (provided that those representations and warranties that address matters only as of a particular date need only be true and correct as of such date), except as does not constitute a Company Material Adverse Effect, except to the extent such representations and warranties expressly relate to an earlier time (for those instances in which case, where the failure of such representations and warranties to be so true and correct as of such times does would not constitute Company Material Adverse Effect). (d) The Company shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by it at or prior to the Closing Date. (e) Prior to or at the Closing, Parent shall have received a certificate, validly executed by the Secretary of the Company, certifying (i) as to the adoption of resolutions of the board of directors of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation of such transaction or (iii) have, individually or in the aggregate, a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effect.; (gb) Prior to or at the Closing, the Company shall have delivered performed and complied in form all material respects with all covenants required to be performed or complied with by the Company under this Agreement at or prior to the Closing; (c) since the date of this Agreement, no Company Material Adverse Effect shall have occurred and substance reasonably acceptable to be continuing; and (d) Parent shall have received a certificate validly signed on behalf of the Chief Executive Officer Company by a duly authorized executive officer of the Company, dated as of the Closing Date, to the effect Company certifying that the conditions specified set forth in this Section are 7.02(a), Section 7.02(b) and Section 7.02(c) have been satisfied.

Conditions to the Obligations of Parent and Merger Sub. The In addition to the conditions set forth in Section 7.1, the respective obligations of Parent and Merger Sub to consummate and effect the Merger shall be are subject to the satisfaction or (to the extent permitted by Law) waiver by Parent at or prior to the Merger Closing Date of each of the following further conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval shall have been obtained. (b) No Governmental Entity each of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made (i) set forth in this Agreement Section 4.2(a), (b) and (c) (Capitalization; Subsidiaries) and Section 4.3 (Authority Relative to Agreement) shall have been be true and correct in all respects at and as of the date of this Agreement and the Merger Closing Date (except to the extent that any inaccuracies would be de minimis), (ii) set forth in Section 4.2(d) (Indebtedness) and Section 4.27 (Brokers) shall be true and correct in all material respects at and as of the date of this Agreement, (iii) set forth in Section 4.10(a) (Absence of Company Material Adverse Effect) shall be true and correct in all respects at and as of the date of this Agreement and the Merger Closing Date Date, and (iv) set forth in Article IV hereof (other than Section 4.2(a), (b) , (c) and (d) , Section 4.3, Section 4.10(a) and Section 4.27), without giving effect to any qualifications or limitations as to “materiality” materiality or “Company Material Adverse Effect” set forth Effect or other similar qualifications contained therein), except shall be true and correct at and as does not constitute a Company Material Adverse Effect, of the date of this Agreement and the Merger Closing Date (except to the extent such representations and warranties expressly relate to made as of an earlier time (date, in which case, where the failure case as of such representations and warranties date), except in the case of clause (iv) for such failures to be true and correct as of such times does would not constitute constitute, individually or in the aggregate, a Company Material Adverse Effect).; (db) The the Company shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by it at on or prior to the Merger Closing Date.; (ec) Prior to or at since the Closing, Parent shall have received a certificate, validly executed by the Secretary date of the Company, certifying (i) as to the adoption of resolutions of the board of directors of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which there shall not have occurred any change, effect, development or written consent via which such action was taken), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation of such transaction or (iii) havecircumstance that, individually or in the aggregate, constitutes or is reasonably likely to constitute a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effect.; and (gd) Prior to or at the Closing, the Company shall have delivered in form and substance reasonably acceptable to Parent a certificate of certificate, dated the Chief Executive Officer Merger Closing Date and signed by an executive officer of the Company, dated as of the Closing Date, certifying to the effect that the conditions specified set forth in this Section are Sections 7.2(a), (b) and (c) have been satisfied.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger shall be are subject to the satisfaction (or the waiver by Parent) of the following conditions: (a) the Company shall have performed in all material respects all of its obligations under this Agreement required to be performed by it at or prior to the Closing Date of each of the following conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval shall have been obtained.Effective Time; (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made set forth in Sections ‎4.01, ‎4.02, ‎4.04(a), 4.26, 4.27 and 4.28 of this Agreement shall be true and correct in all material respects as of the date of this Agreement and at and as of the Effective Time (except to the extent any such representation or warranty expressly relates to an earlier date or period, in which case as of such date or period), (ii) the representations and warranties of the Company set forth in the first three sentences of Section 4.05, the first two sentences of Section 4.05(b) and the second sentence of Section 4.06(b) of this Agreement shall be true and correct, other than in de minimis respects, as of the date of this Agreement and at and as of the Effective Time (except to the extent any such representation or warranty expressly relates to an earlier date or period, in which case as of such date or period); (iii) the representation and warranty of the Company set forth in ‎Section 4.10(b) of this Agreement shall be true and