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 effect the Merger are subject to the satisfaction (or waiver by Parent in its sole discretion) of the following further conditions: (a) The representations and warranties of the Company set forth in this Agreement (without regard to materiality or Company Material Adverse Effect qualifiers contained therein), shall be true and correct at and as of the date of this Agreement and the Closing Date as if made at and as of such 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 as of such earlier date), except where the failure of the representations and warranties to be true and correct, individually or in the aggregate has not had and would not reasonably be expected to have a Company Material Adverse Effect; provided, that the representations and warranties set forth in Sections 3.1, 3.2 and 3.5 shall be true and correct in all material respects at and as of the date of this Agreement and the Closing Date as if made as of such date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoing. (b) The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoing. (c) There shall not have occurred any event, occurrence or change that has had, or would reasonably be expected to have, a Company Material Adverse Effect. (d) No Action shall be pending by a Governmental Entity (i) seeking to prevent consummation of the Merger, (ii) seeking to impose any limitation on the right of Parent to control the Company and its Subsidiaries or any other Affiliate of Parent, or (iii) seeking to restrain or prohibit the Company’s or Parent’s ownership or operation (or that of their respective Subsidiaries or Affiliates) of any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliates, or to compel the Company or Parent or any of their respective Subsidiaries or Affiliates to dispose of or hold separate any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliates.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger are transactions contemplated by this Agreement shall be subject to the satisfaction (fulfillment or waiver by Parent in its sole discretion) Parent’s waiver, at or prior to the Closing, of each of the following further conditions: (a) The Each of the other representations and warranties of the Company set forth contained in this Agreement (without regard to materiality or Company Material Adverse Effect qualifiers contained therein), Article III shall be true and correct at and in all material respects as of the date of this Agreement and the Closing Date with the same effect as if though made at and as of such date (except to the extent that such those representations and warranties refer specifically to an earlier that address matters only as of a specified date, in which case such representations and warranties shall have been be true and correct in all respects as of such earlier that specified date), except where the failure of the such representations and warranties to be true and correct, individually or in the aggregate has not had and correct would not reasonably be expected to have a Company Material Adverse Effect; provided, that the representations and warranties set forth in Sections 3.1, 3.2 and 3.5 shall be true and correct in all material respects at and as of the date of this Agreement and the Closing Date as if made as of such date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoing. (b) The Company shall have performed and complied in all material respects with all obligations agreements, covenants and conditions required by this Agreement and each of the Ancillary Agreements to be performed or complied with by it under this Agreement at or the Company prior to or on the Closing Date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoing. (c) There From the date of this Agreement, there shall not have occurred any eventCompany Material Adverse Effect, occurrence nor shall any event or change that has hadevents have occurred that, individually or would in the aggregate, with or without the lapse of time, could reasonably be expected to have, result in a Company Material Adverse Effect. (d) No Action Governmental Order shall be pending by a Governmental Entity (i) seeking in effect which restrains, hinders or prohibits or threatens to prevent restrain, hinder or prohibit the consummation of the Mergertransactions contemplated by this Agreement; and there shall not have been threatened, nor shall there be pending, any Action by a Person or before any Governmental Authority which is reasonably likely to restrain, hinder, prohibit, delay or challenge the validity of any of the transactions contemplated by this Agreement. (iie) seeking The Company shall have delivered to impose any limitation on Parent duly executed counterparts to the right Ancillary Agreements and such other documents and deliverables set forth in Section 2.11. (f) Holders of Parent no more than two percent (2.00%) of the outstanding Company Capital Stock as of immediately prior to control the Company and its Subsidiaries or any other Affiliate of ParentEffective Time, in the aggregate, shall have exercised, or (iii) seeking remain entitled to restrain or prohibit the Company’s or Parent’s ownership or operation (or that of their respective Subsidiaries or Affiliates) of any portion exercise, statutory appraisal rights pursuant to Section 262 of the business or assets DGCL with respect to such shares of the Company or Parent or any of their respective Subsidiaries or Affiliates, or to compel the Company or Parent or any of their respective Subsidiaries or Affiliates to dispose of or hold separate any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or AffiliatesCapital Stock.

Conditions to the Obligations of Parent and Merger Sub. The obligations respective obligation of Parent and Merger Sub to effect the Merger are is subject to the satisfaction (or waiver by Parent in its sole discretion) on or prior to the Closing Date of the following further conditions: (a) (A) The representations and warranties of the Company set forth in this Agreement Article II (without regard to materiality or Company Material Adverse Effect qualifiers contained thereinother than those set forth in Sections 2.01, 2.02(a)–(d), 2.04, 2.08(a), 2.19, and 2.20) shall be true and correct at and as of the date of this Agreement and as of the Closing Date as if though made at on and as of such date (date, except to the extent any such representation and warranty expressly relates to a specified date (in which case on and as of such specified date), other than for such failures to be true and correct that would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect (for purposes of determining the satisfaction of this condition, without regard to any qualifications or exceptions contained therein as to “materiality” or “Company Material Adverse Effect,” it being agreed that with respect to any representation or warranty with respect to which effects resulting from or arising in connection with the matters set forth in clause (G) of the definition of the term “Company Material Adverse Effect” are not excluded in determining whether a Company Material Adverse Effect has occurred or would reasonably be expected to occur, such effect shall similarly not be excluded for purposes of this clause (A)), (B) the representations and warranties refer specifically to an earlier of the Company set forth in Sections 2.01, 2.04, 2.19 and 2.20 shall 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 to the extent any such representation and warranty expressly relates to a specified date (in which case on and as of such representations specified date), (C) the representation and warranties warranty of the Company set forth in Section 2.02(a)–(d) 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 such earlier date, except to the extent any such representation and warranty expressly relates to a specified date (in which case on and as of such specified date), except where the failure of the any such representations and warranties to be true and correct, would not, individually or in the aggregate has not had and would not aggregate, be reasonably be expected to have a Company Material Adverse Effect; providedresult in additional net cost, that expense or liability to the Company, Parent, Merger Sub or their respective affiliates of $15,000,000 or more, and (D) the representations and warranties of the Company set forth in Sections 3.1, 3.2 and 3.5 Section 2.08(a) shall be true and correct in all material respects at and as of the date of this Agreement and as of the Closing Date as if though made on and as of such date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company , except to the effect extent any such representation and warranty expressly relates to a specified date (in which case on and as of the foregoingsuch specified date). (b) The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoing. (c) There shall not have occurred any event, occurrence or change that has had, or would reasonably be expected to have, a Company Material Adverse Effect. (d) No Action shall be pending by a Governmental Entity (i) seeking to prevent consummation of the Merger, (ii) seeking to impose any limitation on the right of Parent to control the Company and its Subsidiaries or any other Affiliate of Parent, or (iii) seeking to restrain or prohibit the Company’s or Parent’s ownership or operation (or that of their respective Subsidiaries or Affiliates) of any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliates, or to compel the Company or Parent or any of their respective Subsidiaries or Affiliates to dispose of or hold separate any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliates.