correct in all respects as of the date of this Agreement and at and as of the Effective Time; and (iv) the representations and warranties of the Company set forth in this Agreement (other than those referred to in the preceding clauses (i)-(iii)) shall have been be true and correct as of the date of this Agreement and at and as of the Closing Date Effective Time (without giving effect to any qualifications or limitations as to “materiality” or “Company Material Adverse Effect” set forth therein), except as does not constitute a Company Material Adverse Effect, except to the extent any such representations and warranties representation or warranty expressly relate relates to an earlier time (date or period, in which casecase as of such date or period), except where the failure of such representations and warranties to be so true and correct as of such times does has not constitute had a Company Material Adverse Effect). (d) The Company shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by it at or prior to the Closing Date. (e) Prior to or at the Closing, Parent shall have received a certificate, validly executed by the Secretary of the Company, certifying (i) as to the adoption of resolutions of the board of directors of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken)Effect that is continuing, and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall would not reasonably be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement expected to be rescinded following consummation of such transaction or (iii) have, individually or in the aggregate, a Company Material Adverse Effect, in the case of clauses (i), (ii), and no (iv) disregarding for this purpose all “Company Material Adverse Effect” and “materiality” qualifications contained in such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effect.representations and warranties; (gc) Prior since the date hereof, no event, occurrence, change, state of circumstances or facts has occurred or arisen, that, individually or in the aggregate with all other events, occurrences, changes, states of circumstances or facts occurring or arising since the date hereof, would reasonably be expected to or at the Closing, have a Company Material Adverse Effect; and (d) the Company shall have delivered in form and substance reasonably acceptable to Parent a certificate signed on behalf of the Chief Executive Officer Company by an executive officer of the Company, Company dated as of the Closing Date, to the effect Date certifying that the conditions specified in this Section are paragraphs (a), (b) and (c) have been satisfied.

Conditions to the Obligations of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub to consummate and effect the Merger shall be is subject to the satisfaction satisfaction, at or prior to the Closing Date of each Closing, of the following conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval shall have been obtained. (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made set forth in this Agreement shall have been be true and correct as of on the date of this Agreement hereof and on the Closing Date as of if made on the Closing Date (without giving effect to any qualifications or limitations as to “materiality” or “Company Material Adverse Effect” set forth therein), except as does not constitute a Company Material Adverse Effect, except to the extent that any such representations representation and warranties warranty expressly relate to speaks as of an earlier time (date, in which casecase such representation and warranty shall be true and correct only as of such earlier date), except where the failure of such representations and warranties to be so true and correct (disregarding all qualifications or limitations as of such times does not constitute to “materiality,” “Company Material Adverse Effect). (d” or words of similar import) The Company shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by it at or prior to the Closing Date. (e) Prior to or at the Closing, Parent shall have received a certificate, validly executed by the Secretary of the Company, certifying (i) as to the adoption of resolutions of the board of directors of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation of such transaction or (iii) havenot, individually or in the aggregate, have a Company Material Adverse Effect; provided that, notwithstanding the foregoing, (i) the representations and no such judgmentwarranties set forth in Section 4.01 (Corporate Existence and Power), order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction Section 4.02 (Corporate Authorization) and Section 4.23 (Brokers’ Fees) shall be true and correct in effect.all material respects as of the Closing Date as if made on and as of such date (other than representations and warranties that address matters only as of an earlier date, which shall be true and correct in all material respects as of such earlier date) and (ii) the representations and warranties set forth in Section 4.05 (Capitalization) shall be true and correct in all respects as of the Closing Date (other than de minimis failures to be true and correct in all respects and failures resulting from the issuance of shares of Company Common Stock upon the exercise of Company Stock Options or upon the settlement of or pursuant to the terms of Company RSUs, in each case, that are outstanding on the date of this Agreement or that may be awarded as contemplated in Section 6.01(c) and in accordance with the applicable equity award’s terms, the issuance of shares of Company Common Stock in accordance with the terms of the ESPP and the provisions of Section 2.06(c) or with the consent of Parent in accordance with Section 6.01 or the forfeiture Company Equity Awards); (gb) Prior to or at the Closing, the Company shall have delivered performed in form and substance reasonably acceptable all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date (other than those covenants set forth in Section 6.19 (Financing Cooperation)); (c) Parent shall have received at the Closing (x) a certificate signed on behalf of the Company by the Chief Executive Officer or the Chief Financial Officer of the Company certifying that the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied and (y) a certificate prescribed by Treasury Regulation Section 1.1445-2(c)(3) from the Company, dated as in a form reasonably acceptable to the Parent, together with written authorization for the Company to deliver such form and corresponding notice to the Internal Revenue Service pursuant to Treasury Regulation Section 1.897-2(h)(2); and (d) since the date of the Closing DateAgreement, there shall not have occurred and be continuing any event, change, effect or development that, individually or in the aggregate, has had or would reasonably be expected to the effect that the conditions specified in this Section are satisfied.have, a Company Material Adverse Effect

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger shall be are subject to the satisfaction at or prior to the Closing Date of each of the following additional conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval shall have been obtained. (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made in this Agreement shall have been true and correct as of the date of this Agreement and as of the Closing Date (without giving effect to any qualifications or limitations as to “materiality” or “Company Material Adverse Effect” set forth therein), except as does not constitute a Company Material Adverse Effect, except to the extent such representations and warranties expressly relate to an earlier time (in which case, where the failure of such representations and warranties to be true and correct as of such times does not constitute Company Material Adverse Effect). (d) The Company shall have performed or and complied with in all material respects with all of the covenants, obligations and agreements and covenants hereunder required by this Agreement to be performed or complied with by it at or prior to the Closing Date. (e) Prior to or at the Closing, Parent shall have received a certificate, validly executed by the Secretary of the Company, certifying (i) as to the adoption of resolutions of the board of directors of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated representations and warranties of the Company contained in ‎Section 4.01(a) (Corporate Existence and Power), Section 4.02 (Corporate Authorization), Section 4.04(a) (Non-Contravention), Section 4.05(a) and (b) (Capitalization), ‎Section 4.23 (Finders’ Fees), Section 4.24 (Opinion of Financial Advisor) and Section 4.25 (Antitakeover Statutes) that (A) are not qualified by this Agreement to Company Material Adverse Effect or other materiality qualifiers shall be rescinded following consummation true and correct in all respects (but for de minimis inaccuracies) as of the Closing Date as if made at and as of the Closing Date (in each case, other than representations and warranties that by their terms address matters only as of another specified time, which shall be so true only as of such transaction time) and (B) are qualified by Company Material Adverse Effect or other materiality qualifiers shall be true and correct in all respects as of the Closing Date as if made at and as of the Closing Date (in each case, other than representations and warranties that by their terms address matters only as of another specified time, which shall be so true only as of such time) without disregarding such Company Material Adverse Effect or other materiality qualifiers qualifications, (iii) the representations and warranties of the Company contained in Section 4.10(b) (Absence of Certain Changes) shall be true and correct in all respects as of the Closing Date as if made at and as of the Closing Date, (iv) the other representations and warranties of the Company contained in this Agreement (disregarding all materiality and Company Material Adverse Effect qualifications contained therein) shall be true and correct in all respects as of the Closing Date as if made at and as of the Closing Date (other than representations and warranties that by their terms address matters only as of another specified time, which shall be so true only as of such time), with only such exceptions in the case of this clause (iv) as have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, Effect and no such judgment, order, decree, stipulation or injunction (v) Parent shall have received a certificate signed by any Governmental Entity an executive officer of competent jurisdiction shall be in effect. (g) Prior to or at the Closing, the Company shall have delivered in form and substance reasonably acceptable to Parent a certificate of the Chief Executive Officer of the Company, dated as of the Closing Date, to the effect that the conditions specified set forth in this Section are foregoing clauses (i) – (iv) have been satisfied. (b) Since the date of this Agreement, no Company Material Adverse Effect shall have occurred.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger shall be are subject to the satisfaction at (or prior to the Closing Date of each of the following conditions, any of which may be waived, in writing, exclusively waiver by Parent and Merger Sub) of the following further conditions: (a) The Required Shareholder Approval shall have been obtained. (b) No Governmental Entity each of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made (i) set forth in Section 4.2(a) (Capitalization) shall be true and correct except for de minimis inaccuracies as of the date of this Agreement and as of the Closing Date as if made on and as of the Closing Date (unless any such representation or warranty addresses matters only as of a particular date, in which event such representation or warranty shall have been be true and correct except for de minimis inaccuracies only as of such particular date), (ii) set forth in the first sentence of Section 4.1(a) (Organization), in Section 4.3 (Authorization; Validity of Agreement; Company Action), Section 4.22 (Vote Required), and Section 4.23 (Board Recommendation) shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as if made on and as of the Closing Date (unless any such representation or warranty addresses matters only as of a particular date in which event such representation or warranty shall be true and correct in all respects only as of such particular date), (iii) set forth in Section 4.7(a) (Absence of Certain Changes) shall be true and correct as of the date of this Agreement and as of the Closing Date as if made on and as of the Closing Date (excluding, however, clause (a) of the definition of Company Material Adverse Effect for purposes of this clause (iii)) and (iv) set forth in Article IV, other than those Sections specifically identified in clauses (i), (ii) and (iii) of this Section 7.2(a), shall be true and correct as of the date of this Agreement and as of the Closing Date (unless any such representation or warranty