Conditions to the Obligations of Parent and Merger Sub. The respective obligations of Parent and Merger Sub to effect consummate the Merger are subject to the satisfaction or (or to the extent permitted by Law) waiver by Parent in its sole discretion) at or prior to the Effective Time of the following further conditions: (a) The each of the representations and warranties of the Company set forth contained in this Agreement (Agreement, without regard giving effect to any materiality or “Company Material Adverse Effect qualifiers contained Effect” qualifications therein), shall be true and correct at as of the date hereof and as of the date of this Agreement and the Closing Date as if though made at and on or as of such date date, except for (except to the extent that i) any such representations representation and warranties refer specifically to warranty expressly speaking as of an earlier date, in which case such representations representation and warranties warranty shall have been be true and correct as of such earlier date), except where the failure and (ii) such failures of the such representations and warranties to be true and correct, individually or in the aggregate correct (as of any date) has not had and would not reasonably be expected to have have, individually or in the aggregate, a Company Material Adverse Effect; provided, that Effect as of the representations and warranties set forth in Sections 3.1, 3.2 and 3.5 Effective Time with the same effect as though made as of the Effective Time; (b) the Company shall be true and correct have performed or complied in all material respects at with all agreements and as of the date of covenants required by this Agreement and to be performed or complied with by it on or prior to the Closing Date as if made as of such date. Parent Effective Time; (c) the Company shall have received delivered to Parent a certificate certificate, dated the Closing Date Effective Time and signed by its chief executive officer or another senior officer on behalf of the Company by the chief executive officer or the chief financial officer Company, certifying to such officer’s knowledge on behalf of the Company to the effect of that the foregoing.conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied; and (bd) The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to since the Closing Date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoing. (c) There date hereof, there shall not have occurred been any eventeffect, change, event or occurrence or change that has had, had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. (d) No Action shall be pending by a Governmental Entity (i) seeking to prevent consummation of the Merger, (ii) seeking to impose any limitation on the right of Parent to control the Company and its Subsidiaries or any other Affiliate of Parent, or (iii) seeking to restrain or prohibit the Company’s or Parent’s ownership or operation (or that of their respective Subsidiaries or Affiliates) of any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliates, or to compel the Company or Parent or any of their respective Subsidiaries or Affiliates to dispose of or hold separate any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliates.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger are subject to the satisfaction (or waiver by Parent in its sole discretionor, to the extent legally permissible, waiver) of the following further conditions: (a) The the Company shall have performed in all material respects all of its obligations and covenants hereunder required to be performed by it at or prior to the Effective Time, (ii) the representations and warranties of the Company set forth contained in this Agreement (without regard to materiality or Company Material Adverse Effect qualifiers contained therein), shall be true and correct at and in all material respects as of the date of this Agreement and the Closing Date with the same force and effect as if made at and as of such date on the Closing Date except (except to the extent that such y) those representations and warranties refer specifically to an earlier date, in which case such representations and warranties that address matters only as of a particular date shall have been remain true and correct as of such earlier date), except where date and (z) (other than those in Section 4.2 of this Agreement) to the extent that failure of the representations and warranties to be so true and correctcorrect could not reasonably be expected, individually or in the aggregate has not had aggregate, to have a Material Adverse Effect and (iii) Parent shall have received a certificate signed by the chief executive officer of the Company to the foregoing effect; (b) the Company shall have received all consents, waivers and approvals required in connection with the consummation of the transactions contemplated hereby in connection with the agreements, contracts, licenses or leases set forth in Section 4.5 of the Company Disclosure Schedule, except those consents, waivers or approvals the failure to obtain would not not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect; provided, that Effect on the representations and warranties set forth in Sections 3.1, 3.2 and 3.5 shall be true and correct in all material respects at and as of the date of this Agreement and the Closing Date as if made as of such date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoing. (b) The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoing.Company; (c) There there shall not have occurred any event, occurrence or change that has had, or would reasonably be expected to have, a Company Material Adverse Effect. (d) No Action shall be pending by a Governmental Entity any suit, proceeding or investigation: (i) seeking to prevent consummation of the Merger, (ii) seeking to impose any limitation on the right of Parent to control the Company and its Subsidiaries challenging or any other Affiliate of Parent, or (iii) seeking to restrain or prohibit the Company’s or Parent’s ownership or operation (or that of their respective Subsidiaries or Affiliates) of any portion consummation of the business Merger or assets any of the other transactions contemplated by this Agreement; (ii) relating to the Merger and seeking to obtain from Parent, the Company or Parent or any of their respective Subsidiaries any damages that may be material to Parent or Affiliatesthe Company, as applicable; (iii) seeking to prohibit or limit in any material respect Parent’s ability to compel vote, receive dividends with respect to or otherwise exercise ownership rights with respect to the stock of the Surviving Corporation; or (iv) which, if adversely determined could have a Material Adverse Effect on the Company or Parent Parent; (d) there shall have not occurred any event or any of their respective Subsidiaries or Affiliates to dispose of or hold separate any portion change since the date of the business Agreement that has had or assets could reasonably be expected to have a Material Adverse Effect on the Company and its Subsidiaries, taken as a whole; and (e) Dissenting Shares shall comprise no more than fifteen percent (15%) of the issued and outstanding Company or Parent or any of their respective Subsidiaries or AffiliatesShares.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger under this Agreement are subject to the satisfaction (satisfaction, at or waiver by Parent in its sole discretion) before the Closing, of each of the following further conditions: (a) During the period from the date of this Agreement to the Closing Date, there shall not have occurred a Material Adverse Effect on the Company or its business. (b) The representations and warranties of the Company set forth in this Agreement (without regard contained herein that are qualified as to materiality or Company Material Adverse Effect qualifiers contained therein), shall be true and correct at in all respects on and as of the date of this Agreement and the Closing Date with the same force and effect as if though made at on and as of such 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 as of such earlier date), except where the failure each of the representations and warranties to be true and correct, individually or in of the aggregate has Company that are not had and would not reasonably be expected to have a Company Material Adverse Effect; provided, that the representations and warranties set forth in Sections 3.1, 3.2 and 3.5 so qualified shall be true and correct in all material respects at and as of the date of this Agreement and the Closing Date as if made as of such date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoingrespects. (bc) The Company shall have performed and complied in all material respects with all covenants, agreements, obligations and conditions required by this Agreement to be performed or complied with by it under this Agreement the Company at or prior to the Closing Date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoing. (c) There shall not have occurred any event, occurrence or change that has had, or would reasonably be expected to have, a Company Material Adverse EffectClosing. (d) No Action There shall not be threatened, instituted or pending any Proceeding by a or before any court or Governmental Entity Authority requesting or looking toward an Order that (ia) seeking to prevent restrains or prohibits the consummation of the Merger, (b) could have a Material Adverse Effect on Parent’s ability to exercise control over or manage the Company after the Closing or (c) could have a Material Adverse Effect on the Company. (e) On the Closing Date, there shall be no effective Order issued by a court of competent jurisdiction restraining or prohibiting the consummation of the Merger. (f) The Company shall have delivered to Parent a certificate, dated the Closing Date, executed by a duly authorized Member certifying the fulfillment of the conditions specified in Sections 7.02(a), (b) and (c). (g) The Company shall have delivered to Parent and Merger Sub a certificate, dated the Closing Date, executed by a duly authorized Member, certifying as to (i) its Organizational Documents, (ii) seeking resolutions with respect to impose any limitation on the right of Parent to control the Company Merger adopted by its Members attached thereto, and its Subsidiaries or any other Affiliate of Parent, or (iii) seeking resolutions with respect to restrain or prohibit the Company’s or Parent’s ownership or operation (or that of their respective Subsidiaries or Affiliates) of any portion authorization of the business or assets Note, and (iii) incumbency and signatures of the persons who have executed this Agreement and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this Agreement. (h) All documents to be delivered by the Company to Parent and Merger Sub at the Closing shall be reasonably satisfactory in form and substance to Parent and Merger Sub. (i) All Consents of all Third Parties and Governmental Authorities shall have been obtained that are necessary, in the opinion of Parent counsel, in connection with (a) the execution and delivery by the Company or Parent or any of their respective Subsidiaries or Affiliates, or to compel (b) the consummation by the Company or Parent or any of their respective Subsidiaries or Affiliates to dispose of or hold separate any portion of the business or assets Merger, and copies of the Company or Parent or any of their respective Subsidiaries or Affiliatesall such Consents shall have been delivered to Parent.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger are also subject to the satisfaction (or waiver by Parent in its sole discretion) on or prior to the Closing Date of the following further conditions: (a) The (i) the representations and warranties of the Company set forth contained in this Agreement Sections 2.1 (without regard to materiality or Company Material Adverse Effect qualifiers contained thereinOrganization and Qualification; Subsidiaries), shall be true 2.2 (Charter and correct at and as of the date of this Agreement and the Closing Date as if made at and as of such 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 as of such earlier dateBylaws), except where the failure of the representations 2.3 (Capitalization), 2.4(a) (Authority), 2.24 (Takeover Provisions) and warranties to be true and correct, individually or in the aggregate has not had and would not reasonably be expected to have a Company Material Adverse Effect; provided, that the representations and warranties set forth in Sections 3.1, 3.2 and 3.5 2.25 (Rights Agreement) shall be true and correct in all material respects at (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 if though made on or as of the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such earlier date. Parent ) and (ii) the representations and warranties of the Company in this Agreement other than those specified in the preceding clause (i) shall have received a certificate dated be true and correct as of the date of this Agreement and as of the Closing Date signed as though made on behalf or as of the Company by the chief executive officer or the chief financial officer of the Company Closing Date (except to the extent expressly made as of an earlier date, in which case as of such earlier date), in each case except where the failure of any such representations and warranties to be so true and correct (without giving effect of to any qualification as to materiality or a Company Material Adverse Effect) would not, individually or in the foregoing.aggregate, have a Company Material Adverse Effect; (b) The Company shall have performed in all material respects all obligations of its covenants required to be performed by it under this Agreement at or prior to the Closing Date. ; (c) Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief an executive officer or the chief financial officer of the Company to the effect that the conditions in clauses (a) and (b) above have been so satisfied; (d) The number of Dissenting Shares shall not exceed 50% of the foregoing.outstanding shares of the Company Common Stock immediately prior to the Effective Time; (ce) There Parent shall have received an opinion (reasonably acceptable in form and substance to Parent) from Xxxxxxx Xxxxx LLP, dated as of the Closing Date, to the effect that for federal income tax purposes (i) the Merger will be treated as a reorganization within the meaning of Section 368(a) of the Code and (ii) each of Parent and the Company will be a party to such reorganization within the meaning of Section 368(b) of the Code, and such opinion shall not have been withdrawn, revoked or modified. Such opinion will be based upon representations of the Parties contained in this Agreement and in the tax representation letters described in Section 5.13; and (f) From the date of this Agreement through the Closing, there shall not have occurred any event, occurrence condition, state of facts or change development that has had, individually or would reasonably be expected to havein the aggregate, a Company Material Adverse Effect, the effects of which are continuing at the Effective Time. (d) No Action shall be pending by a Governmental Entity (i) seeking to prevent consummation of the Merger, (ii) seeking to impose any limitation on the right of Parent to control the Company and its Subsidiaries or any other Affiliate of Parent, or (iii) seeking to restrain or prohibit the Company’s or Parent’s ownership or operation (or that of their respective Subsidiaries or Affiliates) of any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliates, or to compel the Company or Parent or any of their respective Subsidiaries or Affiliates to dispose of or hold separate any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliates.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger under this Agreement are subject to the satisfaction (satisfaction, at or waiver by Parent in its sole discretion) before the Closing, of each of the following further conditions: (a) The representations and warranties of the Company set forth in this Agreement (without regard BBT contained herein that are qualified as to materiality or Company Material Adverse Effect qualifiers contained therein), shall be true and correct at in all respects on and as of the date of this Agreement and the Closing Date (except for the representations and warranties made as if of a specific date which shall be true in all material respects as of such date) with the same force and effect as though made at on and as of such 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 as of such earlier date), except where the failure each of the representations and warranties to be true and correct, individually or in the aggregate has of BBT that are not had and would not reasonably be expected to have a Company Material Adverse Effect; provided, that the representations and warranties set forth in Sections 3.1, 3.2 and 3.5 so qualified shall be true and correct in all material respects at and as of the date of this Agreement and the Closing Date as if made as of such date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoingrespects. (b) The Company BBT shall have performed and complied in all material respects with all covenants, agreements, obligations and conditions required by this Agreement to be performed or complied with by it under this Agreement BBT at or prior to the Closing Date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoingClosing. (c) There shall not have occurred be threatened, instituted or pending any eventsuit, occurrence action, investigation, inquiry or change other proceeding by or before any court or governmental or other regulatory or administrative agency or commission requesting or looking toward an order, judgment or decree that has had(a) restrains or prohibits the consummation of the transactions contemplated hereby, or would (b) could reasonably be expected to have, have a Company Material Adverse Effectmaterial adverse effect on Parent's ability to exercise control over or manage BBT after the Closing or (c) could reasonably be expected to have a material adverse effect on the Business or BBT. (d) No Action On the Closing Date, there shall be pending no effective injunction, writ, preliminary restraining order or other order issued by a Governmental Entity court of competent jurisdiction restraining or prohibiting the consummation of the transactions contemplated hereby. (e) BBT shall have delivered to Parent a certificate, dated the Closing Date, executed by the Secretary of BBT, certifying as to (a) BBT's certificate of incorporation, (b) BBT's by-laws, (c) resolutions with respect to the transactions contemplated by this Agreement adopted by BBT's board of directors and shareholders and attached to such certificate, and (d) incumbency and signatures of the persons who have executed this Agreement, the Related Agreements and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this Agreement or any of the Related Agreements on behalf of BBT. (f) Each of Xxxx Xxxxxxx and Xxxxxx Xxxxxxxxx shall have entered into an employment agreement with the Surviving Corporation (collectively, the "EMPLOYMENT AGREEMENTS"), substantially in the form of EXHIBIT B. (g) Each of Xxxx Xxxxxxx and Xxxxxx Xxxxxxxxx shall have entered into a lock-up agreement with Parent (collectively, the "LOCK-UP AGREEMENTS"), substantially in the form of EXHIBIT C. (h) BBT shall have furnished Parent with copies of the Ownership and Nondisclosure Agreements signed by each employee, officer, consultant or contractor of BBT identified on SCHEDULE 4.16(G). (i) seeking to prevent consummation of Parent shall have received stock certificates representing the Merger, Shares. (iij) seeking to impose any limitation on the right of Parent to control the Company and its Subsidiaries or any other Affiliate of Parent, or (iii) seeking to restrain or prohibit the Company’s or Parent’s ownership or operation (or that of their respective Subsidiaries or Affiliates) of any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliates, or to compel the Company or Parent or any of their respective Subsidiaries or Affiliates to dispose of or hold separate any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or AffiliatesNo material adverse change affecting BBT shall have occurred.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger are subject to the satisfaction of the following further conditions (any one of which may be waived in whole or waiver part by Parent in its sole discretion) of discretion by giving written notice to the following further conditions:Company in compliance with Section 10.1 hereof): (a) The representations and warranties of (i) the Company set forth in this Agreement (without regard shall have performed all of its material obligations hereunder required to materiality be performed by it at or Company Material Adverse Effect qualifiers contained therein), shall be true and correct at and as of the date of this Agreement and the Closing Date as if made at and as of such date (except prior to the extent that such representations Effective Time; and warranties refer specifically to an earlier date, in which case such representations and warranties shall have been true and correct as of such earlier date), except where the failure of the representations and warranties to be true and correct, individually or in the aggregate has not had and would not reasonably be expected to have a Company Material Adverse Effect; provided, that the representations and warranties set forth in Sections 3.1, 3.2 and 3.5 shall be true and correct in all material respects at and as of the date of this Agreement and the Closing Date as if made as of such date. (ii) Parent shall have received a certificate dated as of the Closing Date and signed on behalf of the Company by the chief executive officer Company’s President or the chief financial officer of the Company Chief Executive Officer, certifying to the effect of the foregoing.foregoing effect; (b) The (i) each of the representations and warranties of the Company contained in this Agreement shall have been true and correct (without regard to any qualifications to such representations and warranties as to materiality, Material Adverse Effect of similar expressions) at the time originally made (as qualified by the Company Disclosure Schedule) and the representations and warranties made as of the Agreement Date shall be true and correct as of the Effective Time (as qualified by the Company Disclosure Schedule delivered on the Agreement Date), except for breaches of such representations and warranties that, individually or in the aggregate, would not and could not reasonably be expected to result in a Material Adverse Effect; and (ii) the Company shall deliver to Parent at the Closing a certificate, dated as of the date of the Closing and signed by the Company’s President or Chief Executive Officer, certifying to that effect; (c) no Material Adverse Effect with respect to the Company shall have performed occurred or been discovered by Parent since the Agreement Date; (d) no injunction or other decree shall have been issued by any court of competent jurisdiction prohibiting the sale of the Company Products by the Company or Parent on the basis of any rights held by a third party (including without limitation any rights of any third party in all material respects all obligations any Intellectual Property); (e) Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx will have issued a legal opinion addressed to Parent in the form attached hereto as Exhibit E; (f) the Company shall have delivered a properly executed statement, dated as of the Closing Date, in a form reasonably acceptable to Parent conforming to the requirements of Treasury Regulation Section 1.1445-2(c)(3); (g) the Company shall have delivered to Parent and Merger Sub a certificate that sets forth (i) the information required to be performed by it under this Agreement at or set forth on Section 3.2 of the Company Disclosure Schedule, updated to reflect capitalization as of immediately prior to the Effective Time (giving effect to any conversion of shares of Company Preferred Stock to Company Common Stock that is made contingent upon the Closing), (ii) the Fully-Diluted Common Stock Number and the calculation thereof, and (iii) the aggregate exercise price for all Company Options and Company Warrants outstanding as of the Agreement Date (the “Capitalization Certificate”), which Capitalization Certificate shall be deemed to be representations and warranties of the Company hereunder; (h) the Company shall have obtained those consents or approvals with respect to the consummation of the Merger of each person listed on Schedule 7.2(h); (i) any and all rights, warrants, options or other instruments or rights to purchase shares of Company Common Stock or Company Preferred Stock (other than Company Options and Company Warrants, which shall be converted into the right to receive a portion of the Closing Date. Payment Amount in accordance with Section 2.1) outstanding immediately prior to the Closing, whether or not exercisable, whether or not vested, and whether or not performance based, shall have been exercised or terminated (j) holders of no more than 5.0% 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 have elected to, or continue to have contingent rights to, exercise dissenters’, appraisal or similar rights under California Law with respect to such shares; and (k) the Company shall have delivered a certification to Parent, in form and substance (other than with respect to any amounts set forth thereon) satisfactory to Parent, setting forth the maximum amount of fees and expenses that each professional advisor engaged by the Company or its Board of Directors in connection with this Agreement or the Company’s efforts to consummate an initial public offering of the Company Common Stock, consisting of Xxxxx Xxxxxxx, Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx and Xxxxx & Xxxxx, xxxx charge with respect to the transactions contemplated hereby or the Company’s efforts to consummate an initial public offering of the Company Common Stock (regardless of whether or not such fees and expenses have been billed to, or collected from, the Company) (each a “Transaction Cost Certificate”), and Parent shall have received such written assurances with respect to such amounts from Xxxxx Xxxxxxx and Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx as it shall reasonably request; and (l) each holder of Company Warrants shall have executed and delivered a certificate dated the Closing Date signed on behalf of amendment, in form and substance reasonably satisfactory to Parent, to the Company Warrants held by such holder acknowledging such holder will receive the chief executive officer or the chief financial officer of the Company to the effect of the foregoing. (c) There shall not have occurred any event, occurrence or change that has had, or would reasonably be expected to have, a Company Material Adverse Effect. (d) No Action shall be pending by a Governmental Entity (i) seeking to prevent consummation of the Merger, (ii) seeking to impose any limitation on the right of Parent to control the Company and its Subsidiaries or any other Affiliate of Parent, or (iii) seeking to restrain or prohibit the Company’s or Parent’s ownership or operation (or that of their respective Subsidiaries or Affiliates) of any portion of the business or assets of Closing Payment Amount calculated pursuant Section 2.1(c)(ii) in exchange for such Company Warrants; or, alternatively, for any holders who have not delivered such amendment, the Company or Parent or any of their respective Subsidiaries or Affiliates, or to compel Warrants held by such holders shall terminate no later than the Company or Parent or any of their respective Subsidiaries or Affiliates to dispose of or hold separate any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or AffiliatesEffective Time.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger are subject to the satisfaction (or waiver by Parent in its sole discretion) Parent, if permissible under Applicable Law), at or prior to the Closing, of the following further conditions: (a) The Representations and Warranties. (i) Other than the representations and warranties listed in Section 8.02(a)(ii) and Section 8.02(a)(iii), the representations and warranties of the Company set forth in this Agreement will be true and correct (without regard giving effect to any materiality or Company Material Adverse Effect qualifiers contained qualifications set forth therein), shall be true and correct at and ) as of the date hereof and as of this Agreement and the Closing Date as if made at and as of such date the Closing Date (except to the extent that any such representations representation and warranties refer specifically to warranty expressly speaks as of an earlier date, in which case such representations representation and warranties shall have been warranty will be true and correct as of such earlier date), except where the failure of the representations and warranties for such failures to be true and correctcorrect that have not had, individually or in the aggregate has not had and would not reasonably be expected to have a Company Material Adverse Effect; providedhave, that individually or in the representations and warranties set forth in Sections 3.1, 3.2 and 3.5 shall be true and correct in all material respects at and as of the date of this Agreement and the Closing Date as if made as of such date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoing. (b) The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoing. (c) There shall not have occurred any event, occurrence or change that has had, or would reasonably be expected to haveaggregate, a Company Material Adverse Effect. (dii) No Action shall The representations and warranties set forth in Section 4.01(a), Section 4.02, the last sentence of Section 4.05(a) and Section 4.22 that (A) are not qualified by Company Material Adverse Effect or other materiality qualifications will be pending by a Governmental Entity (i) seeking to prevent consummation true and correct in all material respects as of the Mergerdate 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 will be true and correct in all material respects as of such earlier date); and (iiB) seeking are qualified by Company Material Adverse Effect or other materiality qualifications will be true and correct in all respects (without disregarding such Company Material Adverse Effect or other materiality qualifications) as of the Closing Date as if made at and as of the Closing Date (except to impose the extent that any limitation on the right such representation and warranty expressly speaks as of Parent to control the Company an earlier date, in which case such representation and its Subsidiaries or any other Affiliate warranty will be true and correct in all respects as of Parent, or such earlier date). (iii) seeking to restrain or prohibit The representations and warranties set forth in the Company’s or Parent’s ownership or operation (or that first sentence of their respective Subsidiaries or AffiliatesSection 4.05(a), the first sentence of Section 4.05(b) and the first sentence of any portion Section 4.05(c) will be true and correct in all respects as of the business or assets date hereof and as of the Company or Parent or Closing Date (except to the extent that any such representation and warranty expressly speaks as of their respective Subsidiaries or Affiliatesan earlier date, or to compel the Company or Parent or in which case such representation and warranty will be true and correct as of such earlier date), except for any of their respective Subsidiaries or Affiliates to dispose of or hold separate any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliatesinaccuracies that are de minimis in nature and amount.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger under this Agreement are subject to the satisfaction (satisfaction, at or waiver by Parent in its sole discretion) before the Closing, of each of the following further conditions: (a) The representations and warranties of the Company set forth in this Agreement (without regard United, Promark and a Majority of United Stockholders contained herein that are qualified as to materiality or Company Material Adverse Effect qualifiers contained therein), shall be true and correct at in all respects on and as of the date of this Agreement and the Closing Date with the same force and effect as if though made at on and as of such 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 as of such earlier date), except where the failure each of the representations and warranties to be true of United, Promark and correct, individually or in the aggregate has a Majority of United Stockholders that are not had and would not reasonably be expected to have a Company Material Adverse Effect; provided, that the representations and warranties set forth in Sections 3.1, 3.2 and 3.5 so qualified shall be true and correct in all material respects at and as of the date of this Agreement and the Closing Date as if made as of such date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoingrespects. (b) The Company United, Promark and a Majority of United Stockholders shall have performed and complied in all material respects with all covenants, agreements, obligations and conditions required by this Agreement to be performed or complied with by it under this Agreement United, Promark and a Majority of United Stockholders at or prior to the Closing Date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoingClosing. (c) There shall not have occurred be threatened, instituted or pending any event, occurrence Proceeding by or change before any court or Governmental Body requesting or looking toward an Order that has had, (a) restrains or would reasonably be expected to have, a Company Material Adverse Effect. (d) No Action shall be pending by a Governmental Entity (i) seeking to prevent prohibits the consummation of the Merger, (b) could have a Material Adverse Effect on Parent’s ability to exercise control over or manage United and Promark after the Closing or (c) could have a Material Adverse Effect on United or Promark. (d) On the Closing Date, there shall be no effective Order issued by a court of competent jurisdiction restraining or prohibiting the consummation of the Merger. (e) United, Promark and a Majority of United Stockholders shall have delivered to Parent a certificate, dated the Closing Date, executed by a duly authorized officer of United and Promark and by each of said United Stockholders certifying the fulfillment of the conditions specified in Sections 10.2(a), (b) and (c). (f) United shall have delivered to Parent a certificate, dated the Closing Date, executed by the Secretary of United, certifying as to (i) United’s Governing Documents, (ii) seeking resolutions with respect to impose any limitation on the right Merger adopted by United’s board of Parent to control the Company directors and its Subsidiaries or any other Affiliate of Parentshareholders attached thereto, or and (iii) seeking to restrain or prohibit the Company’s or Parent’s ownership or operation (or that of their respective Subsidiaries or Affiliates) of any portion incumbency and signatures of the business persons who have executed this Agreement and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this Agreement. (g) All documents to be delivered by United and to be delivered by the United Stockholders to Parent at the Closing shall be satisfactory in form and substance to Parent. (h) All Consents of all Third Parties and Governmental Bodies shall have been obtained that are necessary, in the opinion of Parent counsel, in connection with (a) the execution and delivery by United, Promark and the United Stockholders of this Agreement or assets (b) the consummation by United and the United Stockholders of the Company or Parent or any Merger, and copies of their respective Subsidiaries or Affiliates, or all such Consents shall have been delivered to compel Parent. (i) Escrow Agent and the Company or Parent or any of their respective Subsidiaries or Affiliates to dispose of or hold separate any portion United Stockholders shall have executed and delivered triplicate originals of the business or assets of Escrow Agreement to Parent. (j) The United Stockholders shall have delivered the Company or Certificates and the United Optionholders shall have delivered the United Option Letters to the Escrow Agent. (k) Parent or any of their respective Subsidiaries or Affiliatesshall have completed the Merger Financing and received the proceeds thereof to enable Parent to deliver the Merger Consideration to the Escrow Agent.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger are subject to the satisfaction (or or, to the extent permitted by Applicable Law, waiver by Parent in its sole discretionParent) of the following further conditions: (a) The (i) each of the Company and SpinCo shall have performed in all material respects all of its obligations hereunder required to be performed by it prior to the Effective Time, (ii) (A) the representations and warranties of the Company set forth contained in this Agreement Section 4.01(a), Section 4.02, Section 4.05 and Section 4.21 (without regard to materiality or Company disregarding all materiality, Tiger Material Adverse Effect qualifiers and similar qualifications contained therein), ) shall be true and correct in all material respects at and as of the date of this Agreement and the Closing Date Effective Time as if made at and as of such date time (except to the extent that other than such representations and warranties refer specifically to an earlier datethat by their terms address matters only as of another specified time, which shall be true in which case all material respects only as of such time) and (B) the other representations and warranties in Article 4 (disregarding all materiality, Tiger Material Adverse Effect and similar qualifications contained therein) shall have been be true at and correct as of the Effective Time as if made at and as of such earlier date), except where the failure of the time (other than representations and warranties to that by their terms address matters only as of another specified time, which shall be true and correctonly as of such time), individually or with, in the aggregate has case of this clause (B) only, only such exceptions as have not had and would not reasonably be expected to have have, individually or in the aggregate, a Company Tiger Material Adverse Effect; provided, that the representations and warranties set forth in Sections 3.1, 3.2 and 3.5 shall be true and correct in all material respects at and as of the date of this Agreement and the Closing Date as if made as of such date. (iii) Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief an executive officer or the chief financial officer of the Company to the effect of the foregoing.foregoing effect; (b) The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date. Parent shall have received a certificate dated (i) the Closing Date signed on behalf Parent Merger Tax Opinion from Parent Tax Counsel or an Alternative Tax Counsel, which opinion shall not have been withdrawn or modified in any material respect, and (ii) copies of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoing.RMT Tax Opinions; (c) There The Company and SpinCo (or a Subsidiary thereof) shall have entered into each applicable Ancillary Agreement and each such agreement shall be in full force and effect; (d) since the date of this Agreement, there shall not have occurred any event, change, effect, development or occurrence or change that has had, had or would reasonably be expected to have, individually or in the aggregate, a Company Tiger Material Adverse Effect.; and (de) No Action shall be pending by a Governmental Entity (i) seeking The Company shall have delivered to prevent consummation of Parent the Merger, Initial Audited Financial Statements and (ii) seeking the Initial Audited Financial Statements shall not differ from the applicable Tiger Unaudited Financial Statements in a manner that is material to impose the intrinsic value (determined in a manner consistent with appropriate valuation methodologies) of the Tiger Business in a manner that is adverse (excluding any limitation differences resulting from (x) any changes in the amount of goodwill or intangible assets and (y) the matters described on Section 9.02(e) of the SpinCo Disclosure Schedule); provided that Parent shall be deemed to have irrevocably waived the condition set forth in this Section 9.02(e) if it does not exercise its right of Parent to control the Company and its Subsidiaries or any other Affiliate of Parent, or (iiiterminate this Agreement pursuant to Section 10.01(c)(ii) seeking to restrain or prohibit within 20 Business Days following the Company’s or Parent’s ownership or operation (or that of their respective Subsidiaries or Affiliates) of any portion delivery of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliates, or to compel the Company or Parent or any of their respective Subsidiaries or Affiliates to dispose of or hold separate any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or AffiliatesInitial Audited Financial Statements.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger are subject to the satisfaction (or or, if permitted by applicable Law, waiver by Parent in its sole discretion) of the following further conditions: (ai) The 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 Effective Time; (ii) each of the representations and warranties of the Company set forth contained in this Agreement (without regard disregarding for this purpose any qualifications with respect to materiality or Company Material Adverse Effect qualifiers contained therein), Effect) shall be true and correct in all material respects, in each case as of the date hereof and at and as of the date of this Agreement and the Closing Date as if made at and as of such date (except time, it being understood and agreed by Parent and Merger Sub that this Section 7.02(a) shall be deemed 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 as of such earlier date), except where the satisfied unless any failure of the representations and warranties performance or failure to be so true and correct, individually or in the aggregate has not had and aggregate, would not reasonably be expected to have a Company Material Adverse Effect; providedand (iii) Parent shall have received a certificate signed by an executive officer of the Company to the foregoing effect; (b) Parent shall have received "cold comfort" letters of Deloitte & Touche LLP and dated the date on which the Registration Statement shall become effective and the Effective Time, respectively, and addressed to Parent, such "cold comfort" letters being in such form and substance as is reasonably customary for letters delivered by independent public accountants in connection with registration statements similar to the Registration Statement; (c) Parent shall have received the opinion of counsel to Parent, based upon representation letters and stockholder certificates, dated on or about the Closing Date, substantially in the forms of Exhibits 7.02(a), (b) and (c) to this Agreement, and such other facts, representations and assumptions concerning, among other things, the actions of the stockholders of the Company as counsel may reasonably deem relevant, to the effect that the representations Merger will be treated for federal income tax purposes as a reorganization qualifying under the provisions of Section 368(a) of the Code and warranties set forth in Sections 3.1that each of Parent, 3.2 Merger Sub and 3.5 the Company will be a party to the reorganization within the meaning of Section 368(b) of the Code, dated on the Closing Date; (d) Parent shall have received from any person who may be true and correct in all material respects at and deemed to have become an affiliate of the Company, as of reasonably determined by the Company, pursuant to Rule 145 under the Securities Act, after the date of this Agreement and the Closing Date as if made as of such date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoing. (b) The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoing. (c) There shall not have occurred any event, occurrence or change that has had, or would reasonably be expected to haveEffective Time, a Company Material Adverse Effectsigned agreement substantially in the form of Exhibit 6.11 hereto. (d) No Action shall be pending by a Governmental Entity (i) seeking to prevent consummation of the Merger, (ii) seeking to impose any limitation on the right of Parent to control the Company and its Subsidiaries or any other Affiliate of Parent, or (iii) seeking to restrain or prohibit the Company’s or Parent’s ownership or operation (or that of their respective Subsidiaries or Affiliates) of any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliates, or to compel the Company or Parent or any of their respective Subsidiaries or Affiliates to dispose of or hold separate any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliates.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger under this Agreement are subject to the satisfaction (satisfaction, at or waiver by Parent in its sole discretion) before the Closing, of each of the following further conditions: (a) The representations and warranties of the Company set forth in this Agreement (without regard Southern contained herein that are qualified as to materiality or Company Material Adverse Effect qualifiers contained therein), shall be true and correct at in all respects on and as of the date of this Agreement and the Closing Date with the same force and effect as if though made at on and as of such 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 as of such earlier date), except where the failure each of the representations and warranties to be true and correct, individually or in the aggregate has of Southern that are not had and would not reasonably be expected to have a Company Material Adverse Effect; provided, that the representations and warranties set forth in Sections 3.1, 3.2 and 3.5 so qualified shall be true and correct in all material respects at and as of the date of this Agreement and the Closing Date as if made as of such date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoingrespects. (b) The Company Southern shall have performed and complied in all material respects with all covenants, agreements, obligations and conditions required by this Agreement to be performed or complied with by it under this Agreement Southern at or prior to the Closing Date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoingClosing. (c) There shall not have occurred be threatened, instituted or pending any event, occurrence Proceeding by or change before any court or Governmental Body requesting or looking toward an Order that has had, (a) restrains or would reasonably be expected to have, a Company Material Adverse Effect. (d) No Action shall be pending by a Governmental Entity (i) seeking to prevent prohibits the consummation of the Merger, (b) could have a Material Adverse Effect on Parent’s ability to exercise control over or manage Southern after the Closing or (c) could have a Material Adverse Effect on Southern. (d) On the Closing Date, there shall be no effective Order issued by a court of competent jurisdiction restraining or prohibiting the consummation of the Merger. (e) Southern shall have delivered to Parent a certificate, dated the Closing Date, executed by a duly authorized officer of Southern certifying the fulfillment of the conditions specified in Sections 8.2(a), (b) and (c). (f) Southern shall have delivered to Parent a certificate, dated the Closing Date, executed by the Secretary of Southern, certifying as to (i) Southern’s Governing Documents, (ii) seeking resolutions with respect to impose any limitation on the right Merger adopted by Southern’s board of Parent to control the Company directors and its Subsidiaries or any other Affiliate of Parentshareholders attached thereto, or and (iii) seeking to restrain or prohibit the Company’s or Parent’s ownership or operation (or that of their respective Subsidiaries or Affiliates) of any portion incumbency and signatures of the business persons who have executed this Agreement and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this Agreement. (g) All documents to be delivered by Southern to Parent at the Closing shall be satisfactory in form and substance to Parent. (h) All Consents of all Third Parties and Governmental Bodies shall have been obtained that are necessary, in the opinion of Parent Counsel, in connection with (a) the execution and delivery by Southern of this Agreement or assets (b) the consummation by Southern of the Company or Merger and copies of all such Consents shall have been delivered to Parent. (i) Parent or any of their respective Subsidiaries or Affiliates, or to compel the Company or Parent or any of their respective Subsidiaries or Affiliates to dispose of or hold separate any portion shall receive possession of the Certificates. (j) Southern shall have executed and delivered to Parent a Certificate of Conversion Ratio in the form attached as Exhibit B hereto. (k) Southern shall have delivered to Parent the financial statements set forth in Section 4.6, audited by an independent certified public accounting firm reasonably acceptable to Parent, the results of which audits shall be satisfactory to Parent. (l) Parent shall have completed a business or assets and legal due diligence investigation of Southern, the Company or Parent or any results of their respective Subsidiaries or Affiliateswhich shall be satisfactory to Parent.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger are subject to the satisfaction (or waiver by Parent in its sole discretion) of the following further conditionsconditions on or prior to the Closing Date: (a) The no governmental or regulatory authority shall have instituted any claim, action, suit, investigation or proceeding for the purpose of enjoining or preventing the transactions contemplated hereby, or which could reasonably be expected to result in a Material Adverse Effect on the Company; (b) the Company shall have taken all action necessary to modify or amend the Severance Obligations to provide that the amount of the Severance Obligations payable to the Severance Participants does not, in the aggregate, exceed an amount equal to $1,214,000 exclusive of payroll taxes and other withholding; (c) the Company shall not have received, pursuant to Section 262 of the DGCL, written demands for appraisal of the fair market value of the Shares from the holders of Company Common Stock representing, in the aggregate, more than eight percent (8%) of the Company Common Stock entitled to vote at the Meeting; (d) all of the representations and warranties of the Company set forth in this Agreement (without regard herein that are qualified as to materiality or Company materiality, Material Adverse Effect qualifiers contained therein)or Material Adverse Change shall be true and correct, and all of the representations and warranties that are not so qualified shall be true and correct at in all material respects, in each case on and as of the date of this Agreement Effective Time and at all times prior to the Closing Date as if made at and as of such date Effective Time (except to the extent that such representations and warranties refer specifically to an earlier are made as of a specific date, in which case such representations and warranties shall have been true and correct as of such earlier date), except where the failure of the representations and warranties to be true and correct, individually or in the aggregate has not had and would not reasonably be expected to have a Company Material Adverse Effect; provided, that the representations and warranties set forth in Sections 3.1, 3.2 and 3.5 shall be true and correct in all material respects at and respects, as of the date of this Agreement and the Closing Date as if made case may be, as of such date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoing.); (be) The the Company shall have performed in all material respects all obligations arising under the agreements and covenants required hereby to be performed by it under this Agreement at or prior to or on the Closing Date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoing.; (cf) There since December 31, 2008, there shall not have occurred been any event, event or occurrence or change that has had, had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.Change on the Company; and (dg) No Action shall be pending by a Governmental Entity (i) seeking to prevent consummation the Company has received the written opinion of the MergerFinancial Advisor to the effect that, (ii) seeking as of the date of such opinion, the consideration to impose any limitation on be received in the right of Parent to control the Company and its Subsidiaries or any other Affiliate of Parent, or (iii) seeking to restrain or prohibit Merger by the Company’s or Parent’s ownership or operation (or that stockholders is fair to such holders from a financial point of their respective Subsidiaries or Affiliates) of any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliates, or to compel the Company or Parent or any of their respective Subsidiaries or Affiliates to dispose of or hold separate any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliatesview.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger are subject to the satisfaction (or waiver by Parent in its sole discretion) of the following further conditions: (a) The (i) the Company shall have performed in all respects its obligations under Section 2.03(a) and in all material respects all of its obligations hereunder other than those under Section 2.03(a), in each case required to be performed by it at or prior to the Effective Time, (ii) the representations and warranties of the Company set forth contained in this Agreement (Agreement, other than the Identified Company Representations, shall be true and correct without regard to any materiality or Company Material Adverse Effect qualifiers contained therein), shall be true and correct therein at and as of the date of this Agreement and the Closing Date Effective Time as if made at and as of such date time (except to the extent that such representations and warranties refer specifically expressly relate to an earlier date, in which case such representations and warranties shall have been be true and correct as of such earlier date), except where the failure of the representations and warranties to be true and correctwith only such exceptions, individually or in the aggregate has aggregate, as have not had and would not reasonably be expected to have a Company Material Adverse Effect; provided, that (iii) the representations and warranties set forth in Sections 3.1, 3.2 and 3.5 Identified Company Representations shall be true and correct in all material respects at and as of the date of this Agreement and the Closing Date Effective Time as if made at and as of such time (except to the extent that such representations and warranties expressly relate to an earlier date. , in which case such representations and warranties shall be true and correct as of such earlier date), with only such exceptions as have not resulted in or would not reasonably be expected to result in costs or liabilities to the Company, in the aggregate, of more than the sum of (x) $500,000 and (y) the Additional Company Deposit, and (iv) Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief an executive officer or the chief financial officer of the Company to the effect of the foregoing.foregoing effect; (b) The Company appraisal rights that were properly exercised in accordance with Section 262 of Delaware Law shall have performed in all material respects all obligations required not remain outstanding at the Effective Time with respect to be performed by it under this Agreement at or prior to the Closing Date. Parent shall have received a certificate dated the Closing Date signed on behalf more than 20% of the outstanding shares of Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoing.Stock at such time; and (c) There the Company shall not have occurred any event, occurrence or change that has had, or would reasonably be expected to have, a Company Material Adverse Effect. (d) No Action shall be pending by a Governmental Entity delivered certified copies of (i) seeking to prevent consummation the resolutions duly adopted by the Board of Directors of the MergerCompany authorizing Table of Contents the execution, delivery and performance of this Agreement and the Transactions, (ii) seeking to impose any limitation on the right of Parent to control resolutions duly adopted by the Company Company’s shareholders adopting this Agreement and its Subsidiaries or any other Affiliate of Parent, or (iii) seeking to restrain or prohibit the Company’s or Parent’s ownership or operation (or that certificate of their respective Subsidiaries or Affiliates) of any portion of incorporation and the business or assets bylaws of the Company or Parent or any of their respective Subsidiaries or Affiliates, or as then in effect immediately prior to compel the Company or Parent or any of their respective Subsidiaries or Affiliates to dispose of or hold separate any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or AffiliatesEffective Time.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger are subject to the satisfaction (or waiver by Parent in its sole discretion(where permissible) of the following further additional conditions: (a) The the representations and warranties of the Company set forth contained in this Agreement (without regard to materiality or Company Material Adverse Effect qualifiers contained therein), shall be true and correct at as of the Effective Time as though made on and as of the date of this Agreement and the Closing Date as if made at and as of such date Effective Time (except to the extent that such representations and warranties refer specifically to expressly made as of an earlier date, in which case such representations and warranties shall have been true and correct as of such earlier date), except where the failure of the representations and warranties to be so true and correctcorrect (without giving effect to any qualification as to "materiality" or "Company Material Adverse Effect" set forth therein) would not have or could not reasonably be expected to have, individually or in the aggregate has aggregate, a Company Material Adverse Effect, and Parent shall have received a certificate of the Chief Executive Officer or Chief Financial Officer of the Company to such effect; (b) the Company shall have performed or complied with all agreements and covenants required by this Agreement to be performed or complied with by it on or prior to the Effective Time, except where the failure to so comply would not had and would have or could not reasonably be expected to have have, individually or in the aggregate, a Company Material Adverse Effect; provided, and Parent shall have received a certificate of the Chief Executive Officer or Chief Financial Officer of the Company to that effect; (c) Parent shall have received the opinion of Wachtell, Lipton, Rosen & Katz, counsel to Parent, dated as of the Closing Date, based xxxx facxx, representations and warranties assumptions set forth in Sections 3.1or referred to in such opinion, 3.2 to the effect that for U.S. federal income tax purposes, the Merger will qualify as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, Wachtell, Lipton, Rosen & Katz may require and 3.5 shall be true entitled to rely upon representxxxxxs, xxxxngs and correct opinions of Parent, the Company or others, including representations substantially in all material respects at the form of EXHIBITS E AND F, respectively; (d) The holders of not more than 5% of the outstanding Company Common Stock shall have demanded appraisal of their Shares in accordance with the DGCL; and (e) Parent and the Company shall have received the opinion of Kirkland & Ellis, counsel to the Company, dated as of the date hereof xxx xx of xxx Xlosing Date, reasonably satisfactory in form and substance to Parent and the Company, to the effect that, for United States federal income tax purposes: (i) the limitations on each transferee's ownership rights set forth in the 2000 Stock Purchase Agreements between the Company and the holders of Class A Common Stock (the "2000 STOCK PURCHASE AGREEMENTS") constitute "nonlapse restrictions" within the meaning of Treasury Regulation Section 1.83-3(h), (ii) each person who has entered into a 2000 Stock Purchase Agreement with the Company owns the Class A Common Stock covered by such person's 2000 Stock Purchase Agreement (and owned such stock as of the date of this Agreement Agreement), and the Closing Date as if made as of (iii) such date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company stock was "transferred" to the effect of the foregoing. (b) The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or such person prior to the Closing Date. Parent shall have received date of this Agreement and such stock is "substantially vested" and not subject to a certificate dated "substantial risk of forfeiture" in the Closing Date signed on behalf hands of the Company by the chief executive officer or the chief financial officer of the Company such person (and became so prior to the effect date of this Agreement), in each case, within the foregoingmeaning of Code Section 83 and the Treasury Regulations thereunder. (c) There shall not have occurred any event, occurrence or change that has had, or would reasonably be expected to have, a Company Material Adverse Effect. (d) No Action shall be pending by a Governmental Entity (i) seeking to prevent consummation of the Merger, (ii) seeking to impose any limitation on the right of Parent to control the Company and its Subsidiaries or any other Affiliate of Parent, or (iii) seeking to restrain or prohibit the Company’s or Parent’s ownership or operation (or that of their respective Subsidiaries or Affiliates) of any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliates, or to compel the Company or Parent or any of their respective Subsidiaries or Affiliates to dispose of or hold separate any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliates.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger under this Agreement are subject to the satisfaction (satisfaction, at or waiver by Parent in its sole discretion) before the Closing, of each of the following further conditions: (a) The representations and warranties of the Company set forth in this Agreement (without regard Money Centers contained herein that are qualified as to materiality or Company Material Adverse Effect qualifiers contained therein), shall be true and correct at in all respects on and as of the date of this Agreement and the Closing Date with the same force and effect as if though made at on and as of such 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 as of such earlier date), except where the failure each of the representations and warranties to be true and correct, individually or in the aggregate has of Money Centers that are not had and would not reasonably be expected to have a Company Material Adverse Effect; provided, that the representations and warranties set forth in Sections 3.1, 3.2 and 3.5 so qualified shall be true and correct in all material respects at and as of the date of this Agreement and the Closing Date as if made as of such date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoingrespects. (b) The Company Money Centers shall have performed and complied in all material respects with all covenants, agreements, obligations and conditions required by this Agreement to be performed or complied with by it under this Agreement Money Centers at or prior to the Closing Date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoingClosing. (c) There shall not have occurred be threatened, instituted or pending any event, occurrence Proceeding by or change before any court or Governmental Body requesting or looking toward an Order that has had, (a) restrains or would reasonably be expected to have, a Company Material Adverse Effect. (d) No Action shall be pending by a Governmental Entity (i) seeking to prevent prohibits the consummation of the Merger, (b) could have a Material Adverse Effect on Parent's ability to exercise control over or manage Money Centers after the Closing or (c) could have a Material Adverse Effect on Money Centers. (d) On the Closing Date, there shall be no effective Order issued by a court of competent jurisdiction restraining or prohibiting the consummation of the Merger. (e) Money Centers shall have delivered to Parent a certificate, dated the Closing Date, executed by a duly authorized officer of Money Centers certifying the fulfillment of the conditions specified in Sections 8.2(a), (b) and (c). (f) Money Centers shall have delivered to Parent a certificate, dated the Closing Date, executed by the Secretary of Money Centers, certifying as to (i) Money Centers' Governing Documents, (ii) seeking resolutions with respect to impose any limitation on the right Merger adopted by Money Centers' board of Parent to control the Company directors and its Subsidiaries or any other Affiliate of Parentshareholders attached thereto, or and (iii) seeking to restrain or prohibit the Company’s or Parent’s ownership or operation (or that of their respective Subsidiaries or Affiliates) of any portion incumbency and signatures of the business or assets of persons who have executed this Agreement, the Company or Parent Related Agreements to which it is a Party and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this Agreement or any of their respective Subsidiaries the Related Agreements to which it is a party on behalf of Money Centers. (g) Parent shall have received an opinion of Klehr, Harrison, Branzburg & Ellers LLP, counsel to Money Centers, dated the Closing Date, in form xxx xubstance reasonably satisfactory to Parent. (h) Shareholder shall have entered into an employment agreement with Parent on terms and conditions reasonably acceptable to Parent. (i) The Related Agreements to which Money Centers is a party and all other documents to be delivered by Money Centers to Parent at the Closing shall be satisfactory in form and substance to Parent. (j) All Consents of all Third Parties and Governmental Bodies shall have been obtained that are necessary, in the opinion of Parent Counsel, in connection with (a) the execution and delivery by Money Centers of this Agreement and the Related Agreements to which it is a Party or Affiliates, or to compel (b) the Company or Parent or any of their respective Subsidiaries or Affiliates to dispose of or hold separate any portion consummation by Money Centers of the Merger and copies of all such Consents shall have been delivered to Parent. (k) Parent shall have completed a business or and legal due diligence investigation of Money Centers, its assets and properties and the Business, the results of which shall be satisfactory to Parent in its sole discretion. (l) Parent shall receive possession of the Company or Certificates. (m) Parent or any shall receive from Money Centers audited consolidated and consolidating balance sheets and statements of their respective Subsidiaries or Affiliatesincome, change in stockholders' equity and cash flow as of and for the twelve months ended September 30, 2003. (n) Money Centers shall deliver an industry-standard commitment letter to Parent providing for the refinancing of its existing vault cash and, upon consummation of the acquisition of Chex Services, Inc. by iGames Entertainment, Inc., the existing vault cash of Chex Services, Inc. Such commitment letter shall be subject to the standard contingencies for commitment letters in this area of financing.