addresses matters only as of a particular date in which event such representation or warranty shall be true and correct only as of such particular date), except, in the case of this clause (iv), where the failure to be so true and correct (without giving effect to any qualifications or limitations limitation as to “materiality” or ”, “Company Material Adverse Effect” or similar qualifications as set forth therein), except as does ) would not constitute a Company Material Adverse Effect, except to the extent such representations and warranties expressly relate to an earlier time (in which case, where the failure of such representations and warranties to be true and correct as of such times does not constitute Company Material Adverse Effect). (d) The Company shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by it at or prior to the Closing Date. (e) Prior to or at the Closing, Parent shall have received a certificate, validly executed by the Secretary of the Company, certifying (i) as to the adoption of resolutions of the board of directors of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation of such transaction or (iii) have, individually or in the aggregate, a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effect. (g) Prior to or at the Closing, the Company shall have delivered in form and substance reasonably acceptable to Parent a certificate of the Chief Executive Officer of the Company, dated as of the Closing Date, to the effect that the conditions specified in this Section are satisfied.;

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger shall be are subject to the satisfaction at or prior to the Closing Date of each of the following additional conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval shall have been obtained. (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made in this Agreement shall have been true and correct as of the date of this Agreement and as of the Closing Date (without giving effect to any qualifications or limitations as to “materiality” or “Company Material Adverse Effect” set forth therein), except as does not constitute a Company Material Adverse Effect, except to the extent such representations and warranties expressly relate to an earlier time (in which case, where the failure of such representations and warranties to be true and correct as of such times does not constitute Company Material Adverse Effect). (d) The Company shall have performed or and complied with in all material respects with all of the covenants, obligations and agreements and covenants hereunder required by this Agreement to be performed or complied with by it at or prior to the Closing Date. (e) Prior to or at the Closing, Parent shall have received a certificate, validly executed by the Secretary of the Company, certifying (i) as to the adoption of resolutions of the board of directors of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated representations and warranties of the Company contained in Section 4.01(a) (Corporate Existence and Power), Section 4.02 (Corporate Authorization), Section 4.04(a) (Non-Contravention), Section 4.05(a) and (b) (Capitalization), Section 4.23 (Finders’ Fees), Section 4.24 (Opinion of Financial Advisor) and Section 4.25 (Antitakeover Statutes; Rights Agreement) that (A) are not qualified by this Agreement to Company Material Adverse Effect or other materiality qualifiers shall be rescinded following consummation true and correct in all respects (but for de minimis inaccuracies) as of the date hereof and as of the Closing Date as if made at and as of the Closing Date (in each case, other than representations and warranties that by their terms address matters only as of another specified time, which shall be so true only as of such transaction time) and (B) are qualified by Company Material Adverse Effect or other materiality qualifiers shall be true and correct in all respects as of the date hereof and as of the Closing Date as if made at and as of the Closing Date (in each case, other than representations and warranties that by their terms address matters only as of another specified time, which shall be so true only as of such time) without disregarding such Company Material Adverse Effect or other materiality qualifiers qualifications, (iii) the representations and warranties of the Company contained in Section 4.10(b) (Absence of Certain Changes) shall be true and correct in all respects as of the date hereof and as of the Closing Date as if made at and as of the Closing Date, (iv) the other representations and warranties of the Company contained in this Agreement (disregarding all materiality and Company Material Adverse Effect qualifications contained therein) shall be true and correct in all respects as of the date hereof and as of the Closing Date as if made at and as of the Closing Date (other than representations and warranties that by their terms address matters only as of another specified time, which shall be so true only as of such time), with only such exceptions in the case of this clause (iv) as have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, Effect and no such judgment, order, decree, stipulation or injunction (v) Parent shall have received a certificate signed by any Governmental Entity an executive officer of competent jurisdiction shall be in effect. (g) Prior to or at the Closing, the Company shall have delivered in form and substance reasonably acceptable to Parent a certificate of the Chief Executive Officer of the Company, dated as of the Closing Date, to the effect that the conditions specified set forth in this foregoing clauses (i) – (iv) and Section are 9.02(b) have been satisfied. (b) Since the date of this Agreement, no Company Material Adverse Effect shall have occurred and be continuing.

Conditions to the Obligations of Parent and Merger Sub. The In addition to the conditions set forth in Section 7.1, the respective obligations of Parent and Merger Sub to consummate and effect the Merger shall be are subject to the satisfaction at or (to the extent permitted by Law) waiver by Parent on or prior to the Merger Closing Date of each of the following further conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval shall have been obtained. (b) No Governmental Entity each of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made (i) set forth in this Agreement Section 4.1 (Organization and Qualification; Subsidiaries), Section 4.2 (Capitalization; Subsidiaries), Section 4.3 (Authority Relative to Agreement), Section 4.7 (Opinion of Financial Advisor), Section 4.8 (Brokers) and Section 4.9 (No Dissenter’s Rights) shall have been be true and correct in all respects as of the Merger Closing Date as though made as of such time (except to the extent that any such representation and warranty expressly, including by virtue of the lead in to Article IV, speaks as of a particular date or period of time, in which case such representation and warranty shall be so true and correct as of such particular date or period of time) (except, with respect to Section 4.2, to the extent that any inaccuracies would be immaterial in the aggregate), (ii) set forth in Section 4.5(a) (Absence of Certain Changes or Events) shall be true and correct in all respects at and as of the date of this Agreement and as of the Merger Closing Date Date, and (iii) set forth in Article IV hereof (other than Sections 4.1, 4.2, 4.3, 4.5(a), 4.7, 4.8, and 4.9, without giving effect to any qualifications or limitations as to “materiality” materiality or “Company Material Adverse Effect” set forth Effect or other similar qualifications contained therein), shall be true and correct at and as of the date of this Agreement and the Merger Closing Date (except to the extent expressly made as does of an earlier date, in which case as of such date), except in the case of clause (iii) for such failures to be true and correct as would not constitute a Company Material Adverse Effect, except to the extent such representations and warranties expressly relate to an earlier time (in which case, where the failure of such representations and warranties to be true and correct as of such times does not constitute Company Material Adverse Effect).Effect; (db) The the Company shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by it at on or prior to the Merger Closing Date.Date; and (ec) Prior to or at the Closing, Parent Company shall have received delivered to Parent a certificate, validly executed dated as of the Merger Closing Date and signed by the Secretary an executive officer of the Company, certifying (i) as to the adoption of resolutions of the board of directors of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation of such transaction or (iii) have, individually or in the aggregate, a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effect. (g) Prior to or at the Closing, the Company shall have delivered in form and substance reasonably acceptable to Parent a certificate of the Chief Executive Officer of the Company, dated as of the Closing Date, to the effect that the conditions specified set forth in this Section are 7.2(a) and Section 7.2(b) have been satisfied.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger shall be are subject to the satisfaction at or prior to the Closing Date of each of the following conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval shall have been obtained. (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made in this Agreement shall have been true and correct as of the date of this Agreement and as of the Closing Date (without giving effect to any qualifications or limitations as to “materiality” or “Company Material Adverse Effect” set forth therein), except as does not constitute a Company Material Adverse Effect, except to the extent such representations and warranties expressly relate to an earlier time (in which case, where the failure of such representations and warranties to be true and correct as of such times does not constitute Company Material Adverse Effect). (d) The Company shall have performed or complied in all material respects with all agreements and covenants required by each of its obligations under this Agreement required to be performed or complied with by it at or prior to the Closing Date.Effective Time; (eb) Prior to or at the Closing, Parent shall have received a certificate, validly executed by the Secretary of the Company, certifying (i) as to the adoption of resolutions of the board of directors representations and warranties of the Company whereby this Agreement, the Merger set forth in Section 4.05(a) and the transactions contemplated hereunder were approved by the board first two (2) sentences of directors (attaching a copy Section 4.06(b) of this Agreement shall be true and correct, subject only to de minimis inaccuracies, at and as of the meeting minutes at Effective Time (except to the extent any such representation or warranty expressly relates to an earlier date or period, in which case as of such date or written consent via which such action was takenperiod), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by representations and warranties of the Company set forth in Section 4.01(a) and Section 4.10(ii) of this Agreement to shall be rescinded following consummation true and correct in all respects at and as of such transaction or the Effective Time, (iii) the representations and warranties of the Company set forth in Section 4.02, Section 4.21 and Section 4.22 of this Agreement shall be true and correct in all material respects at and as of the Effective Time (except to the extent any such representation or warranty expressly relates to an earlier date or period, in which case as of such date or period); and (iv) the representations and warranties of the Company set forth in this Agreement (other than those referred to in the preceding clauses (i)-(iii)) shall be true and correct at and as of the Effective Time (except to the extent any such representation or warranty expressly relates to an earlier date or period, in which case as of such date or period), except where the failure of the representations and warranties set forth in this clause (iv) to be so true and correct would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, disregarding for this purpose all “Company Material Adverse Effect”, “material adverse impact”, “materiality” or other similar qualifications contained in such representations and no such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effect.warranties; (gc) Prior to or at the Closing, the Company shall have delivered in form and substance reasonably acceptable to Parent a certificate signed by an executive officer of the Chief Executive Officer of the Company, Company dated as of the Closing Date, to the effect certifying that the conditions specified in paragraphs (a) and (b) have been satisfied; and (d) since the date of this Section are satisfiedAgreement, no Company Material Adverse Effect shall have occurred and be continuing.