Conditions to the Obligations of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub to effect the Merger are is subject to the satisfaction (at or waiver by Parent in its sole discretion) prior to the Effective Time of the following further conditions: (a) The Company shall have performed in all material respects its obligations under this Agreement required to be performed by it at or prior to the Effective Time; (b) each of the representations and warranties of the Company set forth contained in this Agreement (without regard giving effect to any materiality qualifications or limitations therein or any references therein to Company Material Adverse Effect qualifiers contained thereinEffect), shall be true and correct at correct, in each case as of the Effective Time as though made on and as of the date of this Agreement and the Closing Date as if made at and as of such 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 as of such earlier date)Effective Time, except where the failure of the representations and warranties to be true and correct(i) for such failures, individually or in the aggregate has not had aggregate, to be true and correct that would not reasonably be expected to have a Company Material Adverse Effect; provided, (ii) that the those representations and warranties set forth in Sections 3.1, 3.2 and 3.5 that address matters only as of a particular date shall be remain true and correct in all material respects at and as of such date, subject to the qualifications in (i) above; and (iii) for changes expressly permitted as contemplated by the terms of this Agreement; (c) from the date of this Agreement through the Effective Time, there shall not have occurred any change in the financial condition, business or operations of Company and the Closing Date its Subsidiaries, taken as if made as of such date. a whole, that constitutes or would reasonably be expected to constitute a Company Material Adverse Effect; (d) Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial a duly authorized officer of the Company to the effect that each of the foregoing.conditions specified in Section 8.2(a)-(c) has been satisfied in all respects; (be) The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date. Parent shall have received a certificate dated opinions from Vinson & Elkins L.L.P. both prior to the Closing Date signed on behalf effectiveness of the Company by Registrxxxxx Staxxxxxx and immediately prior to the chief executive officer or the chief financial officer of the Company Effective Time to the effect of the foregoing. (c) There shall not have occurred any event, occurrence or change that has had, or would reasonably be expected to have, a Company Material Adverse Effect. (d) No Action shall be pending by a Governmental Entity (i) seeking to prevent consummation the Merger, if consummated in accordance with the terms of this Agreement, will constitute a reorganization under Section 368(a) of the MergerCode, (ii) seeking to impose any limitation on the right of Parent to control the Parent, Company and its Subsidiaries or any other Affiliate of ParentMerger Sub will each be a party to that reorganization, or and (iii) seeking no gain or loss will be recognized for U.S. income tax purposes by Parent or Company, except with respect to restrain or prohibit the Company’s or Parent’s ownership or operation (or that of their respective Subsidiaries or Affiliates) of any portion distribution of the business or assets Trust Units, because of the Merger; provided, however, that if the counsel to Parent shall not render such opinion, this condition shall nonetheless be deemed to be satisfied if counsel to Company shall render such opinion to Parent; provided, further, that in rendering such opinion, such counsel may rely upon the Parent Tax Certificate and the Company Tax Certificate; and (f) each of the consent, waivers and approvals set forth in Section 4.4(c) of the Company or Disclosure Schedule (other than with respect to the office leases in Houston, Texas and DeSoto, Texas) shall have been obtained, and Company shall have provided Parent or any of their respective Subsidiaries or Affiliates, or to compel the Company or Parent or any of their respective Subsidiaries or Affiliates to dispose of or hold separate any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliateswith copies thereof.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger are subject to the satisfaction (or waiver by Parent in its sole discretion) of the following further conditions: (a) The representations and warranties of the Company set forth in this Agreement (without regard to materiality or Company Material Adverse Effect qualifiers contained therein), shall be true and correct at and as of the date of this Agreement and the Closing Date as if made at and as of such 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 as of such earlier date), except where the failure of the representations and warranties to be true and correct, individually or in the aggregate has not had and would not reasonably be expected to have a Company Material Adverse Effect; provided, that the representations and warranties set forth in Sections 3.1, 3.2 and 3.5 shall be true and correct in all material respects at and as of the date of this Agreement and the Closing Date as if made as of such date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoing. (b) The Company shall have performed in all material respects all of its obligations hereunder required to be performed by it under this Agreement at or prior to the Closing Date. Effective Time; the representations and warranties of the Company contained in this Agreement (i) set forth in Sections 4.2 and 4.5 shall be true and correct in all respects (except, in the case of Section 4.5, for inaccuracies that are de minimis in the aggregate) on the date hereof and as of the Effective Time as if made at and as of such time and (ii) other than those described in clause (i) above, shall be true and correct in all respects on the date hereof and as of the date of the Effective Time as if made at and as of such time (without giving effect to any qualification as to “materiality” or “Material Adverse Effect” set forth herein), except in the case of this clause (ii) where the failure to be so true and correct does not constitute a Material Adverse Effect, provided that representations made as of a specific date shall be required to be so true and correct (subject to such qualifications) as of such date only; and Parent and Merger Sub shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or Chief Executive Officer and the chief financial officer Chief Financial Officer of the Company to the effect foregoing effect. (b) The aggregate number of Shares at the Effective Time, the holders of which have demanded purchase of their Shares in accordance with the provisions of Section 262 of the foregoingDGCL, shall not equal 10% or more of the Shares outstanding as of the record date for the Company Stockholders Meeting. (c) There Since the date of this Agreement, there shall not have occurred and be continuing any change, event, occurrence occurrence, development or change that has hadcircumstance which, individually or would reasonably be expected to havein the aggregate, constitutes a Company Material Adverse Effect. (d) No Action shall be pending by a Governmental Entity (i) seeking to prevent consummation of the Merger, (ii) seeking to impose any limitation on the right of Parent to control the Company and its Subsidiaries or any other Affiliate of Parent, or (iii) seeking to restrain or prohibit the Company’s or Parent’s ownership or operation (or that of their respective Subsidiaries or Affiliates) of any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliates, or to compel the Company or Parent or any of their respective Subsidiaries or Affiliates to dispose of or hold separate any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliates.

Conditions to the Obligations of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub to effect consummate the Merger are is subject to the satisfaction (or, to the extent permitted by applicable Law, waiver, on or waiver by Parent in its sole discretion) prior to the Closing, of the following further conditions: (a) The the representations and warranties of the Company set forth in this Agreement Article 3 shall be true and correct as of the Closing as though made as of the Closing, except those representations that are (without regard A) qualified as to materiality or Company Material Adverse Effect qualifiers and other qualifications based upon the concept of materiality or similar phrases contained therein), therein shall be true and correct at in all respects and (B) not qualified as of the date of this Agreement and the Closing Date as if made at and as of such 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 as of such earlier date), except where the failure of the representations and warranties to be true and correct, individually materiality or in the aggregate has not had and would not reasonably be expected to have a Company Material Adverse Effect; provided, that Effect and other qualifications based upon the representations and warranties set forth in Sections 3.1, 3.2 and 3.5 concept of materiality or similar phrases contained therein shall be true and correct in all material respects at respects, in each case ((A) and (B)) 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 the Closing Date as if made correct as of such date. Parent shall have received ), except where any failures of any such representations and warranties to be true and correct has not had or would not reasonably be expected to have, individually or in the aggregate with all other Effects, a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoing.Material Adverse Effect; (b) The the Company shall have performed and complied in all material respects with all of the obligations and covenants required to be performed or complied with by it under this Agreement at or prior to the Closing Date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoing.under this Agreement; (c) There since the date of this Agreement, there shall not have occurred and not be continuing any eventEffect that, occurrence individually or change that in the aggregate, has had, had or would reasonably be expected to have, a Company Material Adverse Effect.; (d) No Action Parent shall be pending by have received at the Closing a Governmental Entity (i) seeking to prevent consummation of the Merger, (ii) seeking to impose any limitation certificate signed on the right of Parent to control the Company and its Subsidiaries or any other Affiliate of Parent, or (iii) seeking to restrain or prohibit the Company’s or Parent’s ownership or operation (or that of their respective Subsidiaries or Affiliates) of any portion of the business or assets behalf of the Company or Parent or any of their respective Subsidiaries or Affiliates, or to compel by the Company or Parent or any of their respective Subsidiaries or Affiliates to dispose of or hold separate any portion of the business or assets Chief Executive Officer of the Company or certifying that the conditions set forth in Section 6.2(a), Section 6.2(b) and Section 6.2(c) have been satisfied; (e) the aggregate Census of the Owned Healthcare Facilities on the second Business Day prior to the Closing shall be no lower than 850, as shown by a true, correct and complete Census report delivered to Parent or any of their respective Subsidiaries or Affiliatesprior to Closing; and (f) no Owned Healthcare Facility shall be Out-of-Compliance.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger are subject to the satisfaction (or or, if permitted by applicable Legal Requirements, waiver by Parent in its sole discretion) of the following further conditions: (a) The representations and warranties of (i) the Company set forth in this Agreement (without regard to materiality or Company Material Adverse Effect qualifiers contained therein), shall be true and correct at and as of the date of this Agreement and the Closing Date as if made at and as of such 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 as of such earlier date), except where the failure of the representations and warranties to be true and correct, individually or in the aggregate has not had and would not reasonably be expected to have a Company Material Adverse Effect; provided, that the representations and warranties set forth in Sections 3.1, 3.2 and 3.5 shall be true and correct in all material respects at and as of the date of this Agreement and the Closing Date as if made as of such date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoing. (b) The Company shall have performed in all material respects all of its obligations hereunder required to be performed by it under this Agreement at or prior to the Closing Date. Effective Time; (ii) each of the representations and warranties of the Company contained in this Agreement which is qualified as to materiality shall be true and correct and each such representation and warranty that is not so qualified shall be true and correct in all material respects, in each case as of the date hereof and at and as of the Effective Time as if made at and as of such time, except that those representations and warranties which address matters only as of a particular date shall remain true and correct as of such date; and (iii) Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief an executive officer or the chief financial officer of the Company Company, respectively, to the effect of the foregoing.foregoing effect; (cb) There there shall not have occurred any event, occurrence been instituted or change that has had, or would reasonably be expected to have, a Company Material Adverse Effect. (d) No Action shall be pending any action or proceeding having a reasonable likelihood of success by or before any Governmental Authority or a court of competent jurisdiction, nor shall there be in effect any judgment, decree or order of any Governmental Entity (i) Authority or court of competent jurisdiction, in either case, seeking to prevent consummation of make materially more costly the Merger, (ii) or seeking to impose any limitation on obtain material damages in connection with the right of Parent to control the Company and its Subsidiaries or any other Affiliate of ParentMerger, or (iii) seeking to restrain prohibit or prohibit limit materially Parent at any time after the Company’s Effective Time from exercising all material rights and privileges pertaining to its ownership of the Surviving Corporation to the full extent permitted by applicable Legal Requirements or Parent’s the ownership or operation (by Parent or that any of their respective Subsidiaries its subsidiaries of all or Affiliates) of any portion of the business or assets of the Company or Surviving Corporation, Parent or any of their respective Subsidiaries or Affiliatessubsidiaries, or seeking to compel the Company or Surviving Corporation, Parent or any of their respective Subsidiaries or Affiliates subsidiaries to dispose of or hold separate all or any portion of the business or assets of the Company or Surviving Corporation, Parent or any of their respective Subsidiaries or Affiliatessubsidiaries, as a result of the Merger; (c) the documents providing for the Redemption and the exercise of the options described in Section 2.01 shall be reasonably satisfactory to Parent and its counsel and shall in any event include an acknowledgement of the deduction and withholding described in Section 2.07; (d) the Parent shall have received an opinion of Reinman, Matheson, Xxxxxx, Xxxxxx & Xxxxxx, PA, counsel to the Company, covering such matters as are listed in Exhibit 7.02(d); (e) the Parent shall have received an opinion of Xxxx, Xxxxxx & Xxxxxxxx, P.A., counsel to the ESOP, covering such matters as are listed in Exhibit 7.02(e); (f) Parent and each of Xxxxx Xxxxxxx, Xxxxx Xxxxxxx, Xxxxxxx Xxxxxx, Xxxx Day, Xxxxx Xxxxx, Xxx Xxxxxx, Xxxx Xxxxxxxx, Xxxxxx Xxxxxxxx, Xxx XxXxxxxxx, Xxxx Shverak, Xxx Xxxx, Xxxxxx Xxxx and Xxxxxx Xxxxxxxx shall have entered into mutually acceptable employment agreements; and (g) The Company shall have furnished to Parent (i) certification in the form required by Treasury Regulation Section 1.1445-2(c)(3) that the capital stock of the Company is not a "United States real property interest"; and (ii) as agent for the Company, a form of notice to the Internal Revenue Service in accordance with the requirements of Treasury Regulations Section 1.897-2(h)(2) along with written authorization for Parent to deliver such notice form to the Internal Revenue Service on behalf of the Company upon the Closing.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger are transactions contemplated by this Agreement shall be further subject to the satisfaction (fulfillment at or waiver by Parent in its sole discretion) prior to the Closing Date of the following further conditions, any one or more of which may be waived by Parent: (a) The the representations and warranties of the Company Principal Stockholders and Phoenix set forth in this Agreement (without regard that are qualified as to materiality or Company Material Adverse Effect qualifiers contained therein), shall be true and correct at and (ii) the representations and warranties of the Principal Stockholders and Phoenix set forth in this Agreement that are not so qualified shall be true and correct in all material respects, in each case, as of the date of this Agreement and the Closing Date Effective Time as if though made at on and as of such date (except to the extent that unless any such representations and warranties refer specifically to an earlier representation or warranty is made only as of a specific date, in which case event such representations representation and warranties warranty shall have been be true and correct or true and correct in all material respects, as the case may be, as of such earlier specified date), ) except where the failure of the representations and warranties to be true and correct, individually or in the aggregate has not had and would not reasonably be expected to have a Company Material Adverse Effect; provided, that the representations and warranties set forth in Sections 3.1, 3.2 3.2, 4.1, 4.2 and 3.5 4.3 shall be true and correct correct. (b) Principal Stockholders and Phoenix shall have performed and complied in all material respects at with the covenants and as of the date of agreements contained in this Agreement required to be performed and complied with by Principal Stockholders or Phoenix, as the case may be, at or prior to the Closing Date as if made as of such date. Date; (c) Parent shall have received a certificate dated the Closing Date signed on behalf of from the Company by the chief executive officer or the chief financial officer of the Company Principal Stockholders and Phoenix to the effect of that the foregoing.conditions set forth in Section 7.3(a) and Section 7.3(b) have been satisfied; (bd) The Company all Phoenix Required Approvals shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoing.been obtained; (ce) There since the date of this Agreement, there shall not have occurred or been discovered any change, event, occurrence circumstance or change development that has had, or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.; (df) No Action each party to the Ancillary Agreements (other than Parent or Merger Sub) shall be pending have executed and delivered the Ancillary Agreements; (g) duly executed UCC 3 termination statements, mortgage releases, together with a letter from each secured party or mortgagee, unconditionally agreeing to release the security interest held by such secured party against receipt of a Governmental Entity stated sum representing the total amount owed by the Company to such secured party; (h) the Company shall have delivered duly executed resignations of all of the directors and officers of the Company and the Subsidiaries, provided, that no such resignation of an officer or director from such position shall, in it of itself, constitute a termination of any such individual’s employment with the Company; (i) seeking the Stockholder Approval shall not have been rescinded; (j) consummation of satisfactory employment or consulting arrangements with each of the individuals listed on Section 7.3(j) of the Disclosure Schedule; (k) the Company shall have provided Parent with a statement, pursuant to prevent Section 1.897-2(h) of the Treasury Regulations, certifying that an interest in the Company in not a U.S. real property interest within the meaning of Section 897(c)(1) of the Code; (l) the Company’s independent accountants shall have completed the audit of Phoenix and its Subsidiaries with respect to the twelve months ended December 31, 2007 and delivered an audit opinion with respect thereto; (m) the aggregate number of shares of Phoenix Common Stock that are Dissenting Shares shall not exceed 11% of the shares of Phoenix Common Stock outstanding immediately prior to the Effective Time; (n) the Company shall have delivered to Parent duly executed letter agreements in form and substance reasonably satisfactory to Parent and its counsel, providing for the payment and cancellation of all of the outstanding Indebtedness (other than the Notes) as of the Closing Date; (o) all conditions (other than the consummation of the Merger, (ii) seeking to impose any limitation on the right of Parent to control the Company and its Subsidiaries or any other Affiliate of Parent, or (iii) seeking to restrain or prohibit the Company’s or Parent’s ownership or operation (or that of their respective Subsidiaries or Affiliates) of any portion purchase of the business or assets outstanding Notes in the Debt Offer and/or the Redemption shall have been satisfied and discharged in compliance with the terms of the Company or Parent or any of their respective Subsidiaries or AffiliatesNotes and applicable Law and as contemplated by the Debt Documents, or to compel and the Company or Parent or any of their respective Subsidiaries or Affiliates to dispose of or hold separate any portion Notes shall have been purchased in the Debt Offer and/or called for redemption and the Indenture satisfied and discharged in compliance with the terms of the business or assets of Notes and applicable Law and as contemplated by the Debt Documents; (p) The Company or Parent or any of their respective Subsidiaries or Affiliatesshall have received from the agent under its Credit Agreement a waiver with respect to the Debt Offer, the Solicitation and the Redemption; (q) the Plan Trustee shall have voted upon this Agreement and the transactions contemplated hereunder; and (r) the existing stockholders’ agreement shall have been terminated.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger are subject to the satisfaction of the following further conditions (any one of which may be waived in whole or waiver part by Parent in its sole discretion) of discretion by giving written notice to the following further conditions:Company in compliance with Section 10.1 hereof): (a) The (i) the Company shall have performed all of its material obligations hereunder required to be performed by it at or prior to the Effective Time; and (ii) Parent shall have received a certificate signed by an executive officer of the Company to the foregoing effect; (b) (i) each of the representations and warranties of the Company set forth contained in this Agreement (without regard to materiality or Company Material Adverse Effect qualifiers contained therein), shall be true and correct at and as of the date of this Agreement and the Closing Date as if made at and as of such 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 as of such earlier date), except where the failure of the representations and warranties to be true and correct, individually or in the aggregate has not had and would not reasonably be expected to have a Company Material Adverse Effect; provided, that the representations and warranties set forth in Sections 3.1, 3.2 and 3.5 shall be true and correct in all material respects at the time originally made (as qualified by the Company Disclosure Schedule) and shall be true and correct as of the Effective Time (as qualified by the Updated Company Disclosure Schedule delivered by the Company most recently prior to the delivery of the Merger Election Notice by Parent); and (ii) the Company shall deliver to Parent at the Closing a certificate, dated as of the date of the Closing and signed by the Company’s President or Chief Executive Officer, certifying to that effect; (c) each of the officers or employees of the Company responsible for oversight of the (i) research and development, (ii) operations, (iii) clinical, and (iv) general management functions of the Company shall have executed and delivered non-competition agreements with Parent in the form attached hereto as Exhibit F; (d) except in the case of such person’s death or permanent disability, the persons identified by Parent at the time of delivery of a Merger Election Notice shall have executed and delivered an employment agreement or a consulting agreement with Parent in form and substance satisfactory to Parent and such person; (e) no Material Adverse Effect with respect to the Company’s business shall have occurred or been discovered by Parent since the date of delivery of the Merger Election Notice; (f) no injunction or other decree shall have been issued by any court of competent jurisdiction prohibiting the sale of the Contingent Payment Products by the Company or Parent on the basis of any rights held by a third party (including without limitation any rights of any third party in any Intellectual Property); (g) Heller, Ehrman, White & XxXxxxxxx LLP or other legal counsel to the Company approved by Parent in its sole discretion will have issued a legal opinion in the form attached hereto as Exhibit G; (h) the Company shall have delivered a properly executed statement, dated as of the Closing Date, in a form reasonably acceptable to Parent conforming to the requirements of Treasury Regulations Section 1.1445-2(c)(3); (i) the Company shall have delivered to Parent and Merger Sub a certificate that (x) incorporates by reference the representations and warranties set forth in Section 3.2 and sets forth the information required to be set forth on Section 3.2 of the Company Disclosure Schedule as of the Effective Time, (y) sets forth a description of all Stockholder Debt to be outstanding immediately prior to the Effective Time, including the current holder thereof and the maximum amount required to discharge such Stockholder Debt in full (including any accrued interest, prepayment fees or costs, and any increases or multiples of the principal amount thereof), and (y) sets forth a description of all Merger-Triggered Fees, including the persons to whom they are payable, and the respective maximum amounts thereof (the “Capitalization and Fee Certificate”), which Capitalization and Fee Certificate shall be deemed to be a representation and warranty of the Company hereunder; (j) the Company shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the Merger under all notes, bonds, mortgages, indentures, contracts, agreements, leases, licenses, permits, franchises and other instruments or obligations to which it is a party, other than consents or approvals which, if not obtained, would not have a Parent Impairment either prior to or following the Closing; (k) any and all rights, warrants, options or other instruments or rights to purchase shares of Company Common Stock or Company Preferred Stock (other than Company Options and Company Warrants, which shall be converted into the right to receive a portion of the Merger Consideration in accordance with Section 2.1) outstanding immediately prior to the Closing, whether or not exercisable, whether or not vested, and whether or not performance based, shall have been exercised or terminated, and, except for the Stockholder Debt set forth on the Capitalization and Fee Certificate which shall be paid by Parent at the Closing in accordance with Section 1.5(a), all outstanding convertible notes shall have been cancelled without repayment or converted into capital stock of the Company; (l) if requested by Parent, the Company shall have held a Stockholders Meeting and the Company Stockholders shall have approved the entrance by the Company into this Agreement and the Closing Date as if made as of such date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoing. (b) The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoing. (c) There shall not have occurred any event, occurrence or change that has had, or would reasonably be expected to have, a Company Material Adverse Effect. (d) No Action shall be pending by a Governmental Entity (i) seeking to prevent consummation of the transactions contemplated hereby, including the Merger, ; and (iim) seeking holders of no more than 5.0% of the aggregate outstanding Company Common Stock and Company Preferred Stock (calculated on an as-converted to impose any limitation on Company Common Stock basis) as of the right of Parent to control the Company and its Subsidiaries or any other Affiliate of ParentEffective Time shall have elected to, or (iii) seeking continue to restrain have contingent rights to, exercise dissenters’, appraisal or prohibit the Company’s or Parent’s ownership or operation (or that of their respective Subsidiaries or Affiliates) of any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliates, or similar rights under California Law with respect to compel the Company or Parent or any of their respective Subsidiaries or Affiliates to dispose of or hold separate any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliatessuch shares.