Conditions to the Obligations of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub to consummate and effect the Merger shall be is subject to the satisfaction satisfaction, or waiver by Parent, at or prior to the Closing Date of each Closing, of the following conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval shall have been obtained. (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made set forth in this Agreement (A) the first sentence of Section 4.01, (B) Section 4.02, (C) clauses (b), (d) and (e) of Section 4.05 and (D) Section 4.23 shall have been be true and correct as of in all material respects on the date of this Agreement hereof and on the Closing Date as of if made on the Closing Date (without giving effect to any qualifications or limitations as to “materiality” or “Company Material Adverse Effect” set forth therein), except as does not constitute a Company Material Adverse Effect, except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct in all material respects only as of such earlier date), (ii) Section 4.05(a) and (c) shall be true and correct (except for de minimis inaccuracies) in all respects on the date hereof and on the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct in all respects only as of such earlier date), and (iii) the other representations and warranties of the Company set forth in Article 4 of this Agreement shall be true and correct on the date hereof and on the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly relate to speaks as of an earlier time (date, in which casecase such representation and warranty shall be true and correct only as of such earlier date), except where the failure of such representations and warranties to be so true and correct (disregarding all qualifications or limitations as of such times does not constitute to “materiality,” “Company Material Adverse Effect).” or words of similar import) would not, individually or in the aggregate, have a Company Material Adverse Effect; (db) The the Company shall have performed or complied in all material respects with all agreements and covenants obligations required by this Agreement to be performed or complied with by it under this Agreement at or prior to the Closing Date.Closing; (ec) Prior to or at the Closing, Parent shall have received at the Closing a certificate, validly executed by the Secretary of the Company, certifying (i) as to the adoption of resolutions of the board of directors certificate signed on behalf of the Company whereby by the Chief Executive Officer or the Chief Financial Officer of the Company certifying that the conditions set forth in Section 7.02(a), Section 7.02(b) and Section 7.02(d) have been satisfied; and (d) since the date of this Agreement, the Merger there shall not have occurred and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation of such transaction or (iii) have, individually or in the aggregate, a continuing any Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effect. (g) Prior to or at the Closing, the Company shall have delivered in form and substance reasonably acceptable to Parent a certificate of the Chief Executive Officer of the Company, dated as of the Closing Date, to the effect that the conditions specified in this Section are satisfied.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger shall be are subject to the satisfaction (or the waiver by Parent) of the following conditions: (a) the Company shall have performed in all material respects all of its obligations under this Agreement required to be performed by it at or prior to the Closing Date of each of the following conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval shall have been obtained.Effective Time; (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made set forth in Sections 4.01, 4.02, 4.04(a), 4.26, 4.27 and 4.28 of this Agreement shall be true and correct in all material respects as of the date of this Agreement and at and as of the Effective Time (except to the extent any such representation or warranty expressly relates to an earlier date or period, in which case as of such date or period), (ii) the representations and warranties of the Company set forth in the first three sentences of Section 4.05, the first two sentences of Section 4.05(b) and the second sentence of Section 4.06(b) of this Agreement shall be true and correct, other than in de minimis respects, as of the date of this Agreement and at and as of the Effective Time (except to the extent any such representation or warranty expressly relates to an earlier date or period, in which case as of such date or period); (iii) the representation and warranty of the Company set forth in Section 4.10(b) of this Agreement shall be true and correct in all respects as of the date of this Agreement and at and as of the Effective Time; and (iv) the representations and warranties of the Company set forth in this Agreement (other than those referred to in the preceding clauses (i)-(iii)) shall have been be true and correct as of the date of this Agreement and at and as of the Closing Date Effective Time (without giving effect to any qualifications or limitations as to “materiality” or “Company Material Adverse Effect” set forth therein), except as does not constitute a Company Material Adverse Effect, except to the extent any such representations and warranties representation or warranty expressly relate relates to an earlier time (date or period, in which casecase as of such date or period), except where the failure of such representations and warranties to be so true and correct as of such times does has not constitute had a Company Material Adverse Effect). (d) The Company shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by it at or prior to the Closing Date. (e) Prior to or at the Closing, Parent shall have received a certificate, validly executed by the Secretary of the Company, certifying (i) as to the adoption of resolutions of the board of directors of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken)Effect that is continuing, and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall would not reasonably be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement expected to be rescinded following consummation of such transaction or (iii) have, individually or in the aggregate, a Company Material Adverse Effect, in the case of clauses (i), (ii), and no (iv) disregarding for this purpose all “Company Material Adverse Effect” and “materiality” qualifications contained in such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effect.representations and warranties; (gc) Prior since the date hereof, no event, occurrence, change, state of circumstances or facts has occurred or arisen, that, individually or in the aggregate with all other events, occurrences, changes, states of circumstances or facts occurring or arising since the date hereof, would reasonably be expected to or at the Closing, have a Company Material Adverse Effect; and (d) the Company shall have delivered in form and substance reasonably acceptable to Parent a certificate signed on behalf of the Chief Executive Officer Company by an executive officer of the Company, Company dated as of the Closing Date, to the effect Date certifying that the conditions specified in this Section are paragraphs (a), (b) and (c) have been satisfied.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger shall will be subject to the satisfaction or waiver at or prior to the Closing Date of each of the following conditions, any of which may be waived, in writing, waived exclusively by Parent and Merger SubParent: (a) The Required Shareholder Approval shall have been obtained. (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made set forth in this Agreement Section 5.2(b) (Company Subsidiaries) and Section 5.3(a) (Capitalization Structure) shall have been be true and correct in all respects, except for inaccuracies that are de minimis in amount, as of the Closing Date (except that those representations and warranties which address matters only as of a particular date need only be so true and correct as of such particular date), (ii) each of the date representations and warranties of this Agreement the Company contained in Section 5.1 (Organization, Standing and Power), Section 5.2(a) and (c) (Company Subsidiaries), Section 5.3(b), (c) and (d) (Capitalization Structure), Section 5.4 (Authority; Execution and Delivery; Enforceability), Section 5.5 (Requisite Stockholder Approval), Section 5.22 (Anti-Takeover Provisions), the first sentence of Section 5.28 (Brokers’ Fees and Expenses), and Section 5.29 (Opinion of Company Financial Advisor) shall be true and correct (without giving effect to any references to any “Company Material Adverse Effect” or other “materiality” qualifications) in all material respects as of the Closing Date as though made on and as of the Closing Date (except that those representations and warranties which address matters only as of a particular date need only be so true and correct as of such date), and (C) any other representations and warranties of the Company contained in Article V of this Agreement, other than those Sections specifically identified in clauses (i) and (ii) of this Section 8.2(a), shall be true and correct (without giving effect to any qualifications or limitations as references to “materiality” or any “Company Material Adverse Effect” set forth therein), or other “materiality” qualifications) as of the Closing Date as though made on and as of the Closing Date (except as does not constitute a Company Material Adverse Effect, except to the extent such that those representations and warranties expressly relate to an earlier time (in which case, where the failure address matters only as of such representations and warranties to a particular date need only be true and correct as of such times does not constitute date) except where failure to be so true and correct would not, individually or in the aggregate, have a Company Material Adverse Effect).; (db) The the Company shall have complied with or performed or complied in all material respects each covenant, agreement and obligation that the Company is required to comply with all agreements and covenants required by this Agreement or to be performed or complied with by it perform at or prior to the Closing Date.; (ec) Prior to or at the Closing, Parent shall have received a certificate, validly executed by the Secretary of the Company, certifying (i) as to the adoption of resolutions of the board of directors of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation of such transaction or (iii) have, individually or in the aggregate, a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effect. (g) Prior to or at the Closing, the Company shall have delivered in form and substance reasonably acceptable to Parent a certificate signed by an executive officer of the Chief Executive Officer of the Company, Company and dated as of the Closing Date, Date to the effect that the conditions specified in Section 8.2(a) and Section 8.2(b) have been satisfied; and (d) since the date of this Section are satisfiedAgreement, there has not occurred a Company Material Adverse Effect which is continuing as of the Closing Date.

Conditions to the Obligations of Parent and Merger Sub. The respective obligations of Parent and Merger Sub to consummate and effect the Merger shall be transactions contemplated by this Agreement are subject to the satisfaction fulfillment at or prior to the Closing Date Effective Time of each of the following additional conditions, any or all of which may be waived, waived in writing, exclusively whole or part by Parent and Merger Subto the extent permitted by applicable Law: (a) The Required Shareholder Approval shall have been obtained. (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made in this Agreement contained herein shall have been true in all respects when made and correct on and as of the date of this Agreement Closing Date as though made on and as of the Closing Date (without giving effect to any qualifications or limitations except for representations and warranties made as to “materiality” or “Company Material Adverse Effect” set forth thereinof a specified date, which shall speak only as of the specified date), except as does not constitute a Company Material Adverse Effect, except to the extent such representations and warranties expressly relate to an earlier time (in which case, where the failure of such representations and warranties to be true and correct as of such times does true, individually or in the aggregate, has not constitute Company had or is not reasonably expected to have a Material Adverse Effect)Effect on the Company and its Subsidiaries taken as a whole. (db) The Company shall have performed or complied in all material respects with all agreements and covenants contained herein required by this Agreement to be performed or complied with by it at or prior to or at the Closing Datetime of the Closing. (c) The Company shall have delivered to Parent a certificate, dated the date of the Closing, signed by the President of the Company (but without personal liability thereto), certifying as to the fulfillment of the conditions specified in Sections 8.2(a) and 8.2(b). (d) Parent shall have received an opinion from the Company’s tax counsel reasonably acceptable to Parent dated the Effective Time, to the effect that (i) the Merger will qualify as a reorganization within the meaning of Section 368(a) of the Code; and (ii) each of Parent, Merger Sub and the Company will be a party to the reorganization within the meaning of Section 368(b) of the Code. (e) Prior to or at the Closing, Parent shall have received a certificate, validly executed by the Secretary of an opinion from the Company, certifying (i) as ’s legal counsel reasonably acceptable to Parent dated the adoption of resolutions of the board of directors of the Company whereby this Agreement, the Merger and Effective Time in a form customary with respect to the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which or written consent via which such action was taken), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approvalhereby. (f) No litigation brought by All authorizations, consents or approvals of a Governmental Entity (other than those specified in Section 8.1(b)) required in connection with the execution and delivery of competent jurisdiction shall be pending that has a reasonable likelihood of success this Agreement and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation the performance of the transactions contemplated by this Agreementobligations hereunder shall have been made or obtained, (ii) cause the transactions contemplated by this Agreement without any limitation, restriction or condition that is reasonably expected to be rescinded following consummation of such transaction or (iii) have, individually or in the aggregate, have a Company Material Adverse EffectEffect on the Company and its Subsidiaries taken as a whole (or an effect on Parent and its Subsidiaries that, were such effect applied to the Company and no its Subsidiaries, would be reasonably expected to have a Material Adverse Effect on the Company), except for such judgmentauthorizations, orderconsents or approvals, decreethe failure of which to have been made or obtained is not reasonably expected to have a Material Adverse Effect on the Company and its Subsidiaries taken as a whole (or an effect on Parent and its Subsidiaries that, stipulation or injunction by any Governmental Entity of competent jurisdiction shall were such effect applied to the Company and its Subsidiaries, would be in effectreasonably expected to have a Material Adverse Effect on the Company). (g) Prior [Intentionally omitted.] (h) Parent and each of Xxxx Xxxx, Xxxxxx Xxxxxx and Xxxx Xxxxxx shall have entered into employment agreements in the form reasonably acceptable to or at Parent. (i) No more than two percent (2%) the Closing, stockholders of the Company shall have elected any appraisal rights or associated payments under Section 16-10a-1302 through 1331 of the URBCA. (j) Xxxxxx Xxxxx & Co. shall have delivered in form and substance reasonably acceptable a to Parent a certificate of an opinion to the Chief Executive Officer of the Companyeffect that, dated as of the Closing Datedate of such opinion, the Exchange Ratio is fair to the effect that the conditions specified in this Section are satisfiedstockholders of Parent from a financial point of view, and such opinion has not been withdrawn or modified.