Conditions to the Obligations of Parent and Merger Sub. The respective obligations of Parent and Merger Sub to effect the Merger are subject to the satisfaction (at or waiver by Parent in its sole discretion) before the Effective Time of the following further conditions: (a) The the representations and warranties of the Company set forth contained in this Agreement (without regard to materiality or Company Material Adverse Effect qualifiers contained therein), and the representations and warranties of the Company’s stockholders in the Stockholders Agreement shall be true and correct at and as of the date of this Agreement and Effective Time with the Closing Date same effect as if made at and as of such date the Effective Time except (except i) to the extent that such representations and warranties refer specifically relate to an earlier date, in which case such representations and warranties shall have been be true and correct as of such earlier date), except date (ii) subject to and qualified by the transactions contemplated herein and (iii) where the failure of the representations and warranties to be true and correct, individually or in the aggregate has aggregate, does not had and would not be reasonably be expected to have a Company Material Adverse Effect; provided, that ; (b) each of the representations covenants and warranties set forth in Sections 3.1, 3.2 and 3.5 obligations of the Company to be performed at or before the Effective Time pursuant to the terms of this Agreement shall be true and correct have been duly performed in all material respects at and as or before the Effective Time; (c) all of the date of this Agreement issued and the Closing Date as if made as of such date. Parent outstanding Company Warrants shall have received a certificate dated been exercised or duly terminated; (d) all of the Closing Date signed on behalf issued and outstanding Company Options shall have been exercised or duly terminated; (e) all of the Company by the chief executive officer or the chief financial officer Indebtedness and any and all obligations of the Company to make the effect severance or other similar payments to any of its directors, officers, employees or consultants, shall have been paid in full, and all mortgages, security interests and other Encumbrances securing or otherwise arising under or relating to such Company Indebtedness, shall have been released, discharged and terminated in full, in each case in form and substance reasonably satisfactory to Parent and its counsel; and (f) the Company (and others contemplated by Section 2.15(b)), as the case may be, shall have delivered all of the foregoingrequired Closing deliveries set forth in Section 2.15(b) above. (b) The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoing. (c) There shall not have occurred any event, occurrence or change that has had, or would reasonably be expected to have, a Company Material Adverse Effect. (d) No Action shall be pending by a Governmental Entity (i) seeking to prevent consummation of the Merger, (ii) seeking to impose any limitation on the right of Parent to control the Company and its Subsidiaries or any other Affiliate of Parent, or (iii) seeking to restrain or prohibit the Company’s or Parent’s ownership or operation (or that of their respective Subsidiaries or Affiliates) of any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliates, or to compel the Company or Parent or any of their respective Subsidiaries or Affiliates to dispose of or hold separate any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliates.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger are subject to the satisfaction (or waiver by Parent in its sole discretion(where permissible) of the following further additional conditions: (a) The representations and warranties of the Company set forth contained in this Agreement (without regard to materiality or Company Material Adverse Effect qualifiers contained therein), shall be true and correct at and (disregarding all qualifications or limitations as to “materiality” or “Company Material Adverse Effect” or other similar qualifiers set forth therein) as of the date of this Agreement and the Closing Date Effective Time as if though made at on and as of such date (except to the extent that unless any such representations and warranties refer specifically to an earlier representation or warranty is made only as of a specific date, in which case such representations and warranties shall have been true and correct as of such earlier date), except where the failure of the any such representations and warranties to be so true and correct, individually or in the aggregate correct has not had had, and would not reasonably be expected to have have, a Company Material Adverse Effect; provided, that the representations and warranties set forth in Sections 3.1, 3.2 and 3.5 shall be true and correct in all material respects at and as of the date of this Agreement and the Closing Date as if made as of such date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoing. (b) The Company shall have performed in all material respects the obligations, and complied in all obligations material respects with the agreements and covenants, required to be performed by by, or complied with by, it under this Agreement at or prior to the Closing Date. Parent Effective Time. (c) No Company Material Adverse Effect shall have received occurred since the date of this Agreement. (d) The Company shall have delivered to Parent a certificate dated the Closing Date certificate, signed on behalf of the Company by the chief executive officer or Chief Executive Officer and Chief Financial Officer of the chief financial Company (solely in his capacity as an officer of the Company without personal liability), certifying as to the effect satisfaction of the foregoingconditions specified in Sections 6.2(a), 6.2(b), and 6.2(c). (ce) There The Company shall have received, on or prior to the Effective Time, an agreement acceptable to Parent which shall waive, for a period of not less than sixty days from the Effective Time, any rights the lenders under the Credit Agreement may have (whether of acceleration or otherwise) as a result of a Change of Control Event (as defined in the Credit Agreement) being deemed to have occurred any event, occurrence or change that has had, or would reasonably be expected to have, as a Company Material Adverse Effectresult of the transactions contemplated by this Agreement. (df) No Action The Contribution shall have been consummated and DLJ shall have otherwise complied with each of its obligations under the Contribution Agreement; provided, however, that Parent’s obligation to consummate the Merger shall not be pending conditioned on the matters described in this clause (f) to the extent any breach by a Governmental Entity (i) seeking to prevent Parent under the Contribution Agreement or this Agreement has been the cause of, or resulted in, the failure of the consummation of the Merger, (ii) seeking Contribution or DLJ’s failure to impose any limitation on comply with its obligations under the right of Parent to control the Company and its Subsidiaries or any other Affiliate of Parent, or (iii) seeking to restrain or prohibit the Company’s or Parent’s ownership or operation (or that of their respective Subsidiaries or Affiliates) of any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliates, or to compel the Company or Parent or any of their respective Subsidiaries or Affiliates to dispose of or hold separate any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or AffiliatesContribution Agreement.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger under this Agreement are subject to the satisfaction (satisfaction, at or waiver by Parent in its sole discretion) before the Closing, of each of the following further conditions: (a) The representations and warranties of the Company set forth in this Agreement (without regard United and Promark contained herein that are qualified as to materiality or Company Material Adverse Effect qualifiers contained therein), shall be true and correct at in all respects on and as of the date of this Agreement and the Closing Date with the same force and effect as if though made at on and as of such 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 as of such earlier date), except where the failure each of the representations and warranties to be true of United and correct, individually or in the aggregate has Promark that are not had and would not reasonably be expected to have a Company Material Adverse Effect; provided, that the representations and warranties set forth in Sections 3.1, 3.2 and 3.5 so qualified shall be true and correct in all material respects at and as of the date of this Agreement and the Closing Date as if made as of such date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoingrespects. (b) The Company United and Promark shall have performed and complied in all material respects with all covenants, agreements, obligations and conditions required by this Agreement to be performed or complied with by it under this Agreement United and Promark at or prior to the Closing Date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoingClosing. (c) There shall not have occurred be threatened, instituted or pending any event, occurrence Proceeding by or change before any court or Governmental Body requesting or looking toward an Order that has had, (a) restrains or would reasonably be expected to have, a Company Material Adverse Effect. (d) No Action shall be pending by a Governmental Entity (i) seeking to prevent prohibits the consummation of the Merger, (b) could have a Material Adverse Effect on Parent’s ability to exercise control over or manage United and Promark after the Closing or (c) could have a Material Adverse Effect on United or Promark. (d) On the Closing Date, there shall be no effective Order issued by a court of competent jurisdiction restraining or prohibiting the consummation of the Merger. (e) United and Promark shall have delivered to Parent a certificate, dated the Closing Date, executed by a duly authorized officer of United and Promark certifying the fulfillment of the conditions specified in Sections 10.2(a), (b) and (c). (f) Each of United and Promark shall have delivered to Parent and Merger Sub a certificate, dated the Closing Date, executed by its Secretary, certifying as to (i) its Governing Documents, (ii) seeking resolutions with respect to impose any limitation on the right Merger adopted by its board of Parent to control the Company directors and its Subsidiaries or any other Affiliate of Parentshareholders attached thereto, or and (iii) seeking to restrain or prohibit the Company’s or Parent’s ownership or operation (or that of their respective Subsidiaries or Affiliates) of any portion incumbency and signatures of the business persons who have executed this Agreement and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this Agreement. (g) All documents to be delivered by United and Promark to Parent and Merger Sub at the Closing shall be satisfactory in form and substance to Parent and Merger Sub. (h) All Consents of all Third Parties and Governmental Bodies shall have been obtained that are necessary, in the opinion of Parent counsel, in connection with (a) the execution and delivery by United and Promark or assets (b) the consummation by United of the Company or Parent or any Merger, and copies of their respective Subsidiaries or Affiliates, or all such Consents shall have been delivered to compel the Company or Parent or any of their respective Subsidiaries or Affiliates to dispose of or hold separate any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or AffiliatesParent.

Conditions to the Obligations of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub to effect the Merger are and to perform their other obligations to be performed at or subsequent to the Closing shall be subject to the satisfaction (fulfillment at or waiver by Parent in its sole discretion) prior to the Closing of the following further additional conditions, any one or more of which may be waived by Parent or Merger Sub: (a) The representations and warranties of the Company set forth in this Agreement (without regard to materiality or Company Material Adverse Effect qualifiers contained therein), shall be true and correct at and as of the date of this Agreement and the Closing Date as if made at and as of such 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 as of such earlier date), except where the failure of the representations and warranties to be true and correct, individually or in the aggregate has not had and would not reasonably be expected to have a Company Material Adverse Effect; provided, that the representations and warranties set forth in Sections 3.1, 3.2 and 3.5 shall be true and correct in all material respects at and as of the date of this Agreement and the Closing Date as if made as of such date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoing. (bi) The Company shall have performed in all material respects all of its obligations hereunder required to be performed by it under this Agreement at or prior to the Closing Date. Effective Time and (ii ii) the representations and warranties of the Company that are qualified with reference to a Company Material Adverse Effect or materiality shall be true and correct and the representations and warranties of the Company that are not so qualified shall be true and correct in all material respects, in each case as of the date hereof, and, except to the extent such representations and warranties speak as of an earlier date, as of the Effective Time as though made at and as of the Effective Time. (b) Parent shall have received a certificate an opinion of Xxxxxx Xxxxxx & Xxxxxxx, counsel to Parent, dated on or about the Closing Date signed on behalf Date, and such other facts, representations and assumptions as counsel may reasonably deem relevant, to the effect that the Merger will be treated for federal income tax purposes as a reorganization qualifying under the provisions of Section 368(a) of the Code; that 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; and that no gain or loss will be recognized by a stockholder of the Company by on the chief executive officer or conversion of Company Common Stock into Parent ADSs pursuant to the chief financial officer Merger (except with respect to any cash received in lieu of a fractional share), provided that (i) Company complies with the reporting requirements contained in Treasury Regulation Section 1.367(a)-3(c)(6), (ii) the Company stockholder owns (including beneficial, indirect and constructive ownership) less than five percent of the total voting power and total value of Parent's outstanding stock immediately after the Merger, and (iii) the Company to stockholder complies with the effect notice requirements of Section 6038B of the foregoing.Code; and (c) There Since September 30, 1997, there shall not have occurred any eventmaterial adverse change in the general affairs, occurrence management, business, operations, assets or change that has had, condition (financial or would reasonably be expected to have, otherwise) of the Company (including loss of a Company Material Adverse Effectsignificant portion of the employees in the Company's research department). (d) No Action All the consents and approvals, and notifications and disclosures, and filings and registrations listed in Sections 3.05(b) and 4.05(b) hereof shall be pending by a Governmental Entity have been obtained. (ie) seeking to prevent consummation of Parent shall have received agreements, in substantially the Mergerform attached hereto as Exhibit 7.02, (ii) seeking to impose any limitation on the right of Parent to control the Company and its Subsidiaries or any other Affiliate of Parent, or (iii) seeking to restrain or prohibit the Company’s or Parent’s ownership or operation (or that of their respective Subsidiaries or Affiliates) of any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliates, or to compel the Company or Parent or any of their respective Subsidiaries or Affiliates restricting such individual's ability to dispose of or hold separate any portion Parent ADSs held by such individual for a period of one year from the business or assets of the Company or Parent or any of their respective Subsidiaries or AffiliatesEffective Date.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger are subject to the satisfaction (or waiver by Parent in its sole discretion) of the following further conditions: : (a) The 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 Effective Time, (b) the representations and warranties of the Company set forth contained in this Agreement (without regard to i) that are qualified by materiality or Company Material Adverse Effect qualifiers contained therein), shall be true and correct at and as of the date of this Agreement and the Closing Date Effective Time as if made at and as of such date time (except to the extent that such representations expressly made at and warranties refer specifically to an earlier as of another specific date, in which case such representations at and warranties shall have been true and correct as of such earlier specific date), except where the failure of the representations and warranties to be true and correct, individually (ii) that are not qualified by materiality or in the aggregate has not had and would not reasonably be expected to have a Company Material Adverse Effect; provided, that the representations and warranties set forth in Sections 3.1, 3.2 and 3.5 Effect shall be true and correct in all material respects at and as of the date of this Agreement and the Closing Date Effective Time as if made at and as of such time (except to the extent expressly made at and as of another specific date. , in which case at and as of such specific date), (c) Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief an executive officer or the chief financial officer of the Company to the effect foregoing effect, (d) Parent or Merger Sub shall have received the proceeds from the Debt Financing, or alternative financing sufficient to consummate the Merger, (e) Holders of not more than 10% of the foregoing. outstanding shares of Company Stock shall have exercised dissenters’ rights in accordance with Minnesota Law (bexcluding any holders who have exercised but have failed to properly perfect, or have otherwise lost, such rights prior to the Effective Time in accordance with Minnesota Law), (f) The the Company shall have performed in all material respects all obligations required delivered to be performed Parent certified copies of (i) the resolutions duly adopted by it under this Agreement at or prior to the Closing Date. Parent shall have received a certificate dated the Closing Date signed on behalf Board of Directors of the Company authorizing the execution, delivery and performance of this Agreement and the Merger and (ii) the resolutions duly adopted by the chief executive officer or Company’s shareholders adopting this Agreement, (g) the chief financial officer Company shall have delivered to Parent a certificate of the Company to the effect of that the foregoing. Company is not a U.S. real property holding company substantially in the form attached hereto as Exhibit B hereto, and (ch) There shall not have occurred any event, occurrence or change that has had, or would reasonably be expected to have, a no Company Material Adverse EffectEffect shall have occurred and be continuing. (d) No Action shall be pending by a Governmental Entity (i) seeking to prevent consummation of the Merger, (ii) seeking to impose any limitation on the right of Parent to control the Company and its Subsidiaries or any other Affiliate of Parent, or (iii) seeking to restrain or prohibit the Company’s or Parent’s ownership or operation (or that of their respective Subsidiaries or Affiliates) of any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliates, or to compel the Company or Parent or any of their respective Subsidiaries or Affiliates to dispose of or hold separate any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliates.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger are subject to the satisfaction (or valid waiver by Parent in its sole discretion) of the following further conditions: (a) The representations and warranties of the Company set forth in this Agreement (without regard to materiality or Company Material Adverse Effect qualifiers contained therein), shall be true and correct at and as of the date of this Agreement and the Closing Date as if made at and as of such 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 as of such earlier date), except where the failure of the representations and warranties to be true and correct, individually or in the aggregate has not had and would not reasonably be expected to have a Company Material Adverse Effect; provided, that the representations and warranties set forth in Sections 3.1, 3.2 and 3.5 shall be true and correct in all material respects at and as of the date of this Agreement and the Closing Date as if made as of such date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoing. (b) The Company shall have performed in all material respects all of its obligations hereunder required to be performed by it under this Agreement at or prior to the Closing Date. Effective Time; (b) the representations and warranties (i) set forth in Sections 4.2(a) through (c), 4.4 and 4.7 shall be true and correct in all respects (except for inaccuracies that are de minimis in the aggregate) as of the date of this Agreement and as of the Effective Time as if made at and as of such time and (ii) set forth in Article IV, other than those described in clause (i) above, shall be true and correct as of the date of this Agreement and as of the date of the Effective Time as if made at and as of such time (without giving effect to any materiality qualifications set forth therein), except in the case of this clause (ii) where the failure to be so true and correct does not constitute a Material Adverse Effect on the Company and except where the failure to be so true and correct relates to facts or circumstances of which any member of the Senior Management Team had knowledge as of the date hereof or should have had knowledge by reason of being a member of the Senior Management Team, provided that representations made as of a specific date shall be required to be so true and correct (subject to such qualifications) as of such date only; and (c) Parent and Merger Sub shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial a senior officer of the Company attesting to the effect of the foregoing.Section 7.2(a) and (b) above; (cd) There there shall not have occurred any event, occurrence or change that has had, or would reasonably be expected to have, a Company Material Adverse Effect.Effect on the Company other than Material Adverse Effect on the Company of which as of the date hereof any member of the Senior Management Team had knowledge or should have had knowledge by reason of being a member of the Senior Management Team; (de) No Action the Company shall be have delivered an affidavit satisfying the requirements of Treasury Regulation Section 1.1445-2(c)(3), in form and substance reasonably satisfactory to Parent, to Parent; (f) the aggregate number of shares of Common Stock at the Effective Time, the holders of which have demanded appraisal of their shares from the Company in accordance with the provisions of Section 262 of the DGCL, shall not equal 7.5% or more of the Common Stock outstanding as of the record date for the Stockholder Meeting; and (g) no material action, suit or proceeding is pending by a Governmental Entity (i) seeking to prevent in any court of competent jurisdiction which has the effect of preventing the consummation of the MergerFinancing on terms substantially similar to the terms set forth in the Financing Letters delivered pursuant to Section 6.4(a) hereof; provided that Parent has used commercially reasonable efforts to contest or resolve such action, (ii) seeking to impose any limitation on the right of Parent to control the Company and its Subsidiaries suit or any other Affiliate of Parent, or (iii) seeking to restrain or prohibit the Company’s or Parent’s ownership or operation (or that of their respective Subsidiaries or Affiliates) of any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliates, or to compel the Company or Parent or any of their respective Subsidiaries or Affiliates to dispose of or hold separate any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliatesproceeding.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger Contemplated Transactions are subject to the satisfaction (fulfillment at or waiver by Parent in its sole discretion) prior to the Effective Time of each of the following further additional conditions, any or all of which may be waived in writing in whole or part by Parent or Merger Sub to the extent permitted by applicable Law: (a) The representations and warranties of each of the Company set forth in this Agreement (without regard Companies and the Shareholders contained herein qualified as to materiality or Company Material Adverse Effect qualifiers contained therein), shall be true and correct in all respects and those not so qualified shall be true and correct in all material respects as of the date hereof and at and as of the date of this Agreement and the Closing Date as if though such representations and warranties were made at and as of such date (except to the extent that such for representations and warranties refer specifically to an earlier made as of a specified date, in which case such representations shall speak only as of the specified date). (b) Each of the Companies and warranties the Shareholders shall have been true performed or complied with in all material respects all agreements, covenants and correct as of such earlier date), except where conditions contained herein required to be performed or complied with by it prior to or at the failure time of the representations and warranties to be true and correctClosing. (c) Since the date of this Agreement, there shall not have been any event, change, effect, occurrence or circumstance that, individually or in the aggregate aggregate, has not had and or would not reasonably be expected to have a Company Material Adverse Effect; provided, that the representations and warranties set forth in Sections 3.1, 3.2 and 3.5 shall be true and correct in all material respects at and as of the date of this Agreement and the Closing Date as if made as of such date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoing. (b) The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoing. (c) There shall not have occurred any event, occurrence or change that has had, or would reasonably be expected to have, a Company Material Adverse Effect. (d) No Action The Companies and the Shareholders shall be pending by a Governmental Entity (i) seeking have delivered to prevent consummation Parent and Merger Sub certificates, dated the date of the MergerClosing, (ii) seeking to impose any limitation on the right signed by an executive officer of Parent to control the Company and its Subsidiaries or any other Affiliate of Parent, or (iii) seeking to restrain or prohibit the Company’s or Parent’s ownership or operation (or that of their respective Subsidiaries or Affiliates) of any portion each of the business or assets Companies and by the Shareholders, certifying as to the fulfillment of the conditions specified in Section 8.2(a), Section 8.2(b) and Section 8.2(c). (e) All of the Company or Parent or any of their respective Subsidiaries or Affiliates, or to compel the Company or Parent or any of their respective Subsidiaries or Affiliates to dispose of or hold separate any portion of the business or assets Consents set forth on Section 8.2(e) of the Company Disclosure Schedule shall have been obtained. (f) All proceedings of the Companies and the Shareholders that are required in connection with the Contemplated Transactions shall be reasonably satisfactory in form and substance to Parent and its counsel, and Parent and its counsel shall have received such evidence of any such proceedings, good standing certificates (if applicable), organizational and governing documents, certified if requested, as may be reasonably requested and is customary in transactions such as this one. (g) All shareholders agreements, voting agreements, registration rights agreements and similar agreements between or Parent or among any of their respective the Companies, the Subsidiaries and/or the Shareholders (other than the Registration Rights Agreement), and all other agreements set forth on Section 8.2(g) of the Company Disclosure Schedule, shall have been terminated and shall cease to be of force or Affiliateseffect.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger under this Agreement are subject to the satisfaction (satisfaction, at or waiver by Parent in its sole discretion) before the Closing, of each of the following further conditions: (a) The representations and warranties of the Company set forth in this Agreement (without regard BBT contained herein that are qualified as to materiality or Company Material Adverse Effect qualifiers contained therein), shall be true and correct at in all respects on and as of the date of this Agreement and the Closing Date (except for the representations and warranties made as if of a specific date which shall be true in all material respects as of such date) with the same force and effect as though made at on and as of such 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 as of such earlier date), except where the failure each of the representations and warranties to be true and correct, individually or in the aggregate has of BBT that are not had and would not reasonably be expected to have a Company Material Adverse Effect; provided, that the representations and warranties set forth in Sections 3.1, 3.2 and 3.5 so qualified shall be true and correct in all material respects at and as of the date of this Agreement and the Closing Date as if made as of such date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoingrespects. (b) The Company BBT shall have performed and complied in all material respects with all covenants, agreements, obligations and conditions required by this Agreement to be performed or complied with by it under this Agreement BBT at or prior to the Closing Date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoingClosing. (c) There shall not have occurred be threatened, instituted or pending any eventsuit, occurrence action, investigation, inquiry or change other proceeding by or before any court or governmental or other regulatory or administrative agency or commission requesting or looking toward an order, judgment or decree that has had(a) restrains or prohibits the consummation of the transactions contemplated hereby, or would could reasonably be expected to have, have a Company Material Adverse Effectmaterial adverse effect on Parent’s ability to exercise control over or manage BBT after the Closing or (c) could reasonably be expected to have a material adverse effect on the Business or BBT. (d) No Action On the Closing Date, there shall be pending no effective injunction, writ, preliminary restraining order or other order issued by a Governmental Entity court of competent jurisdiction restraining or prohibiting the consummation of the transactions contemplated hereby. (e) BBT shall have delivered to Parent a certificate, dated the Closing Date, executed by the Secretary of BBT, certifying as to (a) BBT’s certificate of incorporation, (b) BBT’s by-laws, (c) resolutions with respect to the transactions contemplated by this Agreement adopted by BBT’s board of directors and shareholders and attached to such certificate, and (d) incumbency and signatures of the persons who have executed this Agreement, the Related Agreements and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this Agreement or any of the Related Agreements on behalf of BBT. (f) Each of Xxxx Xxxxxxx and Xxxxxx Xxxxxxxxx shall have entered into an employment agreement with the Surviving Corporation (collectively, the “EMPLOYMENT AGREEMENTS”), substantially in the form of EXHIBIT B. (g) Each of Xxxx Xxxxxxx and Xxxxxx Xxxxxxxxx shall have entered into a lock-up agreement with Parent (collectively, the “LOCK-UP AGREEMENTS”), substantially in the form of EXHIBIT C. (h) BBT shall have furnished Parent with copies of the Ownership and Nondisclosure Agreements signed by each employee, officer, consultant or contractor of BBT identified on SCHEDULE 4.16(G). (i) seeking to prevent consummation of Parent shall have received stock certificates representing the Merger, Shares. (iij) seeking to impose any limitation on the right of Parent to control the Company and its Subsidiaries or any other Affiliate of Parent, or (iii) seeking to restrain or prohibit the Company’s or Parent’s ownership or operation (or that of their respective Subsidiaries or Affiliates) of any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliates, or to compel the Company or Parent or any of their respective Subsidiaries or Affiliates to dispose of or hold separate any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or AffiliatesNo material adverse change affecting BBT shall have occurred.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger are subject to the satisfaction (or waiver by Parent in its sole discretionand Merger Sub) of the following further conditions: (a) The each of the representations and warranties of the Company set forth in this Agreement shall be true and accurate as of the Closing Date as if made on and as of the Closing Date (other than those representations and warranties that address matters only as of a particular date or only with respect to a specific period of time, which representations and warranties need only be true and accurate as of such date or with respect to such period), except where the failure of such representations and warranties to be so true and accurate (without regard giving effect to any limitation relating to materiality or Company Material Adverse Effect qualifiers contained set forth therein), shall be true and correct at and as of the date of this Agreement and the Closing Date as if made at and as of such 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 as of such earlier date), except where the failure of the representations and warranties to be true and correct) would not, individually or in the aggregate has not had and would not aggregate, reasonably be expected to have a Company Material Adverse Effect; provided, that ; (b) the representations Company shall have complied with and warranties set forth in Sections 3.1, 3.2 and 3.5 shall be true and correct performed in all material respects its covenants and obligations hereunder required to be complied with or performed by it at and as of or prior to the date of this Agreement and the Closing Date as if made as of such date. Closing; (c) Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company Company, dated as of the Closing Date, to the effect that, to the knowledge of such officer, the foregoingconditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied; (d) from the date of this Agreement through the Effective Time there shall not have occurred a Company Material Adverse Effect; provided, however, a Company Material Adverse Effect shall not be deemed to have occurred solely for purposes of this Section 7.2(d) if the fact, change, event, factor, condition, circumstance, development or effect giving rise to such Company Material Adverse Effect has been fully remedied, such that no remaining impact therefrom is present, all as determined by Parent in good faith. (be) The Company Rights Agreement shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date. been terminated or, if not terminated, Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial an officer of the Company that such Rights Agreement does not apply to the effect of the foregoing.Merger; and (cf) There shall not have occurred any event, occurrence or change that has had, or would reasonably be expected to have, a Company Material Adverse Effect. (d) No Action shall be pending by a Governmental Entity (i) seeking to prevent consummation more than 15% of the Merger, (ii) seeking to impose any limitation on the right of Parent to control the Company and its Subsidiaries or any other Affiliate of Parent, or (iii) seeking to restrain or prohibit the Company’s or Parentshareholders shall have exercised dissenter’s ownership or operation (or that of their respective Subsidiaries or Affiliates) of any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliates, or to compel the Company or Parent or any of their respective Subsidiaries or Affiliates to dispose of or hold separate any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliatesrights.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger are subject to the satisfaction (or waiver by Parent in its sole discretion) of the following further conditions, any of which may be waived, in writing, exclusively by Parent: (a) The representations and warranties of the Company and the Company Subsidiary set forth in this Agreement (without regard Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Company Material Adverse Effect qualifiers contained therein)or any similar standard or qualification, shall be true and correct at and as of the date of this Agreement and the Closing Mandatory Approvals Receipt Date as if made at and as of such date (except to the extent that such for representations and warranties refer specifically to an earlier which address matters only as of a specified date, in which case such representations and warranties shall have been be true and correct as of such earlier with respect to the specified date), except where the failure of the such representations and warranties to be true and correctcorrect would not, individually or in the aggregate has not had and would not aggregate, reasonably be expected to have a Company Material Adverse Effect; provided, that Effect on the representations and warranties set forth in Sections 3.1, 3.2 and 3.5 shall be true and correct in all material respects at and as of Company or the date of this Agreement and the Closing Date as if made as of such dateCompany Subsidiary. Parent and Merger Sub shall have received a certificate dated as of the Closing Mandatory Approvals Receipt Date signed on behalf of the Company by the chief executive officer or the chief financial officer Chief Executive Officer and Chief Financial Officer of the Company to the effect of the foregoingforegoing effect. (b) The Company shall have performed or complied in all material respects with all obligations agreements and covenants required by this Agreement to be performed or complied with by it under this Agreement at or prior to the Closing DateEffective Time. Parent and Merger Sub shall have received a certificate signed by the Chief Executive Officer and Chief Financial Officer of the Company to the foregoing effect. (c) Parent shall have received opinions of Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP and Meitar Liquornik Geva & Leshem Xxxxxxxxx, counsel to the Company, dated the Effective Date in substantially the forms attached hereto as Exhibits E-1 and E-2, respectively. (d) The Company or the Company Subsidiary, as the case may be, shall have received all consents, authorizations or approvals from the governmental agencies referred to in Section 4.03 and Section 6.07, in each case in form and substance reasonably satisfactory to Parent, and no such consent, authorization or approval shall have been revoked. (e) The Stockholder Consents shall have been executed and delivered by the Stockholders listed on Annex A hereto and shall be in full force and effect. (f) Each of the Non-Competition and Non-Solicitation Agreements executed and delivered to Parent by the individuals listed on Annexes B-1 and B-2 on the date of this Agreement hereto shall be in full force and effect, and without any amendment thereto, immediately prior to the Effective Time. (g) (i) At least 17 of the total number of employees of the Company Subsidiary as of the date hereof shall continue to be employed by the Company Subsidiary in their respective positions as of the date hereof, including without limitation, (A) each of the individuals listed on Annex B-2 hereto that are employed by the Company Subsidiary and (B) Xxx Xxxx, and (ii) the individuals listed on Annex B-1 hereto employed by the Company shall continue to be employed by the Company in their respective positions as of the date hereof, and Parent shall have received a certificate signed by an officer of the Company to the foregoing effect. (h) Parent shall have received certified certificates of incorporation and bylaws, and good standing certificates in respect of the Company and the Company Subsidiary and certified board resolutions in respect of the transactions contemplated hereby, all in form and substance reasonably satisfactory to Parent. (i) The amendments to the Company’s certificate of incorporation as set forth in Schedule 4.01(b) shall have been filed with the Secretary of State of the State of Delaware and shall be in full force and effect. (j) The Company shall have delivered a certification pursuant to Treasury Regulations Sections 1.897-2(h) and 1.1445-2(c), signed by the Company and dated not more than 30 days prior to the Effective Time to the effect that the Company is not nor has it been within 5 years of the date of the certification a “United States real property holding corporation” as defined in Section 897 of the Code. (k) No Material Adverse Effect on the Company or the Company Subsidiary shall have occurred prior to the Mandatory Approvals Receipt Date and be continuing. (l) The Company shall have taken all actions required by Section 6.13(a) and Section 6.13(b). (m) Parent shall have received a certificate signed by the Chief Financial Officer of the Company setting forth the Estimated Company Cash Amount pursuant to Section 6.08. (n) The Company shall have paid all Transaction Expenses. Parent shall have received a certificate dated signed by the Closing Date signed on behalf Chief Financial Officer of the Company by setting forth the chief executive officer or Transaction Expenses incurred with respect to this Agreement and the chief transactions contemplated hereby. The Company and Company’s legal counsel, auditors, investment bankers and financial officer advisors shall have agreed to the amounts set forth in such certificate. Any additional Transaction Expenses exceeding the amounts set forth in such certificate shall be considered a Loss pursuant to Section 10.02 and shall be paid out of the Company Escrow Fund in accordance with the provisions set forth in Section 10.02; provided that such Transaction Expenses shall be recoverable from the first dollar and shall not be subject to the effect of the foregoingBasket Amount. (co) There The Company shall not have occurred any event, occurrence or change that has had, or would reasonably be expected obtained the written consent of Xxxxxx Xxxxxxx & Co. Incorporated to have, a Company Material Adverse Effect. (d) No Action shall be pending by a Governmental Entity (i) seeking the Merger pursuant to prevent consummation Section 18.5 of the MergerSoftware License and Development Agreement entered into as of June 30, (ii) seeking to impose any limitation on the right of Parent to control 2003 by and between the Company and its Subsidiaries or any other Affiliate of Parent, or (iii) seeking to restrain or prohibit the Company’s or Parent’s ownership or operation (or that of their respective Subsidiaries or Affiliates) of any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliates, or to compel the Company or Parent or any of their respective Subsidiaries or Affiliates to dispose of or hold separate any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or AffiliatesXxxxxx Xxxxxxx & Co. Incorporated.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger are subject to the satisfaction (or waiver by Parent in its sole discretion(where permissible) of the following further conditions: (a) The 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 Effective Time; (b) the representations and warranties of the Company set forth contained in this Agreement (without regard i) that are qualified by materiality or Company Material Adverse Effect, shall, in each case, be true and correct at and as of the Effective Time as if made at and as of such time (except to the extent expressly made at and as of another specific date, in which case at and as of such specific date), and (ii) that are not qualified by materiality or Company Material Adverse Effect qualifiers contained therein), shall be true and correct at and as of the date of this Agreement and the Closing Date Effective Time, as if made at and as of such date time (except to the extent that such representations expressly made at and warranties refer specifically to an earlier as of another specific date, in which case such representations at and warranties shall have been true and correct as of such earlier specific date), except where unless the failure of the such representations and warranties to be true and correct, individually or in the aggregate has not had and correct would not reasonably be expected to have a Company Material Adverse Effect; provided, that the representations and warranties set forth in Sections 3.1, 3.2 and 3.5 shall be true and correct in all material respects at and as of the date of this Agreement and the Closing Date as if made as of such date. ; (c) Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief an executive officer or the chief financial officer of the Company attesting to the effect satisfaction of the foregoing. conditions in subparagraphs (a) and (b) The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoing. (c) There shall not have occurred any event, occurrence or change that has had, or would reasonably be expected to have, a Company Material Adverse Effect.above; (d) No Action the Company shall be pending have delivered to Parent certified copies of the resolutions duly adopted by a Governmental Entity (i) seeking to prevent the Special Committee and Board of Directors of the Company, as the case may be, authorizing the execution, delivery and performance of this Agreement and the consummation of the Merger, ; (iie) seeking to impose any limitation on the right of Parent to control the no Company Material Adverse Effect shall have occurred; and (f) The Company and its Subsidiaries or any other Affiliate shall have, in the aggregate, no less than $179 million of Parent, or (iii) seeking to restrain or prohibit the Company’s or Parent’s ownership or operation (or that of their respective Subsidiaries or Affiliates) of any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliates, or to compel the Company or Parent or any of their respective Subsidiaries or Affiliates to dispose of or hold separate any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or AffiliatesReadily Available Cash.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger are is subject to the satisfaction (fulfillment at or waiver by Parent in its sole discretion) prior to the Effective Time of the following further conditions, any or all of which may be waived in whole or in part by Parent and Merger Sub to the extent permitted by applicable law: (a) The Company shall have obtained all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, referred to in Section 6.1 that are reasonably deemed necessary by Parent to consummate the Merger; (b) The representations and warranties of the Company set forth in this Agreement (without regard to materiality or Company Material Adverse Effect qualifiers contained therein), shall be true and correct at and as of the date of this Agreement and the Closing Date as if made at and as of such 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 as of such earlier date), except where the failure of the representations and warranties to be true and correct, individually or in the aggregate has not had and would not reasonably be expected to have a Company Material Adverse Effect; provided, that the representations and warranties set forth in Sections 3.1, 3.2 and 3.5 Section 6.2 shall be true and correct in all material respects at (except for representations qualified by materiality or Material Adverse Effect which shall be correct in all respects) as of the Effective Time, with the same force and effect as if made on and as of the date of this Agreement Effective Time, except for representations and the Closing Date as if warranties made as of a specific date, which shall be true and correct in all material respects (except for representations qualified by materiality or Material Adverse Effect which shall be correct in all respects) as of such specific date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoing.; (bc) The Company shall have performed or complied with in all material respects all obligations its agreements and covenants required to be performed by it or complied with under this Agreement at as of or prior to the Closing Date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoing. (c) There shall not have occurred any event, occurrence or change that has had, or would reasonably be expected to have, a Company Material Adverse Effect.Effective Time; and (d) No Action From the date of this Agreement to the Effective Time, there shall not have been any event or development which results in a Material Adverse Effect upon the business of the Company, nor shall there have occurred any event or development which could reasonably be pending by likely to result in a Governmental Entity Material Adverse Effect upon the business of the Company in the future. (ie) seeking to prevent A final draft of a Current Report on Form 8-K (the “Super 8-K”), which discloses the consummation of the Merger, (iiand which also includes all information required to be reported with respect to a “reverse merger” transaction with a public “shell company” including, without limitation, the information required pursuant to Item 2.01(f) seeking to impose any limitation on the right – Completion of Parent to control Acquisition or Disposition of Assets and Item 5.06 – Change in Shell Company Status - shall have been prepared by the Company and its Subsidiaries or any other Affiliate of Parent, or (iii) seeking to restrain or prohibit the Company’s or Parent’s ownership or operation (or that of approved by Parent and their respective Subsidiaries or Affiliateslegal advisors, to be filed with the SEC within four (4) of any portion business days after the Closing. (f) Parent shall be satisfied that the issuance of the business or assets Parent Common and the assumption of the Company or Parent or any Options in connection with the Merger shall be exempt from registration under Regulation D of their respective Subsidiaries or Affiliatesthe Securities Act and Section 4(2) of the Securities Act, or Regulation S promulgated by the SEC, and all applicable state securities laws. (g) Company shall prepare and, subject to compel the Company or Parent or any of their respective Subsidiaries or Affiliates to dispose of or hold separate any portion Parent’s approval of the business form and substance thereof (which approval shall not be unreasonably withheld or assets delayed), Parent shall file with the SEC the information required by Rule 14f-1 promulgated under the Exchange Act, in connection with the proposed change in the directors serving on the Board of Directors of Parent after the Company or Parent or any Merger, and shall mail such information as required, to each of their respective Subsidiaries or AffiliatesCompany’s stockholders prior to the Closing.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger Transactions are subject to the satisfaction (or waiver by Parent in its sole discretion) of the following further conditionsconditions on or before the Closing Date: (a) The the representations and warranties of the Company set forth contained in this Agreement (without regard to materiality or Company Material Adverse Effect qualifiers contained therein), shall Article 3 will be true and correct at and as of the time of the Closing as if made on the Closing Date and the Closing Date were substituted for the date of this Agreement throughout such representations and the Closing Date as if made at and as of such date warranties, except (except i) to the extent that the failure of such representations and warranties refer specifically to an earlier datebe true and correct has not caused a Material Adverse Effect, and (ii) for those representations and warranties that address matters as of any other particular date (in which case such representations and warranties shall have been true and correct as of such earlier particular date), except where to the extent that the failure of the such representations and warranties to be have been true and correct, individually or in the aggregate correct as of such particular date has not had and would not reasonably be expected to have caused a Company Material Adverse Effect; provided), that it being understood that, for purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other qualifications based on the word “material” or similar phrases contained in such representations and warranties shall be disregarded (except for purposes of the representations set forth in Sections 3.13.12, 3.2 3.16(g) and 3.5 shall be true and correct in all material respects at and as of the date of this Agreement and the Closing Date as if made as of such date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoing.3.16(1)); (b) The the Company shall have performed in all material respects all obligations of the covenants and agreements required to be performed by it under this Agreement at or prior to the Closing Date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoing.Closing; (c) There the Company shall not have occurred any event, occurrence or change that has had, or would reasonably be expected to have, a Company Material Adverse Effect.obtained the Requisite Stockholder Approval; (d) No Action the applicable waiting periods, if any, under the HSR Act shall have expired or been terminated; (e) no temporary restraining order, preliminary or permanent injunction or other judgment or order issued by a court or agency of competent jurisdiction or other Law shall be pending by a Governmental Entity threatened, pending, shall have been issued or shall be in effect which prohibits, restrains or renders illegal the consummation of the Transactions or would cause the Transactions to be rescinded; (f) the Stockholders’ Representative and the Paying Agent shall have executed and delivered the Paying Agent Agreement; (g) the Company shall have delivered the Payout Spreadsheet to Parent and the Paying Agent; (h) the Stockholders’ Representative and the Escrow Agent shall have executed and delivered the Escrow Agreement; (i) seeking the Company shall have delivered to prevent consummation of Parent a certificate, dated the MergerClosing Date, (iistating that the preconditions specified in Sections 8.0l(a), 8.01(b), and 8.01(1) seeking as they relate to impose any limitation on the right of Parent to control the Company and its Subsidiaries or any other Affiliate Subsidiaries, have been satisfied; (j) the number of Parent, or Dissenting Shares shall not exceed 2.0% of the sum of Total Outstanding Series A Preferred Shares and total outstanding shares of Company Common Stock as of the date hereof; (iiik) seeking to restrain or prohibit the Company’s or Parent’s ownership or operation (or that of their respective Subsidiaries or AffiliatesCompany shall have obtained the third-party consents set forth in Section 8.01(k) of any portion the Disclosure Schedule; (1) since the date of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliatesthis Agreement, or to compel the Company or Parent or any of their respective Subsidiaries or Affiliates to dispose of or hold separate any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliates.no event shall have occurred which has had a Material Adverse Effect;

Conditions to the Obligations of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub to effect the Merger are is subject to the satisfaction (or waiver by Parent in its sole discretion) at or prior to the Effective Time of the following further conditions: (a) The representations and warranties of the Company set forth contained in this Agreement (without regard to materiality or Company Material Adverse Effect qualifiers contained therein), shall must be true and correct at in all respects (without giving effect to any materiality qualifications or limitations therein or any references therein to Company Material Adverse Effect), both when made and on and as of the date of this Agreement Effective Time with the same effect as though such representations and the Closing Date as if warranties had been made at and as of such date (the Effective Time, except to the extent that such representations and warranties expressly refer specifically to an a specific earlier date, in which case such representations and warranties shall have been must be true and correct in all respects (without giving effect to any materiality qualifications or limitations therein or any references therein to Company Material Adverse Effect) as of such earlier date)date (in either case, (i) except where the failure of the representations and warranties to be true and correctfor such failures which, individually or in the aggregate has aggregate, do not had have, and would not reasonably be expected to have cause, a Company Material Adverse Effect; provided, that the representations Effect and warranties set forth in Sections 3.1, 3.2 and 3.5 shall be true and correct (ii) taking into account any changes permitted by this Agreement); (b) Company must have performed or complied in all material respects at with all agreements and as of the date of covenants required by this Agreement to be performed or complied with by it on or prior to the Effective Time; (c) Each Company Option shall have been amended, and the Closing Date Company shall have received the written consents and agreements from the holders thereof, as if made contemplated by Section 3.2; (d) The conversion, or full and complete payment, of all amounts due and payable pursuant to the Company Notes shall have occurred as of such date. contemplated by Section 3.3; (e) Each Company Warrant shall be purchased by the Parent shall or otherwise terminated in accordance with its terms as contemplated by Section 3.4; (f) Parent must have received a certificate dated the Closing Date and signed on behalf of the Company by the chief executive officer President or the chief financial officer any Vice President of the Company in his capacity as such to the effect that each condition specified in Sections 8.2(a), (b), (d), (e), (c), (i) and (j) has been satisfied in all respects; (g) Company must have delivered to Parent copies of all resolutions of Company’s board of directors authorizing the transactions contemplated by this Agreement, certified by Company’s Secretary or Assistant Secretary as being true, complete, correct and in full force and effect; (h) The dissenting shares shall comprise not more than 10% of the foregoing.issued and outstanding Company Common Stock; and (bi) Company shall have terminated each of the consulting agreements between the Company (or its Affiliates) with Bxxx X. Xxxxxx and Jxxxx X. Xxxxxxx; and (j) The Company shall have performed in caused, at no out-of-pocket cost or expense to the Company (other than the payment of applicable filing fees), all material respects all obligations required the Nonpermitted Liens to be performed by it under this Agreement at or prior released and terminated to the Closing Date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoing. (c) There shall not have occurred any event, occurrence or change that has had, or would reasonably be expected to have, a Company Material Adverse Effect. (d) No Action shall be pending by a Governmental Entity (i) seeking to prevent consummation of the Merger, (ii) seeking to impose any limitation on the right of Parent to control the Company and its Subsidiaries or any other Affiliate reasonable satisfaction of Parent, or (iii) seeking to restrain or prohibit the Company’s or Parent’s ownership or operation (or that of their respective Subsidiaries or Affiliates) of any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliates, or to compel the Company or Parent or any of their respective Subsidiaries or Affiliates to dispose of or hold separate any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliates.