Conditions to the Obligations of Parent and Merger Sub. The In addition to the conditions set forth in Section 7.1, the respective obligations of Parent and Merger Sub to consummate and effect the Merger shall be are subject to the satisfaction or (to the extent permitted by Law) waiver by Parent at or prior to the Merger Closing Date of each of the following further conditions, any of which may be waived, in writing, exclusively by Parent and Merger Sub: (a) The Required Shareholder Approval shall have been obtained. (b) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has each of the effect of prohibiting the Merger or making the Merger illegal. (c) The representations and warranties of the Company made set forth in Section 4.2(a), Section 4.2(b) (except to the extent such representations and warranties relate to PELSA or any of its Subsidiaries), Section 4.2(c)(i) and the first sentence of Section 4.2(c)(ii) (Capitalization; Subsidiaries), Section 4.3 (Authority Relative to Agreement), Section 4.4(c) (No Conflict; Required Filings and Consents), the first sentence of Section 4.9 (Absence of Certain Changes or Events), Section 4.23 (Antitakeover Statutes) and Section 4.24 (Brokers) shall be true and correct in all respects as of the date of this Agreement and the Merger Closing Date (as though made on and as of the Merger Closing Date), except, with respect Section 4.2(a), to the extent that any inaccuracies would be de minimis, in the aggregate; (ii) the representations and warranties of the Company set forth in Section 4.2(b) (but only to the extent such representations and warranties relate to PELSA or any of its Subsidiaries), in the third sentence of Section 4.2(c)(ii) (Capitalization; Subsidiaries) and Section 4.21 (Concessions), shall have been be true and correct in all material respects (without giving effect to any qualifications as to materiality or Material Adverse Effect or other similar qualifications contained therein) as of the date of this Agreement and the Merger Closing Date; and (iii) each of the other representations and warranties of the Company set forth in ARTICLE IV that (x) are not made as of a specific date shall be true and correct as of the date of this Agreement and the Merger Closing Date (as though made on and as of the Merger Closing Date (without giving effect to any qualifications or limitations as to “materiality” or “Company Material Adverse Effect” set forth thereinDate), except and (y) are made as does not constitute of a Company Material Adverse Effectspecific date shall be true and correct as of such date, except to except, in the extent such representations and warranties expressly relate to an earlier time case of this clause (in which caseiii), where the failure of such representations and warranties to be true and correct correct, without giving effect to any qualifications as of such times does to materiality or Material Adverse Effect or other similar qualifications contained therein, would not constitute Company have, individually or in the aggregate, a Material Adverse Effect).; (db) The the Company shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by it at on or prior to the Merger Closing Date.; (ec) Prior to or at since the Closing, Parent shall have received a certificate, validly executed by the Secretary date of the Company, certifying (i) as to the adoption of resolutions of the board of directors of the Company whereby this Agreement, the Merger and the transactions contemplated hereunder were approved by the board of directors (attaching a copy of the meeting minutes at which there shall not have occurred any change, event, effect or written consent via which such action was taken), and (ii) that the Required Shareholder Approval has been obtained and which attaches a copy of the notice of meeting, minutes and/or other documents evidencing receipt of the Required Shareholder Approval. (f) No litigation brought by a Governmental Entity of competent jurisdiction shall be pending that has a reasonable likelihood of success and wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation of such transaction or (iii) havecircumstance that, individually or in the aggregate, has had a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction by any Governmental Entity of competent jurisdiction shall be in effect.; (gd) Prior to or at the Closing, the Company shall have delivered in form and substance reasonably acceptable to Parent a certificate certificate, dated the Merger Closing Date and signed by an executive officer of the Chief Executive Officer Company certifying that the conditions set forth in Section 7.2(a), Section 7.2(b) and Section 7.2(c) shall have been satisfied; (e) all consents of the Company’s secured creditors required under the Companies Law have been made, dated as of the Closing Date, given or obtained on terms acceptable to the effect that Parent, acting reasonably; and (f) The transactions contemplated by the conditions specified in this Section are satisfiedTransaction Agreement have been consummated or will be consummated concurrently with the Merger Closing.