Conditions to the Obligations of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub to effect the Merger are is subject to the satisfaction (at or waiver by Parent in its sole discretion) prior to the Effective Time of the following further conditions: (a) The Company shall have performed in all material respects its obligations under this Agreement required to be performed by it at or prior to the Effective Time, and Parent shall have received a certificate signed on behalf of Company by a duly authorized officer of the Company to such effect. (b) Each of the representations and warranties of the Company set forth contained in this Agreement (without regard giving effect to any materiality qualifications or limitations therein or any references therein to Company Material Adverse Effect qualifiers contained thereinEffect), shall be true and correct at correct, in each case as of the Effective Time as though made on and as of the date of this Agreement and the Closing Date as if made at and as of such 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 as of such earlier date)Effective Time, except where the failure of the representations and warranties to be true and correct(i) for such failures, individually or in the aggregate has not had aggregate, to be true and correct that would not reasonably be expected to have a Company Material Adverse Effect; provided, (ii) that the those representations and warranties set forth in Sections 3.1, 3.2 and 3.5 that address matters only as of a particular date shall be remain true and correct in all material respects at and as of the date of this Agreement and the Closing Date as if made as of such date. , subject to the qualifications in (i) above; and (iii) for changes expressly permitted as contemplated by the terms of this Agreement, and Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial a duly authorized officer of the Company to the effect of the foregoing. (b) The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoingsuch effect. (c) There From the date of this Agreement through the Effective Time, there (i) shall not have occurred any eventchange in the financial condition, occurrence business or change operations of Company and its Subsidiaries, taken as a whole, that has had, or would reasonably be expected to have, constitute a Company Material Adverse EffectEffect and (ii) shall not have occurred any change in the capitalization of the Company from that set forth in Section 4.2, other than as required by the terms of this Agreement. (d) No Action Company shall be pending have provided to Parent on the Closing Date, documentation evidencing Company’s compliance with its obligations set forth under Section 6.1(n). (e) The number of shares of Company Common Stock held by a Governmental Entity holders who either (i) seeking have exercised their right to prevent consummation of the Merger, dissent and obtain payment for their shares or (ii) seeking retain the ability to impose any limitation on the exercise such right of Parent to control the Company dissent and its Subsidiaries or any other Affiliate of Parent, or (iii) seeking to restrain or prohibit the Company’s or Parent’s ownership or operation (or that of their respective Subsidiaries or Affiliates) of any portion obtain payment shall not exceed 1.0% of the business or assets outstanding shares of the Company or Parent or any of their respective Subsidiaries or Affiliates, or to compel the Company or Parent or any of their respective Subsidiaries or Affiliates to dispose of or hold separate any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or AffiliatesCommon Stock.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger Contemplated Transactions are subject to the satisfaction (fulfillment at or waiver by Parent in its sole discretion) prior to the Closing of each of the following further additional conditions, any or all of which may be waived in writing in whole or part by Parent or Merger Sub to the extent permitted by applicable Law: (a) The representations and warranties of the Company set forth in this Agreement (without regard and of each of the Shareholders contained herein qualified as to materiality or Company Material Adverse Effect qualifiers contained therein), shall be true and correct in all respects and those not so qualified shall be true and correct in all material respects as of the date hereof and at and as of the date of this Agreement and the Closing Date as if though such representations and warranties were made at and as of such date (except to the extent that such for representations and warranties refer specifically to an earlier made as of a specified date, in which case such representations shall speak only as of the specified date). (b) Each of the Company and warranties the Shareholders shall have been true performed or complied with in all material respects all agreements, covenants and correct as of such earlier date), except where conditions contained herein required to be performed or complied with by it prior to or at the failure time of the representations and warranties to be true and correctClosing. (c) Since the date of this Agreement, there shall not have been any event, change, effect, occurrence or circumstance that, individually or in the aggregate aggregate, has not had and or would not reasonably be expected to have a Company Material Adverse Effect; provided. (d) The Company and the Shareholders shall have delivered to Parent and Merger Sub certificates, that the representations and warranties set forth in Sections 3.1, 3.2 and 3.5 shall be true and correct in all material respects at and as of dated the date of this Agreement and the Closing Date as if made as of such date. Parent shall have received a certificate dated the Closing Date Closing, signed on behalf of the Company by the chief an executive officer or the chief financial officer of the Company and by the Shareholders, certifying as to the effect fulfillment of the foregoingconditions specified in Section 8.2(a), Section 8.2(b) and Section 8.2(c). (be) All of the Company Consents set forth on Section 8.2(e) of the Company Disclosure Schedule shall have been obtained. (f) The Nadaud Intellectual Property Transfer shall have been completed. (g) The Company shall have performed delivered to Parent such audited and unaudited financial statements for the Company and the Subsidiaries, prepared in all material respects all obligations accordance with GAAP, as are required to be performed filed by it under this Agreement at or prior Parent with its Current Report on Form 8-K in connection with the consummation of the Contemplated Transactions. (h) All proceedings of the Company, the Subsidiaries and the Shareholders that are required in connection with the Contemplated Transactions shall be reasonably satisfactory in form and substance to the Closing Date. Parent and its counsel, and Parent and its counsel shall have received a certificate dated such evidence of any such proceedings, good standing certificates (if applicable), organizational and governing documents, certified if requested, as may be reasonably requested and is customary in transactions such as this one. (i) All shareholders agreements, voting agreements, registration rights agreements and similar agreements between or among any of the Closing Date signed Company, the Subsidiaries, the Shareholders and/or any of their respective Affiliates (other than the Registration Rights Agreement), and all other agreements set forth on behalf Section 8.2(i) of the Company by the chief executive officer Disclosure Schedule, shall have been terminated, without any further liability or the chief financial officer of the Company to the effect of the foregoing. (c) There shall not have occurred any event, occurrence or change that has had, or would reasonably be expected to have, a Company Material Adverse Effect. (d) No Action shall be pending by a Governmental Entity (i) seeking to prevent consummation of the Merger, (ii) seeking to impose any limitation on the right of Parent to control the Company and its Subsidiaries or any other Affiliate of Parent, or (iii) seeking to restrain or prohibit the Company’s or Parent’s ownership or operation (or that of their respective Subsidiaries or Affiliates) obligation of any portion of the business or assets of the Company or Parent the Subsidiaries thereunder, and shall cease to be of force or any of their respective Subsidiaries or Affiliates, or to compel the Company or Parent or any of their respective Subsidiaries or Affiliates to dispose of or hold separate any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliateseffect.

Conditions to the Obligations of Parent and Merger Sub. The respective obligations of Parent and Merger Sub to effect the Merger are subject to the satisfaction (at or waiver by Parent in its sole discretion) prior to the Effective Time of the following further conditions: (a) The the representations and warranties of the Company set forth contained in this Agreement (without regard to materiality or Company Material Adverse Effect qualifiers contained therein), Article III shall be true and correct at and as of the date of this Agreement and the Closing Date as if made at and as of such date the Closing (except to the extent that such for representations and warranties refer specifically that expressly relate to an earlier date, in a specific date prior to the Closing which case such representations and warranties shall have been need only be true and correct as of such earlier date); provided, except where the failure of however, that this condition shall be deemed satisfied unless any and all inaccuracies in the representations and warranties contained in Article III, in the aggregate, result in a Material Adverse Effect on the Company (ignoring for the purposes of this Section any qualifications by Material Adverse Effect or otherwise by material adversity and any materiality qualification or words of similar import contained in such representations or warranties), and, at the Closing, the Company shall have delivered to Parent a certificate signed by its chief executive officer and chief financial officer to that effect; (b) each of the covenants and obligations of the Company to be true and correct, individually performed at or in before the aggregate has not had and would not reasonably be expected Effective Time pursuant to the terms of this Agreement shall have a Company Material Adverse Effect; provided, that the representations and warranties set forth in Sections 3.1, 3.2 and 3.5 shall be true and correct been duly performed in all material respects at or before the Effective Time and, at the Closing, the Company shall have delivered to Parent a certificate signed by its chief executive officer and as of chief financial officer to that effect; (c) no Material Adverse Effect on the Company shall have occurred since the date of this Agreement, and, at the Closing, the Company shall have delivered to Parent a certificate signed by its chief executive officer and chief financial officer to that effect; (d) the Escrow Agreement substantially in the form of Exhibit C hereto, shall have been duly executed and delivered by the Holder Representative and the Closing Date as if made as Escrow Agent; (e) the holders of such date. not more than 5% of the outstanding shares of Common Stock and Preferred Stock (calculated, with respect to the Preferred Stock, on an as-converted basis) in the aggregate shall have exercised their appraisal rights in accordance with Section 262 of the DGCL; (f) the Company shall have delivered to Parent (i) the statement of Estimated Net Working Capital, pursuant to Section 2.12(b), (ii) the Net Debt Notice, pursuant to Section 2.12(c) and (iii) the Company Transaction Expense Notice, pursuant to Section 2.12(d); (g) the Company shall have delivered to Parent the payoff letters and UCC-3 termination statements pursuant to Section 2.12(e); and (h) Parent shall have received a certificate dated letters of resignation from the Closing Date signed on behalf directors of the Company by the chief executive officer or the chief financial officer of the Company Company, in form reasonably acceptable to the effect of the foregoingParent. (b) The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoing. (c) There shall not have occurred any event, occurrence or change that has had, or would reasonably be expected to have, a Company Material Adverse Effect. (d) No Action shall be pending by a Governmental Entity (i) seeking to prevent consummation of the Merger, (ii) seeking to impose any limitation on the right of Parent to control the Company and its Subsidiaries or any other Affiliate of Parent, or (iii) seeking to restrain or prohibit the Company’s or Parent’s ownership or operation (or that of their respective Subsidiaries or Affiliates) of any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliates, or to compel the Company or Parent or any of their respective Subsidiaries or Affiliates to dispose of or hold separate any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliates.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger Mergers are subject to the satisfaction (or waiver by Parent in its sole discretionand Merger Sub) of the following further conditions: (a) The (i) the representations and warranties of the Company set forth in this Agreement Sections 3.1 (without regard to materiality or Company Material Adverse Effect qualifiers contained thereinexcluding Section 3.1(d)), 3.2, 3.3(b) (but only clause (i) thereof), 3.4, 3.18 and 3.20 shall be true and correct at accurate in all respects (except for any de minimis inaccuracies) both when made and as of the date of this Agreement and the Closing Date as if made at and as of such date (except to the extent that such other than those representations and warranties refer specifically that address matters only as of a particular date or only with respect to an earlier datea specific period of time, in which case such representations and warranties shall have been need only be so true and correct accurate as of such earlier datedate or with respect to such period), except (ii) the representations and warranties of the Company set forth in Section 3.6(b) shall be true and accurate in all respects both when made and as of the Closing Date as if made at and as of such date (other than those representations and warranties that address matters only as of a particular date or only with respect to a specific period of time, which representations and warranties need only be so true and accurate as of such date or with respect to such period) and (iii) all other representations and warranties of the Company set forth in Article III shall be true and accurate in all respects (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” set forth therein) both when made and as of the Closing Date as if made at and as of such date (other than those representations and warranties that address matters only as of a particular date or only with respect to a specific period of time, which representations and warranties need only be so true and accurate as of such date or with respect to such period) except, in the case of this clause (iii), where the failure of the such representations and warranties to be so true and correctaccurate would not, individually or in the aggregate has not had and would not reasonably be expected to aggregate, have a Company Material Adverse Effect; provided, that the representations and warranties set forth in Sections 3.1, 3.2 and 3.5 shall be true and correct in all material respects at and as of the date of this Agreement and the Closing Date as if made as of such date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoing.; (b) The the Company shall have performed in all material respects all its obligations hereunder required to be performed by it under this Agreement at or prior to the Closing Date. Closing; (c) since the date of this Agreement, there shall not have occurred and be continuing any Company Material Adverse Effect; (d) Parent shall have received a certificate signed by an executive officer of the Company, dated as of the Closing Date signed on behalf Date, to the effect that the conditions set forth in Section 6.2(a), Section 6.2(b) and Section 6.2(c) have been satisfied; (e) the Administration Agreement and the Investment Advisory Agreement shall have been terminated; (f) Parent shall have received the written opinion of Xxxxxxx Xxxxxxx and Xxxxxxxx LLP, or another nationally recognized Tax counsel reasonably satisfactory to the Company (which may include outside counsel to the Company), dated as of the Closing Date, to the effect that the Mergers, taken together, will qualify as a “reorganization” within the meaning of Section 368(a) of the Code. In rendering the opinion described in this Section 6.2(f), the Tax counsel rendering such opinion may require and rely upon (and may incorporate by reference) reasonable and customary representations and covenants, including those contained in certificates of officers of the Company by and Parent; (g) the chief executive officer or Company shall have provided evidence satisfactory to Parent that each of the chief financial officer CLO Conditions (as defined in Section 6.2(g) of the Company Disclosure Letter) has been satisfied; provided, that if the Closing has not occurred prior to the effect November 23, 2020, each of the foregoing. (c) There shall not have occurred any eventCLO Conditions will be deemed satisfied upon the occurrence of a Payoff Event. For purposes of this Agreement, occurrence or change that has had, or would reasonably be expected to have, a Company Material Adverse Effect. (d) No Action shall be pending by a Governmental Entity (i) seeking to prevent consummation “Payoff Event” means the redemption in whole of the MergerNotes outstanding under the Indenture, (ii) seeking to impose any limitation on the right of Parent to control the Company in compliance with Sections 9.2 and its Subsidiaries or any other Affiliate of Parent, or (iii) seeking to restrain or prohibit the Company’s or Parent’s ownership or operation (or that of their respective Subsidiaries or Affiliates) of any portion 9.4 of the business Indenture, on or assets of the Company or Parent or any of their respective Subsidiaries or Affiliatesafter November 23, or to compel the Company or Parent or any of their respective Subsidiaries or Affiliates to dispose of or hold separate any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliates.2020;

Conditions to the Obligations of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub to effect the Merger are is also subject to the satisfaction (or waiver by Parent in its sole discretion) writing if permissible under applicable Law), at or prior to the Effective Time, of the following further conditions: (a) (i) The representations and warranties of the Company set forth contained in this Agreement Section 3.2 (without regard to materiality or Company Material Adverse Effect qualifiers contained therein), Capitalization) shall be true and correct at and as of the date of this Agreement and on and as of the Closing Date as if made at on and as of such date date; (ii) the representations and warranties of the Company contained in Section 3.1 (Corporate Organization), Section 3.3 (Authority), Section 3.9 (Broker’s Fees), Section 3.18 (State Takeover Laws) and Section 3.25 (Disclosure Documents) shall be true and correct in all material respects as of the Closing Date as though made on the Closing Date (except to the extent that such representations and warranties refer specifically expressly relate to an earlier datea specific date or as of the date hereof, in which case such representations and warranties shall have been true and correct as of such earlier date), except where the failure of the representations and warranties to be true and correct, individually or in the aggregate has not had and would not reasonably be expected to have a Company Material Adverse Effect; provided, that the representations and warranties set forth in Sections 3.1, 3.2 and 3.5 shall be true and correct in all material respects at as of such date); and (iii) each of the representations and warranties of the Company contained in this Agreement (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” or similar terms set forth therein) (other than those contained in the preceding clauses (i) and (ii)) shall be true and correct as of the Closing Date as though made on the Closing Date (except to the extent such representations and warranties expressly relate to a specific date or as of the date of this Agreement hereof, in which case such representations and the Closing Date as if made warranties shall be true and correct as of such date), except where the failure to be so true and correct does not have, and would not reasonably be expected to have, individually or in the aggregate with respect to all such failures, a Company Material Adverse Effect. Parent and Merger Sub shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer Chief Executive Officer or President and the chief financial officer Chief Financial Officer of the Company to the effect of the foregoingsuch effect. (b) The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date. , and Parent and Merger Sub shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer Chief Executive Officer or President and the chief financial officer Chief Financial Officer of the Company to the effect of the foregoingsuch effect. (c) There shall not be pending or threatened any suit, action or proceeding, in each case, by any Governmental Authority or any third party, including any actions by one or more Company Stockholders, seeking damages or other amounts in connection with, or to restrain, preclude, enjoin or prohibit, the Merger or any of the other transactions contemplated by this Agreement; (d) Between the date of this Agreement and the Closing Date, there shall not have occurred any eventCircumstance which individually or in the aggregate with all other Circumstances has had or would reasonably be expected to have a Company Material Adverse Effect. Parent and Merger Sub shall have received a certificate signed by the Chief Executive Officer or President and Chief Financial Officer of Company to such effect; (e) The Company shall have redeemed the Series B Preferred Stock in accordance with Section 1.5; (f) There shall not have occurred and be continuing any general suspension of, occurrence or change limitation on trading in securities on NASDAQ (other than a shortening of trading hours or any coordinated trading halt triggered solely as a result of a specified increase or decrease in a market index); and (g) Parent shall have received the opinion of King & Spalding LLP, counsel to Parent, dated the Closing Date, to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to Parent shall be entitled to rely upon customary assumptions and representations provided by Parent and the Company that counsel to Parent reasonably deems relevant. (h) Parent shall have received the Mayo Non-Compete and Non-Solicit Agreement. (i) There shall not have occurred (i) a Security Breach which, either individually or collectively with all related breaches, has hadresulted in, or would reasonably be expected to haveresult in, losses, damages, claims, costs, expenses, interest, awards, judgments or penalties to the Company of more than $1,000,000 (a Company “Material Adverse EffectSecurity Breach”) or (ii) any facts, circumstances or events that would reasonably be expected to result in a Material Security Breach. (dj) No Action Parent shall have received a properly executed statement, issued by the Company pursuant to Treasury Regulation Sections 1.897-2(h) and 1.1445-2(c)(3) dated no more than thirty (30) days prior to the Closing Date and signed by an officer of the Company, and in form and substance reasonably satisfactory to Parent, certifying that interests in the Company, including shares of Company Common Stock, do not constitute “United States real property interests” under Section 897(c) of the Code, and the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulation Section 1.897-2(h)(2). (k) Parent shall have acquired one hundred percent (100%) of the Start Media Joint Venture pursuant to the terms and conditions set forth in the Start Media Purchase Agreement. (l) The Company shall have obtained, in form and substance satisfactory to Parent, the third party consents set forth on Schedule 7.2(l), and all such consents shall be pending by in full force and effect at the Closing. (m) The Company shall have cancelled and terminated, in form and substance satisfactory to Parent, the third party agreements set forth on Schedule 7.2(m). (n) There shall not have occurred a Governmental Entity material adverse change to the net debt or working capital amounts set forth in the Company Balance Sheet (except for changes related to (i) seeking to prevent consummation of the MergerPipeline Transactions, (ii) seeking to impose any limitation on the right of Parent to control payments by the Company and its Subsidiaries or any other Affiliate of Parentunder outstanding loan agreements, or (iii) seeking to restrain or prohibit the redemption of the Series B Preferred Stock in accordance with this Agreement and (iv) the occurrence of capital expenditures by the Company’s or , in each case, to the extent permitted by this Agreement). (o) The Company Board shall have adopted resolutions terminating, effective immediately prior to the Closing, the pension plan sponsored by the Company that is intended to meet the requirements of Section 401(k) of the Code (the “401(k) Plan”), and the Company shall have (i) taken all actions reasonably requested by Parent to ensure that the 401(k) Plan is in compliance with all applicable requirements of the Code and regulations thereunder for all periods through the date of its termination and is eligible to receive a favorable determination letter from the IRS with respect to its termination and (ii) submitted an application to the IRS under the Voluntary Compliance Program, following Parent’s ownership or operation (or that review and approval of their respective Subsidiaries or Affiliatessuch application, to correct any operational failures identified by Parent with respect to the 401(k) of any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliates, or to compel the Company or Parent or any of their respective Subsidiaries or Affiliates to dispose of or hold separate any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or AffiliatesPlan.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger are shall be subject to the satisfaction (fulfillment at or waiver by Parent in its sole discretion) prior to the Effective Time of each of the following further conditions:conditions (any of which may be waived by Parent or Merger Sub): (a) The (i) Each of the representations and warranties of the Company set forth in this Agreement Section 4.1 (Organization and Qualification; Subsidiaries), Section 4.2 (Authority; Board Approval) and Section 4.22 (Brokers) (in each case without regard giving effect to materiality or Company any qualification as to “material,” “materiality,” “material respects,” “Material Adverse Effect qualifiers contained Effect” or words of similar import or effect set forth therein), ) shall be true and correct at and in all but de minimis respects, in each case as of the date of this Agreement and the Closing Date with the same effect as if though made at and as of such date (except to the extent that such representations and warranties refer specifically to an earlier address matters only as of a specified date, in the accuracy of which case shall be determined as of such specified date), (ii) each of the representations and warranties set forth in Section 4.4 (Capitalization) (in each case without giving effect to any qualification as to “material,” “materiality,” “material respects,” “Material Adverse Effect” or words of similar import or effect set forth therein) shall have been be true and correct in all material respects, in each case as of the Closing Date with the same effect as though made at and as of such earlier date (except to the extent that such representations address matters only as of a specified date, the accuracy of which shall be determined as of such specified date), and (iii) each of the other representations and warranties set forth in Article IV (in each case without giving effect to any qualification as to “material,” “materiality,” “material respects,” “Material Adverse Effect” or words of similar import or effect set forth therein) shall be true and correct in all respects as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of the specified date), except where the failure of the such representations and warranties to be true and correct, individually or in the aggregate has correct would not had have (and would not reasonably be expected to have have) a Company Material Adverse Effect; provided, that the representations and warranties set forth in Sections 3.1, 3.2 and 3.5 . (b) Shift shall be true and correct have performed or complied in all material respects at with all agreements, covenants and conditions required by this Agreement to be performed or complied with by Shift on or prior to the Closing Date. (c) No Material Adverse Effect shall have occurred and be continuing. (d) Shift shall have delivered a certificate, dated as of the Closing Date and signed by an authorized representative of such Company Entity, that each of the conditions set forth in Section 7.2(a) through Section 7.2(c) have been satisfied. (e) The PPP Loans shall have been, or shall be substantially concurrently with the Closing on the Closing Date, repaid in full. (f) The Company shall have delivered to Parent a certificate on behalf of the Company, prepared in a manner consistent and in accordance with the requirements of Treasury Regulation Sections 1.897-2(g), (h) and 1.1445-2(c)(3), certifying that no interest in the Company is, or has been during the relevant period specified in Section 897(c)(1)(A)(ii) of the Code, a “U.S. real property interest” within the meaning of Section 897(c) of the Code, and a form of notice to the Internal Revenue Service prepared in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2). (g) Shift shall have delivered to Parent copies of the following, each certified by an authorized officer of Shift to be true, correct, complete and in full force and effect as of the Closing Date: (i) the certificate of incorporation or formation of each Company Entity, certified by the Secretary of State or other appropriate Governmental Authority of its jurisdiction of organization or incorporation, as applicable; (ii) the bylaws or operating agreement of each Company Entity; and (iii) the resolutions of the Shift Board authorizing and approving this Agreement, any applicable Ancillary Agreement and all of the transactions contemplated hereby and thereby. (h) Shift shall have delivered to Parent duly executed counterpart signature page to the Stockholders Letter Agreement from each director and officer of Shift as of the date of this Agreement and the Closing Date as if made as of such date. Parent shall have received a certificate dated immediately prior to the Closing Date signed on behalf Effective Time, each Stockholder holding five percent (5%) or more of the Company by the chief executive officer or the chief financial officer Shift Shares (on an as-converted to common stock basis), and Stockholders who together hold eighty percent (80%) of the Company Shift Shares (on an as-converted to the effect of the foregoingcommon stock basis). (bi) The Company Shift shall have performed in all material respects all obligations required received, and delivered to be performed by it under this Agreement at or Parent, an election to exercise the Designated Warrant from the holder thereof, effective as of a time and date prior to the Closing Date. Parent Effective Time, and the Shift Shares issuable upon exercise thereof shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoingbeen duly authorized and issued and shall be fully paid and non-assessable. (cj) There Shift shall not have occurred any eventdelivered to Parent the notice of exercise and termination set forth in Section 2.10(c), occurrence or change that has hadthe Written Consent and the terminations set forth in Section 6.20(b), or would reasonably be expected to have, a Company Material Adverse Effect. (d) No Action and each such item shall be pending by a Governmental Entity (i) seeking to prevent consummation of the Merger, (ii) seeking to impose any limitation on the right of Parent to control the Company in full force and its Subsidiaries or any other Affiliate of Parent, or (iii) seeking to restrain or prohibit the Company’s or Parent’s ownership or operation (or that of their respective Subsidiaries or Affiliates) of any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliates, or to compel the Company or Parent or any of their respective Subsidiaries or Affiliates to dispose of or hold separate any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliateseffect.

Conditions to the Obligations of Parent and Merger Sub. The Solely if the Offer Termination shall have occurred, then the respective obligations of Parent and Merger Sub to effect consummate the Merger are subject to the satisfaction or (or to the extent permitted by Law) waiver by Parent in its sole discretion) at or prior to the Effective Time of the following further conditions: (a) The each of the representations and warranties of the Company (i) set forth in this Agreement in, Section 3.4 (without regard Authority Relative to materiality or Company Material Adverse Effect qualifiers contained thereinthe 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 be true and correct in all respects at and as of the date of this Agreement and the Closing Date as if made at and as of such 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 Effective Time with the same effect as though made as of such earlier date)the Effective Time, except where the failure of the representations and warranties to be true and correct, individually or in the aggregate has not had and would not reasonably be expected to have a Company Material Adverse Effect; provided, that the representations and warranties (ii) set forth in Sections 3.1, 3.2 and 3.5 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 Closing Date Effective Time with the same effect as if 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. Parent ) 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 materiality or “Company Material Adverse Effect” qualifications therein, shall have received a certificate dated the Closing Date signed on behalf be true and correct at and as of the Company by the chief executive officer or the chief financial officer date of this Agreement and as of the Company Effective Time with the same effect as though made as of the Effective Time (except to the effect extent expressly made as 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 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 the Offer, the Merger, exercise the Top-Up Option, refinance the indebtedness of the foregoing.Company, acquire, directly or indirectly, all of the outstanding equity interests in the Company’s subsidiaries and pay all fees and expenses in connection therewith to increase by $500,000 or more, such inaccuracy or inaccuracies will be considered material for purposes of clause (ii) of this Section 6.2(a); (b) The the Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at on or prior to the Closing Date. Parent Effective Time; and (c) the Company shall have received delivered to Parent a certificate certificate, dated the Closing Date Effective Time and signed by its chief executive officer or another senior officer on behalf of the Company by the chief executive officer or the chief financial officer of the Company Company, certifying to the effect of that the foregoingconditions set forth in Section 6.2(a) and Section 6.2(b) have been satisfied. (c) There shall not have occurred any event, occurrence or change that has had, or would reasonably be expected to have, a Company Material Adverse Effect. (d) No Action shall be pending by a Governmental Entity (i) seeking to prevent consummation of the Merger, (ii) seeking to impose any limitation on the right of Parent to control the Company and its Subsidiaries or any other Affiliate of Parent, or (iii) seeking to restrain or prohibit the Company’s or Parent’s ownership or operation (or that of their respective Subsidiaries or Affiliates) of any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliates, or to compel the Company or Parent or any of their respective Subsidiaries or Affiliates to dispose of or hold separate any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliates.

Conditions to the Obligations of Parent and Merger Sub. The ------------------------------------------------------ obligations of Parent and Merger Sub to effect the Merger are also subject to the satisfaction (fulfillment at or waiver by Parent in its sole discretion) prior to the Effective Time of the following further conditionsconditions unless waived in writing by Parent and Merger Sub: (a) The this Agreement, the Merger and the consummation of the transactions contemplated in this Agreement shall have been approved and adopted by the requisite vote of the stockholders of the Company required by Colorado Law; (b) the Company shall have performed each obligation and agreement and complied with each covenant to be performed and complied with by it hereunder at or prior to the Effective Time, except for such failures to comply which would not constitute a Company Material Adverse Effect and which would not otherwise materially adversely affect the consummation of the transactions contemplated hereby, and Parent shall have received a certificate signed on behalf of the Company by the chief executive officer and the chief financial officer of the Company to such effect; (c) the representations and warranties of the Company set forth in this Agreement (without regard that are qualified as to materiality or shall be true and correct, and the representations and warranties of the Company Material Adverse Effect qualifiers contained therein), set forth in this Agreement that are not so qualified shall be true and correct at and in all material respects, in each case as of the date of this Agreement and the Closing Date as if made at and as of such date (except to the extent that such representations and warranties refer specifically to an earlier dateEffective Date, in which case such representations and warranties shall have been true and correct as of such earlier date), except where the failure of the representations and warranties to be true and correct, individually or in the aggregate has not had and would not reasonably be expected to have a Company Material Adverse Effect; provided, that the representations and warranties set forth in Sections 3.1, 3.2 and 3.5 shall be true and correct in all material respects at though made on and as of the date of this Agreement Effective Date, and the Closing Date as if made as of such date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or and the chief financial officer of the Company to such effect with respect to the effect of the foregoing.Company's representations and warranties; (bd) The the Company shall have performed in taken all material respects actions, if any, that are necessary to assure that upon consummation of the Merger all obligations required of the options, warrants, and other agreements to be performed by it under this Agreement at or acquire any shares of Company Common Stock (excluding agreements with Parent) outstanding immediately prior to the Closing Date. Parent Merger (and not exercised prior to the Merger) shall, effective upon the Merger, have been cancelled and shall have received provided evidence thereof to Parent satisfactory to it; (e) the Company shall have delivered to Parent and Merger Sub all necessary consents, waivers, authorizations and approvals, such that neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (i) result in the acceleration, termination, modification or cancellation of, or the creation in any party of the right to accelerate, terminate, modify or cancel, any indenture, contract, lease, sublease, loan, agreement, note or other similar obligation or liability to which the Company or any of the Company Subsidiaries is a party or is bound or to which any of their respective assets are subject, (ii) conflict with, violate or result in a breach of any provision of the charter documents or bylaws of the Company or any of the Company Subsidiaries, (iii) conflict with or violate any law, rule, regulation, ordinance, order, writ, injunction or decree applicable to the Company or any of the Company Subsidiaries or by which any of their respective properties or assets is bound or affected or (iv) conflict with or result in any breach of or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or result in the creation of any lien, charge or encumbrance on any of the properties or assets of the Company or any of the Company Subsidiaries pursuant to any of the terms, conditions or provisions of any indenture, contract, lease, sublease, loan, agreement, note, permit, license, franchise, agreement or other instrument, obligation or liability to which the Company or any of the Company Subsidiaries is a party or by which the Company or any of the Company Subsidiaries or any of their assets is bound or affected, unless the failure to obtain such consents, waivers, authorizations and approvals would not (x) prevent the consummation of the transactions contemplated hereby, or (y) be reasonably likely to have a Company Material Adverse Effect; (f) the Company shall have delivered to each of Parent and Merger Sub a certificate of the Secretary of the Company dated the Closing Date signed Effective Date, certifying as to (i) a copy (to be attached to such certificate) of the Articles of Incorporation of the Company, together with all amendments thereto, and a copy of the By-laws of the Company and further certifying that no action has been taken to amend, modify or repeal such documents, the same being in full force and effect in such form on the Effective Date, (ii) a copy (to be attached to such certificate) of the resolutions of the board of directors and stockholders of the Company authorizing the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and further certifying that such resolutions have not been amended, modified, revoked or rescinded as of the date of such certificate and (iii) the incumbency and signature of the officers of the Company executing this Agreement on behalf of the Company and any certificate, agreement or other documents to be delivered by the chief executive officer or Company pursuant hereto, together with evidence of the chief financial officer incumbency of such Secretary; (g) the Company shall have delivered to each of Parent and Merger Sub the favorable opinion of counsel to the Company, dated the Effective Date, in form and substance reasonably satisfactory to counsel to Parent and Merger Sub, to the following effect: (i) the organization, existence, and good standing of the Company and the Company Subsidiaries are as stated in this Agreement; (ii) the Company has full power and authority to execute and deliver this Agreement and the Company has full power and authority to perform this Agreement; (iii) this Agreement has been duly authorized by all requisite action of the Board of Directors and shareholders of the Company, and constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency, moratorium, reorganization, or similar laws affecting creditors' rights generally and to general equitable principles; (iv) the execution and performance by the Company of this Agreement will not violate the Articles of Incorporation or By-laws of the Company and will not violate, result in a breach of or constitute a default under, any lease, mortgage, agreement, instrument, judgment, order or decree known to such counsel to which the Company or any Company Subsidiary are parties or to which they or any of their properties may be subject; (v) the Articles of Merger have been duly executed by the Company and, upon filing, will be sufficient to lawfully effect the Merger; (vi) the Mining Venture Agreement is in full force and effect and is valid, binding and enforceable by the Company, except as disclosed in Section 2.16(a) of the Company --------------- Disclosure Letter; (vii) the Company owns and has good title to the effect Project, the Properties and all of the foregoingassets and properties of the Company referenced in Section 2.17 of this Agreement, except as set ------------ forth in Section 2.17 of the Company Disclosure Letter; and (viii) to ------------ the knowledge of such counsel, no consent, approval, authorization or order of any court or governmental agency or body not previously obtained is required for the consummation of the Agreement. (ch) There since the date of this Agreement, there shall not have occurred any eventmaterial adverse change in the condition (financial or otherwise), occurrence business, operations, prospects or change that has had, or would reasonably be expected to have, a assets of the Company Material Adverse Effect.and the Company Subsidiaries considered as one enterprise; (d) No Action shall be pending by a Governmental Entity (i) Parent shall have completed, and in its sole discretion be satisfied with the results of, its due diligence investigation of the Company; (j) except for the filing of the Articles of Merger with the Secretary of State of the State of Colorado, all waivers, consents, approvals and actions or non-actions of any governmental authority, commission, board or other regulatory body required to consummate the transactions contemplated by this Agreement shall have been obtained and shall not have been reversed, stayed, enjoined, set aside, annulled or suspended; (k) there shall not be threatened or pending any suit, action or proceeding by any Governmental Entity or any other person, or before any court or governmental authority, agency or tribunal, domestic or foreign, in each case that has a reasonable likelihood of success, (i) challenging the acquisition by Parent or Merger Sub of any shares of Company Common Stock, seeking to prevent restrain or prohibit the consummation of the MergerMerger or any of the other transactions contemplated by this Agreement, or seeking to obtain from the Company, Parent or Merger Sub any damages that are material in relation to the Company and the Company Subsidiaries taken as a whole, (ii) seeking to impose any limitation on prohibit or limit the right of Parent to control the Company and its Subsidiaries or any other Affiliate of Parent, or (iii) seeking to restrain or prohibit the Company’s or Parent’s ownership or operation (by the Company, Parent or that any of their respective Subsidiaries or Affiliates) subsidiaries of any material portion of the business or assets of the Company or Company, Parent or any of their respective Subsidiaries or Affiliatessubsidiaries, or to compel the Company or Company, Parent or any of their respective Subsidiaries or Affiliates subsidiaries to dispose of or hold separate any material portion of the business or assets of the Company or Company, Parent or any of their respective subsidiaries, as a result of the Merger or any of the other transactions contemplated by this Agreement, (iii) seeking to impose limitations on the ability of Parent or Merger Sub to acquire or hold, or exercise full rights of ownership of, any shares of Company Common Stock, including, without limitation, the right to vote the Company Common Stock purchased by it on all matters properly presented to the stockholders of the Company, (iv) seeking to prohibit Parent or any of its subsidiaries from effectively controlling in any material respect the business or operations of the Company or the Company Subsidiaries or Affiliates(v) which otherwise is reasonably likely to have a Company Material Adverse Effect; (l) the Company's Board of Directors shall have approved the Globex Loan Agreement, and the Company shall not be in default under that agreement; (m) all funds which the Company borrows are used for the purpose required by any loan agreement or related documentation associated with such borrowing; (n) U.S. Gold shall have duly executed the Stock Option Agreement, and all related agreements and documents and such agreements are in full force and effect and U.S. Gold shall not be in default thereof; (o) Royalstar shall have duly executed a Stock Purchase Agreement providing for the purchase by Parent of 4,419,110 shares of Company Common Stock at $0.80 per share, all related agreements and documents and such agreements are in full force and effect, Royalstar shall not be in default thereof, and Parent shall have acquired such shares prior to or substantially contemporaneous with the Merger; (p) The Company shall have caused any of its employees, officers, directors or any Company Subsidiary which owns any interest in any real property, or any mineral interest or estate therein, within one aerial mile of the Lands or the Project, to convey such interest, without any additional compensation to such person, to the Company by a document of transfer satisfactory to Parent and its counsel; (q) the Company and TSVLP shall have executed and delivered a document, satisfactory to Parent, amending the terms and provisions of the Mining Venture Agreement; and (r) Parent shall have successfully raised financing of no less than $10,000,000.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger are subject to the satisfaction (or waiver by Parent in its sole discretionand/or Merger Sub, as applicable) at or prior to the Effective Time of the following further conditions; PROVIDED that notwithstanding the foregoing or anything in this Agreement to the contrary, after January 31, 2007, neither Section 7.02(a) nor 7.02(c) shall be a condition to Parent and Merger Sub's obligations to consummate the Merger: (a) The the representations and warranties of the Company set forth contained in this Agreement (without regard to materiality or Company Material Adverse Effect qualifiers contained therein), agreement shall be true and correct when made and at and as of the date of this Agreement and the Closing Date as if made at and as of such date the Closing (except to the extent that such for those representations and warranties refer specifically that address matters only as of a particular date or only with respect to an earlier date, in a specific period of time which case such representations and warranties shall have been need only be true and correct as of such earlier datedate or with respect to such period), except where the failure of the such representations and or warranties to be true and correctcorrect (without giving effect to any materiality qualifiers set forth in such representations and warranties) does not have and would not reasonably be expected to have, individually or in the aggregate aggregate, a Company Material Adverse Effect; PROVIDED, HOWEVER, that notwithstanding the foregoing, the representations and warranties set forth in Section 4.03 shall be true and correct in 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); (b) the Company shall have performed in all material respects its obligations hereunder required to be performed by it at or prior to the Effective Time; (c) since December 31, 2005, there shall not have been any change, event, circumstance or effect that has not 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 not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect; provided, PROVIDED that the representations and warranties 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 to Parent a certificate (dated as of the Closing Date), signed by an officer or officers with authority to bind the Company as to compliance with the conditions set forth in Sections 3.1paragraphs (a) (if applicable), 3.2 (b) and 3.5 (d) of this Section 7.02. For the avoidance of doubt, nothing in this Agreement shall be true and correct in all material respects at and construed to require or otherwise impose as of a condition to Parent or Merger Sub's obligation to consummate the date of this Agreement and the Closing Date as if made as of such date. Merger that Parent shall have received a certificate dated the Closing Date signed on behalf or otherwise has available financing in order to satisfy its payment obligations hereunder, including with respect to payment of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoingMerger Consideration. (b) The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoing. (c) There shall not have occurred any event, occurrence or change that has had, or would reasonably be expected to have, a Company Material Adverse Effect. (d) No Action shall be pending by a Governmental Entity (i) seeking to prevent consummation of the Merger, (ii) seeking to impose any limitation on the right of Parent to control the Company and its Subsidiaries or any other Affiliate of Parent, or (iii) seeking to restrain or prohibit the Company’s or Parent’s ownership or operation (or that of their respective Subsidiaries or Affiliates) of any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliates, or to compel the Company or Parent or any of their respective Subsidiaries or Affiliates to dispose of or hold separate any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliates.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger are subject to the satisfaction (or waiver by Parent in its sole discretion) of the following further conditions: (a) The Each of the representations and warranties of the Company set forth contained in this Agreement (without regard to materiality or Company Material Adverse Effect qualifiers contained therein), shall be true true, complete and correct at in all material respects both when made and on and as of the date of this Agreement and the Closing Date Effective Time as if made at and as of such date the Effective Time (except to the extent that such other than representations and warranties refer specifically to an earlier datewhich address matters only as of a certain date which shall be true, in which case such representations and warranties shall have been true complete and correct as of such earlier certain date), except where the failure of the representations ) and warranties to be true and correct, individually or in the aggregate has not had and would not reasonably be expected to have a Company Material Adverse Effect; provided, that the representations and warranties set forth in Sections 3.1, 3.2 and 3.5 shall be true and correct in all material respects at and as of the date of this Agreement and the Closing Date as if made as of such date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer Chief Executive Officer and Chief Financial Officer of the Company to the effect of the foregoingsuch effect. (b) The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Chief Executive Officer and Chief Financial Officer of Company by setting forth the chief executive officer or the chief financial officer number of shares of Parent Common Stock that each stockholder of Company is to receive upon consummation of the Merger and the number of shares of Parent Common Stock issuable upon the exercise of options to purchase Company to the effect of the foregoingCommon Stock. (c) Company shall have performed or complied in all material respects with all covenants required by this Agreement to be performed or complied with by it on or prior to the Effective Time and Parent shall have received a certificate of the Chief Executive Officer and Chief Financial Officer of Company to that effect. (d) Parent shall have raised sufficient funds in order to meet its $14 million cash obligation (U.S. Dollars), plus the amount of the aggregate capital paid in to the Company upon the exercise of Company Stock Options and Warrants from and after the date hereof until Closing, to Company shareholders at Closing. (e) There shall not have occurred been no Company Material Adverse Effect since the date of this Agreement. (f) No actions by any event, occurrence Governmental Entity or change that has hadany other Person shall have been instituted for the purpose of enjoining or preventing, or which question the validity or legality of, the transactions contemplated hereby and which would reasonably be expected to have, a Company Material Adverse Effect. (d) No Action shall be pending by a Governmental Entity (i) seeking to prevent consummation materially damage Merger Sub or Parent or materially adversely affect the value of the Merger, (ii) seeking to impose any limitation on the right of Parent to control the Company and Common Stock or its Subsidiaries or any other Affiliate of Parentassets, or (iii) seeking to restrain or prohibit the Company’s or Parent’s ownership or operation (or that of their respective Subsidiaries or Affiliates) of any portion of the business or assets operations of the Company or Parent Parent's ability to own and operate the assets, business or operations of the Company if the transactions contemplated hereby are consummated. (g) All consents, approvals and licenses of any Governmental Entity or any third party (including, without limitation, any consent listed on Schedule 4.5 of the Company Disclosure Schedule) required in connection with the execution, delivery and performance of this Agreement and for the Surviving Corporation to conduct the business of the Company in substantially the manner now conducted, shall have been obtained. (h) Dissenting Shares shall constitute not more than ten percent (10%) of the shares of the Company Common Stock outstanding immediately prior to the Effective Time. (i) Parent shall have received shareholder agreements from all holders of 5,000 or more shares of Company Common Stock, as set forth in Annex A hereto, as applicable to their individual status, not to sell, transfer or otherwise dispose of their respective Subsidiaries Parent stock for a period of six (6) months after the Closing in the case of non-employees and twelve (12) months in the case of employees. Notwithstanding such shareholder agreements, Parent may in certain limited circumstances allow sales of its stock prior to the expiration of the aforesaid lockup periods, but there is no requirement that it do so. The holders of 5,000 or Affiliates, or to compel more shares of Company Common Stock shall also agree after the Company or Parent or any expiration of their respective Subsidiaries or Affiliates the lockup agreement not to dispose of or hold separate any portion of the business or assets of the Company or their Parent stock other than through a broker specified by Parent or any of their respective Subsidiaries or Affiliatesafter full consultation with such broker.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger are subject to the satisfaction (or waiver by Parent in its sole discretion) of the following further conditions: (a) The each of the representations and warranties of Camworks and the Company set forth Shareholders contained in this Agreement (without regard to materiality or Company Material Adverse Effect qualifiers contained therein), shall be true and correct at as of the Effective Time as though made on and as of the date of this Agreement and the Closing Date as if made at and as of such date Effective Time (except to the extent that such representations and warranties refer specifically to expressly made as of an earlier date, in which case such representations and warranties shall have been true and correct as of such earlier date), except where the failure of the representations and warranties to be true and correct, individually or in the aggregate has not had and would not reasonably be expected to have a Company Material Adverse Effect; provided, that the representations and warranties set forth in Sections 3.1, 3.2 and 3.5 shall be true and correct in all material respects at and as of the date of this Agreement and the Closing Date as if made as of such date. ), and Parent shall have received a certificate dated the Closing Date signed on behalf of an officer of Camworks and each of the Company by the chief executive officer or the chief financial officer of the Company Shareholders to the effect of the foregoing.such effect; (b) The Company Camworks and the Shareholders shall have performed or complied in all material respects with all obligations agreements and covenants required by this Agreement to be performed or complied with by it under this Agreement at on or prior to the Closing Date. Effective Time, and Parent shall have received a certificate of an officer of Camworks and each of the Shareholders to that effect; (c) Parent shall have received the pooling letter agreements referred to in Section 2.8(b), dated the Closing Date, from each of the Shareholders; (d) Parent shall have received written confirmation from KPMG LLP, dated the Closing Date signed on behalf (if different from the execution date) and addressed to Parent, of the Company letter referred to in Section 4.8; (e) The Registration and Rights Agreement and the Escrow Agreement each shall have been executed and delivered by each of the chief executive officer Shareholders and the Shareholder Representative, and in the case of the Escrow Agreement, the Escrow Agent, and shall be in full force and effect; (f) The Shareholders shall have executed employment agreements substantially in the form of Exhibits F-1, F-2 and F-3, respectively, each including a non-competition agreement substantially in the form of Exhibit F-4; (g) The Board of Directors of Camworks shall have approved this transaction by unanimous written consent and Camworks shall have delivered a copy thereof; (h) Camworks shall have delivered a copy of the unanimous written consent referred to in Section 7.1(a); (i) all third party consents and waivers required to be obtained in connection with the execution, delivery and performance of this Agreement or the chief financial officer consummation of the Company to the effect transactions contemplated hereby shall have been obtained; (j) parent shall have received resignation letters from each of the foregoing.members of the board of directors of Camworks, which resignations shall be effective as of the effective time of the Merger; (ck) There no person shall have exercised or purported to have exercised dissenter's rights under the MBCA and no person other than the Shareholders shall have claimed an interest in the equity or assets of Camworks; (l) [Reserved] (m) amounts outstanding under the Camworks' line of credit shall not exceed $5,000; (n) there shall not have occurred any event, occurrence events or change circumstances since the date of this Agreement that has had, or would reasonably be expected to have, have a Company Camworks Material Adverse Effect.; (do) No Action Parent shall be pending by a Governmental Entity (i) seeking have received the lock-up agreements referred to prevent consummation in Section 2.10(b), dated the Closing Date, from each of the Merger, (ii) seeking to impose any limitation on the right of Parent to control the Company Xx. Xxxxxxx and its Subsidiaries or any other Affiliate of Parent, or (iii) seeking to restrain or prohibit the Company’s or Parent’s ownership or operation (or that of their respective Subsidiaries or Affiliates) of any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliates, or to compel the Company or Parent or any of their respective Subsidiaries or Affiliates to dispose of or hold separate any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or AffiliatesXx.

Conditions to the Obligations of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub to effect consummate the Merger are is subject to the satisfaction (satisfaction, at or waiver by Parent in its sole discretion) prior to Closing, of the following further conditions: (a) The representations and warranties the Company Stock Option Redemption shall have been completed; (b) (i) each of the Specified Company set forth in this Agreement (without regard Representations, to the extent not qualified as to materiality or “Company Material Adverse Effect qualifiers contained therein), Effect,” shall be true in all material respects, and correct at to the extent so qualified shall be true in all respects, when made and as of immediately prior to the date of this Agreement and the Closing Date Effective Time as if made at and as of such date time (except to the extent other than any Specified Company Representation that such representations and warranties refer specifically to an earlier is made only as of a specified date, which need only to be true in which case such representations and warranties shall have been true and correct all material respects as of such earlier specified date), except where (ii) the failure Other Company Representations, disregarding any materiality or Company Material Adverse Effect qualifications contained therein, shall be true when made and as of immediately prior to the representations Effective Time as if made at and warranties as of such time (other than any Other Company Representations that are made only as of a specified date, which need only to be true and correct, individually as of such specified date); provided that the Other Company Representations as modified in clause (ii) shall be deemed true at any time unless the individual or in aggregate impact of the aggregate has not had and would not failure to be so true of the Other Company Representations could reasonably be expected to have a Company Material Adverse Effect; provided, that the representations and warranties set forth in Sections 3.1, 3.2 and 3.5 shall be true and correct in all material respects at and as of the date of this Agreement and the Closing Date as if made as of such date. (iii) Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief a senior executive officer or the chief financial officer of the Company to the effect of the foregoing.foregoing effect; (bc) The the Company shall have performed in all material respects all its obligations required to be performed by it under this Agreement at or prior to the Closing Date. Agreement, and Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief a senior executive officer or the chief financial officer of the Company to the effect foregoing effect; provided, however, that Parent and Merger Sub shall not be relieved of their obligations to consummate the Merger pursuant to this Section 7.02(c) solely as a result of a failure by the Company to perform its obligations under this Agreement that has been primarily and proximately caused by the actions of Xxxx X. Xxxxx in his capacity as an executive officer of the foregoing. (c) There shall not have occurred any event, occurrence or change that has had, or would reasonably be expected to have, a Company Material Adverse Effect.Company; (d) No Action Merger Sub shall have received gross proceeds of at least $15,000,000 on terms and conditions as set forth in the Debt Financing Letter or upon terms that are, in the reasonable judgment of Merger Sub, at least as favorable to Merger Sub as those set forth in the Debt Financing Letter; (e) there shall not be instituted or pending any Proceeding by a any Governmental Entity Authority (i) seeking to prevent consummation of the Merger, (ii) seeking to impose any limitation on the right of Parent to control the Company and its Subsidiaries or any other Affiliate of Parent, or (iii) seeking to restrain or prohibit the Company’s or Parent’s ownership or operation (or that of their respective Subsidiaries or its Affiliates) of all or any material portion of the business business, assets or assets products of the Company and its Subsidiaries, taken as a whole, or of Parent and its Subsidiaries, taken as a whole, or to compel Parent or any of their respective Subsidiaries its Affiliates to dispose of, license (whether pursuant to an exclusive or Affiliatesnonexclusive license) or hold separate all or any material portion of the business, assets or products of the Company and its Subsidiaries, taken as a whole, or of Parent and its Subsidiaries, taken as a whole, (ii) seeking, directly or indirectly, to compel impose or confirm material limitations on the Company or ability of Parent or any of their respective Subsidiaries its Affiliates effectively to acquire, hold or Affiliates to dispose exercise full rights of ownership of Company Common Stock or hold separate any portion shares of common stock of the business Surviving Corporation, including the right to vote such shares on all matters properly presented to the Company’s shareholders, or assets of the Company or Parent (iii) seeking to require divestiture by, Parent, Merger Sub, or any of their respective Subsidiaries Parent’s other Affiliates of any equity interests; (f) there shall not be in effect any Order that could reasonably be expected to result, directly or Affiliatesindirectly, in any of the effects referred to in clauses (i) through (iv) of Section 7.02(e); and (g) there shall not have been any fact, event, change, development or set of circumstances that has had, individually or in the aggregate, a Company Material Adverse Effect.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger are subject to the satisfaction (or waiver (where permissible) on or prior to the Closing Date by Parent in its sole discretion) of the following further additional conditions: (a) The each of the representations and warranties of the Company set forth contained in this Agreement (without regard giving effect to any materiality qualifications or limitations therein or any references therein to Company Material Adverse Effect qualifiers contained therein), Effect) shall be true and correct at and as of the date of this Agreement and the Closing Date as if made at and as of such 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 as of such earlier date), except where the failure of the representations and warranties to be true and correct, in each case as of the Effective Time as though made on and as of the Effective Time, except (i) for such failures, individually or in the aggregate has not had aggregate, to be true and correct that would not reasonably be expected to have a Company Material Adverse Effect; provided, (ii) that the those representations and warranties set forth in Sections 3.1, 3.2 and 3.5 that address matters only as of a particular date shall be remain true and correct in all material respects at and as of the date of this Agreement and the Closing Date as if made as of such date. , subject to the qualifications in (i) above; and (iii) for changes expressly permitted or contemplated by the terms of this Agreement, and Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial a duly authorized officer of the Company to the effect of the foregoing.such effect; (b) The the Company shall have performed or complied in all material respects with all obligations agreements and covenants required by this Agreement to be performed or complied with by it under this Agreement at the Company on or prior to the Closing Date. Effective Time, and Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial a duly authorized officer of the Company to the effect of the foregoing.that effect; (c) There the Company shall not have occurred any eventreceived, occurrence or change that has hadeach in form and substance reasonably satisfactory to Parent, or all third party consents necessary to consummate the Transactions, the failure of which to obtain would reasonably be expected to have, have a Company Material Adverse Effect.; (d) No Action no event or events shall have occurred, which, individually or in the aggregate, would reasonably be expected to have a Company Material Adverse Effect; (e) the Company shall have executed the Certificate of Merger for filing pursuant to SECTION 1.02 hereof with the Secretary of State of the State of Delaware; (f) the Company shall have delivered to Parent the fully executed Board Resignations and Officer Resignations; (g) there shall not be pending by or threatened any suit, action, investigation or proceeding to which a Governmental Entity Authority is a party (i) seeking to prevent consummation of the Merger, (ii) seeking to impose any limitation on the right of Parent to control the Company and its Subsidiaries or any other Affiliate of Parent, or (iii) seeking to restrain or prohibit the Company’s 52 consummation of the Transactions or Parent’s seeking to obtain from Parent or the Company any damages that are material or (ii) seeking to prohibit or limit the ownership or operation (by Parent or that the Company of any material portion of their respective Subsidiaries businesses or Affiliatesassets; (h) of any portion of the business or assets Dissenting Shares shall comprise not more than 10% of the Company or Parent or any of their respective Subsidiaries or Affiliates, or Common Stock outstanding immediately prior to compel the Effective Time; and (i) the Company or Parent or any shall have amended that certain Product Purchase Agreement by and between the Company and Alpharma to (i) provide that the assignment and assumption of their respective Subsidiaries or Affiliates certain GPO contracts from the Company to dispose of or hold separate any portion Alpharma was in part and not in whole and (ii) obtain all third party consents associated with consummation of the business or assets of transactions contemplated by the Company or Parent or any of their respective Subsidiaries or AffiliatesProduct Purchase Agreement.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger are subject to the satisfaction of the following further conditions (any one of which may be waived in whole or waiver part by Parent in its sole discretion) of discretion by giving written notice to the following further conditions:Company in compliance with Section 10.1 hereof): (a) The (i) the Company shall have performed all of its material obligations hereunder required to be performed by it at or prior to the Effective Time; and (ii) Parent shall have received a certificate signed by an executive officer of the Company to the foregoing effect; (b) (i) each of the representations and warranties of the Company set forth contained in this Agreement (without regard to materiality or Company Material Adverse Effect qualifiers contained therein), shall be true and correct at and as of the date of this Agreement and the Closing Date as if made at and as of such 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 at the time originally made (as qualified by the Company Disclosure Schedule), or an earlier date if such representation or warranty refers expressly to an earlier date (without giving effect to any qualifications as to materiality or lack of Material Adverse Effect contained therein), and shall be true and correct in all material respects (without giving effect to any qualifications as to materiality or lack of Material Adverse Effect contained therein) as of the Effective Time, with the same force and effect as if such representations and warranties had been made at and as of the Effective Time, or an earlier date if such representation or warranty refers expressly to an earlier date), except where the failure of with respect to the representations and warranties deemed to be made as of the Closing Date, where any failures to be true and correct, individually or in the aggregate has not had and would aggregate, could not reasonably be expected to have constitute a Company Material Adverse Effect; providedEffect with respect to the Company and (ii) the Company shall deliver to Parent at the Closing a certificate, dated as of the date of the Closing and signed by the Company’s President or Chief Executive Officer, certifying to that effect; (c) each of the representations individuals identified on Schedule 7.2 hereto shall have executed and warranties set forth delivered a non-competition agreement with Parent in Sections 3.1form and substance satisfactory to Parent and such person; (d) no Material Adverse Effect with respect to the Company shall have occurred or been discovered by Parent since the Agreement Date; (e) no injunction or other decree shall have been issued by any court of competent jurisdiction prohibiting the sale of the Contingent Payment Products by the Company or Parent on the basis of any rights held by a third party (including without limitation any rights of any third party in any Intellectual Property); (f) Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx will have issued a legal opinion in the form attached hereto as Exhibit D; (g) the Company shall have delivered a properly executed statement, 3.2 dated as of the Closing Date, in a form reasonably acceptable to Parent conforming to the requirements of Treasury Regulation Section 1.1445-2(c)(3); (h) the Company shall have delivered to Parent and 3.5 Merger Sub the Capitalization and Closing Payment Amount Certificate; (i) the Company shall have obtained the consent or approval of each person whose consent or approval shall be true required in connection with the Merger under all notes, bonds, mortgages, indentures, contracts, agreements, leases, licenses, permits, franchises and correct other instruments or obligations to which it is a party; (j) the Company shall have delivered to Parent a certificate at any one time following the date hereof but prior to the Closing Date, setting forth the following information as to each share of the Company’s stock (as defined in all material respects at and Treas. Reg. § 1.382-2(a)(3)), as of the date of such certificate (which date may be any day after the date of this Agreement and the Closing Date as if made as of such date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoing. (b) The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoing. (c) There shall not have occurred any event, occurrence or change that has had, or would reasonably be expected to have, a Company Material Adverse Effect. (d) No Action shall be pending by a Governmental Entity Effective Time): (i) seeking to prevent consummation the date of the Mergerissuance, (ii) seeking to impose any limitation on the right of Parent to control the Company and its Subsidiaries or any other Affiliate of Parentholder at issuance, or (iii) seeking to restrain or prohibit the Company’s or Parent’s ownership or operation issue price and (or that of their respective Subsidiaries or Affiliatesif different) fair market value, (iv) the date(s) of any transfer(s), (v) the fair market value at the time of transfer, (vi) any information as to the holder of that share from time to time that is described in Treas. Reg. §§ 1.382-2T(h)(6) and/or 1.382-2T(k) and is actually known to the Company, and (vii) a summary of any written materials indicative of, or other information or estimates as to, the fair market value of that share from time to time (including, e.g., the exercise price of any incentive stock options granted at any time at or following the issuance date of that share to acquire shares of the same class of stock); (k) any and all rights, warrants, options or other instruments or rights to purchase shares of Company Common Stock or Company Preferred Stock (other than Company Options, which shall be converted into the right to receive a portion of the business Merger Consideration in accordance with Section 2.1) outstanding immediately prior to the Closing, whether or assets not exercisable, whether or not vested, and whether or not performance based, shall have been exercised or terminated, and all outstanding convertible notes shall have been cancelled or converted into capital stock of the Company; and (l) holders of no more than five percent (5%) of the aggregate outstanding Company or Parent or any Common Stock and Company Preferred Stock (calculated on an as-converted to Company Common Stock basis) as of their respective Subsidiaries or Affiliatesthe Effective Time shall have elected to, or continue to compel the Company have contingent rights to, exercise dissenters’, appraisal or Parent similar rights under Delaware Law or any of their respective Subsidiaries or Affiliates California Law, if any, with respect to dispose of or hold separate any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliatessuch shares.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger are subject to the satisfaction (or waiver by Parent in its sole discretionand Merger Sub) of the following further conditions: (a) The each of the representations and warranties of the Company set forth in this Agreement shall be true and accurate as of the Closing Date as if made on and as of the Closing Date (other than those representations and warranties that address matters only as of a particular date or only with respect to a specific period of time, which representations and warranties need only be true and accurate as of such date or with respect to such period), except where the failure of such representations and warranties to be so true and accurate (without regard giving effect to any limitation relating to materiality or Company Material Adverse Effect qualifiers contained set forth therein), shall be true and correct at and as of the date of this Agreement and the Closing Date as if made at and as of such 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 as of such earlier date), except where the failure of the representations and warranties to be true and correct) would not, individually or in the aggregate has not had and would not aggregate, reasonably be expected to have a Company Material Adverse Effect; provided, that ; (b) the representations Company shall have complied with and warranties set forth in Sections 3.1, 3.2 and 3.5 shall be true and correct performed in all material respects its covenants and obligations hereunder required to be complied with or performed by it at and as of or prior to the date of this Agreement and the Closing Date as if made as of such date. Closing; (c) Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company Company, dated as of the Closing Date, to the effect that, to the knowledge of such officer, the foregoingconditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied; (d) From the date of this Agreement through the Effective Time there shall not have occurred a Company Material Adverse Effect; provided, however, a Company Material Adverse Effect shall not be deemed to have occurred solely for purposes of this Section 7.2(d) if the fact, change, event, factor, condition, circumstance, development or effect giving rise to such Company Material Adverse Effect has been fully remedied, such that no remaining impact therefrom is present, all as determined by Parent in good faith. (be) The Company Rights Agreement shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date. been terminated or, if not terminated, Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial an officer of the Company that such Rights Agreement does not apply to the effect of the foregoing.Merger; and (cf) There shall not have occurred any event, occurrence or change that has had, or would reasonably be expected to have, a Company Material Adverse Effect. (d) No Action shall be pending by a Governmental Entity (i) seeking to prevent consummation Not more than 15% of the Merger, (ii) seeking to impose any limitation on the right of Parent to control the Company and its Subsidiaries or any other Affiliate of Parent, or (iii) seeking to restrain or prohibit the Company’s or Parentshareholders shall have exercised dissenter’s ownership or operation (or that of their respective Subsidiaries or Affiliates) of any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliates, or to compel the Company or Parent or any of their respective Subsidiaries or Affiliates to dispose of or hold separate any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliatesrights.

Conditions to the Obligations of Parent and Merger Sub. The ------------------------------------------------------ respective obligations of Parent and Merger Sub to effect consummate the Merger transactions contemplated by this Agreement are subject to the satisfaction (fulfillment at or waiver by Parent in its sole discretion) prior to the Effective Time of each of the following further additional conditions, any or all of which may be waived in whole or part by Parent and Merger Sub, as the case may be, to the extent permitted by applicable Law: (a) The representations and warranties of the Company set forth contained herein shall have been true in this Agreement (without regard to materiality or Company Material Adverse Effect qualifiers contained therein), shall be true all respects when made and correct at on and as of the date Closing Date as though made on and as of this Agreement and the Closing Date as if made at and as of such date (except to the extent that such for representations and warranties refer specifically to an earlier made as of a specified date, in which case such representations and warranties shall have been true and correct speak only as of such earlier the specified date), except where the failure of the representations and warranties to be true and correcttrue, individually or in the aggregate aggregate, has not had and would or is not reasonably be expected to have a Company Material Adverse Effect; provided, that the representations and warranties set forth in Sections 3.1, 3.2 and 3.5 shall be true and correct in all material respects at and as of the date of this Agreement and the Closing Date as if made as of such date. Parent shall have received a certificate dated the Closing Date signed Effect on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoingand its subsidiaries taken as a whole. (b) The Company shall have performed or complied in all material respects with all obligations agreements and conditions contained herein required to be performed or complied with by it under this Agreement at or prior to or at the time of the Closing. (c) The Company shall have delivered to Parent a certificate, dated the date of the Closing, signed by the President or any Vice President of the Company (but without personal liability thereto), certifying as to the fulfillment of the conditions specified in Sections 7.2(a) and 7.2(b). (d) The Company shall have received and delivered to Parent a letter from Ernst & Young LLP, auditors for the Company, dated as of the Closing Date, stating that the Company qualifies as a combining company in accordance with the provisions of APB 16 and the applicable SEC rules and regulations. Parent shall have received a certificate letter from Ernst & Young LLP, auditors for Parent, dated as of the Closing Date signed Date, stating that accounting of the Merger as a "pooling of interests" under APB 16 and the applicable SEC rules and regulations is appropriate if the Merger is consummated as contemplated by this Agreement. Notwithstanding the foregoing, the satisfaction of this Section 7.2(d) shall not be a condition to the obligations of a party to effect the Merger if the failure to satisfy this condition results from any action taken or agreed to be taken by or on behalf of Parent. (e) Parent shall have received an opinion of its tax counsel, Weil, Gotshal & Xxxxxx LLP, dated the Company by the chief executive officer or the chief financial officer of the Company Effective Time, to the effect that (i) the Merger will qualify as a reorganization within the meaning of Section 368(a) of the foregoingCode; 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. The issuance of such opinion shall be conditioned on the receipt by such tax counsel of representation letters from each of the Parent, Merger Sub and the Company, substantially in the forms attached hereto as Exhibits D and E. Each such ---------- - representation letter shall be dated on or before the date of such opinion and shall not have been withdrawn or modified in any material respect. (cf) There shall not have occurred any eventAll authorizations, occurrence consents or change that has had, or would reasonably be expected to have, a Company Material Adverse Effect. (d) No Action shall be pending by approvals of a Governmental Entity (iother than those specified in Section 7.1(b)) seeking to prevent consummation required in connection with the execution and delivery of this Agreement and the performance of the Mergerobligations hereunder shall have been made or obtained, (ii) seeking without any limitation, restriction or condition that is reasonably expected to impose any limitation have a Material Adverse Effect on the right of Parent to control the Company and its Subsidiaries subsidiaries taken as a whole (or any other Affiliate of Parentan effect on Parent and its subsidiaries that, or (iii) seeking were such effect applied to restrain or prohibit the Company and its subsidiaries, is reasonably expected to have a Material Adverse Effect on the Company’s ), except for such authorizations, consents or Parent’s ownership approvals, the failure of which to have been made or operation obtained is not reasonably expected to have a Material Adverse Effect on the Company and its subsidiaries taken as a whole (or that of their respective Subsidiaries or Affiliatesan effect on Parent and its subsidiaries that, were such effect applied to the Company and its subsidiaries, is reasonably expected to have a Material Adverse Effect on the Company). (g) of any portion of Not later than 45 days prior to the business or assets date of the Company or Stockholder Meeting, Parent or any of their respective Subsidiaries or Affiliates, or to compel shall have received from the Company's "affiliates" a Company or Parent or any of their respective Subsidiaries or Affiliates to dispose of or hold separate any portion of Affiliate Agreement substantially in the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliates.form attached as Exhibit B. ---------

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger are subject to the satisfaction (or waiver by Parent in its sole discretion) of the following further conditions: (a) The Each of the representations and warranties of the Company set forth contained in this Agreement (without regard to materiality or Company Material Adverse Effect qualifiers contained therein), shall be true true, complete and correct at in all material respects (other than representations and warranties subject to "materiality" or "material adverse effect" qualifiers, which shall be true, complete and correct in all respects) both when made and on and as of the date of this Agreement and the Closing Date Effective Time as if made at and as of such date the Effective Time (except to the extent that such other than representations and warranties refer specifically to an earlier datewhich address matters only as of a certain date which shall be so true, in which case such representations and warranties shall have been true complete and correct as of such earlier certain date), except where the failure of the representations and warranties to be true and correct, individually or in the aggregate has not had and would not reasonably be expected to have a Company Material Adverse Effect; provided, that the representations and warranties set forth in Sections 3.1, 3.2 and 3.5 shall be true and correct in all material respects at and as of the date of this Agreement and the Closing Date as if made as of such date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoing.; (b) The Company shall have performed or complied in all material respects with all obligations covenants required by this Agreement to be performed or complied with by it under this Agreement at on or prior to the Closing Date. Effective Time; (c) Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company legal opinion from Hill & Xxxxxx, P.C., counsel to the effect Company, substantially in the form of the foregoing. (c) There shall not have occurred any event, occurrence or change that has had, or would reasonably be expected to have, a Company Material Adverse Effect.ANNEX B hereto; (d) There shall have been no Company Material Adverse Effect since the date of this Agreement; (e) All consents of third parties required pursuant to the terms of any Material Contract as a result of the Merger shall have been obtained; (f) Xxxxxx Xxxxxxxx and Xxxxxxx Xxxxxxxx shall have accepted employment with Parent and shall have entered into noncompetition agreements substantially in the forms attached hereto as ANNEX C; (g) No Action holders of Company Stock as of the Effective Date shall be pending by a Governmental Entity have perfected dissenting rights in accordance with the DGCL; (h) Holders of the requisite number of shares of (i) seeking to prevent consummation of the Merger, Company Common Stock and (ii) seeking to impose any limitation on Company Preferred Stock shall have approved this Agreement and the right transactions contemplated hereby; (i) Each Founder shall have entered into a founder lockup agreement substantially in the form attached hereto as Annex D; (j) Each holder of Parent to control options under the Company Stock Plan being assumed by Parent shall have entered into an optionholder lockup agreement, substantially in the form attached hereto as Annex E. For purposes of clarification, any warrants issued by the Company shall not be deemed to be options issued under the Company Stock Plan; (k) The Company shall have provided Parent with documentation sufficient to ensure that Parent shall receive credit from Media Metrix for all visits to all websites owned by the Company during the month of March and its Subsidiaries or any other Affiliate thereafter, a form of Parentwhich is attached hereto as Annex F; (l) Each Stockholder shall have delivered to Parent a stockholder representation letter substantially in the form attached hereto as Annex G; (m) Prior to the Effective Time, or (iii) seeking to restrain or prohibit the Company’s or Parent’s ownership or operation (or that all outstanding shares of their respective Subsidiaries or Affiliates) Company Preferred Stock shall have been cancelled and converted into shares of any portion of the business or assets Company Common Stock and all warrants of the Company or Parent or any shall have been exercised, cancelled and converted into shares of their respective Subsidiaries or AffiliatesCompany Common stock; (n) Parent, or to compel the Company or Parent or any of their respective Subsidiaries or Affiliates to dispose of or hold separate any portion Company, the Escrow Agent and each Founder shall have executed and delivered a Founders Escrow Agreement and Founders Agreement Amendment substantially in the form attached hereto as Annex H; (o) All of the business or assets directors of the Company or Parent or any as of their respective Subsidiaries or Affiliatesthe date hereof, except for Xxxxxx Xxxxxxxx and Xxxxxxx Xxxxxxxx, shall have resigned as directors; and (p) Each of the Stockholder Party Agreements shall have been terminated by all of the parties thereto.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Mxxxxx Sub to effect consummate the Merger Contemplated Transactions are subject to the satisfaction (fulfillment at or waiver by Parent in its sole discretion) prior to the Effective Time of each of the following further additional conditions, any or all of which may be waived in writing in whole or part by Parent or Merger Sub to the extent permitted by applicable Law: (a) The representations and warranties of the Company set forth in this Agreement (without regard contained herein qualified as to materiality or Company Material Adverse Effect qualifiers contained therein), shall be true and correct in all respects and those not so qualified shall be true and correct in all material respects as of the date hereof and at and as of the date of this Agreement and the Closing Date as if though such representations and warranties were made at and as of such date (except to the extent that such for representations and warranties refer specifically to an earlier made as of a specified date, in which case such representations and warranties shall speak only as of the specified date). (b) The Company shall have been true delivered to Parent and correct as of such earlier date)Merger Sub certificates, except where dated the failure date of the representations and warranties Closing, signed by an executive officer of each of the Company, certifying as to be true and correctthe fulfillment of the conditions specified in Section 7.2(a). (c) Since the date of this Agreement, there shall not have been any event, change, effect, occurrence or circumstance that, individually or in the aggregate aggregate, has not had and or would not reasonably be expected to have a Company Material Adverse Effect; . (d) All of the Company Consents shall have been obtained or provided. (e) All stockholder agreements, that voting agreements, registration rights agreements and similar agreements between or among any of the representations and warranties Company, the Subsidiaries and/or the Stockholders set forth in Sections 3.1, 3.2 and 3.5 shall be true and correct in all material respects at and as on Section 7.2(d) of the date Company Disclosure Schedule (“Terminated Stockholder Agreements”), shall have been terminated and shall cease to be of this Agreement and the Closing Date as if made as of such date. force or effect. (f) Parent shall have received received, in a certificate dated form reasonably acceptable to Parent, (i) a certification that meets the Closing Date signed requirements of Treasury Regulations Sections 1.897-2(h)(1) and 1.1445-2(c)(3), certifying that the interests in the Company do not constitute “United States real property interests” within the meaning of Code Section 897(c)(1) and the Treasury Regulations promulgated thereunder, and (ii) notice to the IRS, in accordance with the requirements of Treasury Regulations Section 1.897-2(h)(2), together with written authorization for Parent to deliver such notice and a copy of the certification to the IRS on behalf of the Company after the Closing, in each case properly completed and executed by the chief executive officer or the chief financial officer of the Company to the effect of the foregoingCompany. (bg) The Company Parent shall have performed received, in all material respects all obligations required a form reasonably acceptable to be performed by it under this Agreement at or Parent, a certificate from the jurisdiction of incorporation of Company dated within five (5) Business Days prior to the Closing Date. Parent shall have received a certificate dated , certifying that the Closing Date signed on behalf Company is in good standing and that all applicable franchise Taxes and fees of the Company by through and including the chief executive officer or the chief financial officer date of the Company to the effect of the foregoingsuch certificate have been paid. (c) There shall not have occurred any event, occurrence or change that has had, or would reasonably be expected to have, a Company Material Adverse Effect. (d) No Action shall be pending by a Governmental Entity (i) seeking to prevent consummation of the Merger, (ii) seeking to impose any limitation on the right of Parent to control the Company and its Subsidiaries or any other Affiliate of Parent, or (iii) seeking to restrain or prohibit the Company’s or Parent’s ownership or operation (or that of their respective Subsidiaries or Affiliates) of any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliates, or to compel the Company or Parent or any of their respective Subsidiaries or Affiliates to dispose of or hold separate any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliates.

Conditions to the Obligations of Parent and Merger Sub. The respective obligations of Parent and Merger Sub to effect consummate the Merger transactions contemplated by this Agreement are subject to the satisfaction (fulfillment at or waiver by Parent in its sole discretion) prior to the Closing Date of each of the following further additional conditions, any or all of which may be waived in whole or in part by Parent and Merger Sub, as the case may be, to the extent permitted by applicable Law: (a) The representations and warranties of the Company set forth contained herein shall have been true in this Agreement (without regard to materiality or Company Material Adverse Effect qualifiers contained therein), shall be true all respects when made and correct at on and as of the date Closing Date as though made on and as of this Agreement and the Closing Date as if made at and as of such date (except to the extent that such for representations and warranties refer specifically to an earlier made as of a specified date, in which case such representations and warranties shall have been true and correct speak only as of such earlier the specified date), except where the failure of the representations and warranties to be true and correcttrue, individually or in the aggregate aggregate, has not had and would or is not reasonably be expected to have a Company Material Adverse Effect; provided, that the representations and warranties set forth in Sections 3.1, 3.2 and 3.5 shall be true and correct in all material respects at and as of the date of this Agreement and the Closing Date as if made as of such date. Parent shall have received a certificate dated the Closing Date signed Effect on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoingand its subsidiaries taken as a whole. (b) The Company shall have performed or complied in all material respects with all obligations agreements and conditions contained herein required to be performed or complied with by it under this Agreement at or prior to or at the time of the Closing. (c) The Company shall have delivered to Parent a certificate, dated the Closing Date, signed by the President or any Vice President of the Company certifying as to the fulfillment of the conditions specified in Sections 7.2(a) and 7.2(b). (d) Parent shall have received an opinion of Xxxxxxxx & Xxxxxxxx, LLP, dated the Closing Date, 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. The issuance of such opinion shall be conditioned on the receipt by such counsel of representation letters from each of Parent, Merger Sub and the Company, substantially in the forms attached hereto as EXHIBITS C and D in each case, in form and substance reasonably satisfactory to Xxxxxxxx & Xxxxxxxx, LLP. Each such representation letter shall be dated on or before the date of such opinion and shall not have been withdrawn or modified in any material respect. (e) All authorizations, consents or approvals of any Governmental Entity (other than those specified in Section 7.1(b)) required in connection with the execution and delivery of this Agreement and the performance of the obligations hereunder shall have been obtained, without any limitation, restriction or condition that is reasonably expected to have a Material Adverse Effect on the Company and its subsidiaries taken as a whole (or, were such effect applied to the Surviving Corporation and its subsidiaries, is reasonably expected to have a Material Adverse Effect on Parent and its subsidiaries taken as a whole), except for such authorizations, consents or approvals, the failure of which to have been obtained is not reasonably expected to have a Material Adverse Effect on the Company and its subsidiaries taken as a whole (or, were such effect applied to the Surviving Corporation and its subsidiaries, is not reasonably expected to have a Material Adverse Effect on Parent and its subsidiaries taken as a whole). (f) All authorizations, consents or approvals of any third parties (other than those specified in Section 7.2(e)) identified in the Company Disclosure Schedule required for the Company to consummate the Merger and the other transactions contemplated hereby shall have been obtained, except for such authorizations, consents or approvals, the 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, were such effect applied to the Surviving Corporation and its subsidiaries, is not reasonably expected to have a Material Adverse Effect on Parent and its subsidiaries taken as a whole). (g) Parent shall have received a certificate Lock-Up Agreement executed by each Company Insider and Parent Insider. (h) Stockholders of the Company holding no more than five percent (5%) of the Company Common Stock shall have elected any appraisal rights or associated payments under Sections 92A-420 and 92A-440 of the NGCL. (i) Parent shall have received an opinion, dated the Closing Date signed on behalf Date, from Xxxxx & Xxxxxx, L.L.P., counsel to the Company, in the form reasonably acceptable to Parent and its legal counsel regarding the due authorization of the Company by entering and performing this Agreement and the chief executive officer Merger, enforceability of this Agreement and the Merger, and no conflicts with the articles of incorporation or the chief financial officer bylaws of the Company to the effect of the foregoingCompany. (cj) There All consents, waivers and other actions referred to in Section 6.19 shall not have occurred any event, occurrence or change that has had, or would reasonably be expected to have, a Company Material Adverse Effectbeen obtained and/or taken as provided therein. (d) No Action shall be pending by a Governmental Entity (i) seeking to prevent consummation of the Merger, (ii) seeking to impose any limitation on the right of Parent to control the Company and its Subsidiaries or any other Affiliate of Parent, or (iii) seeking to restrain or prohibit the Company’s or Parent’s ownership or operation (or that of their respective Subsidiaries or Affiliates) of any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliates, or to compel the Company or Parent or any of their respective Subsidiaries or Affiliates to dispose of or hold separate any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliates.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger are subject to the satisfaction (or waiver by Parent in its sole discretionParent) of the following further conditions: (a) The representations each representation and warranties warranty of the Company set forth in this Agreement Sections 4.1 (without regard Organization), 4.2 (Capitalization; Subsidiaries) and 4.3 (Authorization; Validity of Agreement; Company Action) that is qualified as to materiality or Company Material Adverse Effect qualifiers contained therein)shall be true and accurate, and each not so qualified shall be true and correct at and in all material respects, as of the date of this Agreement and as of the Closing Date as if made at and as of such date time (except to the extent that such other than those representations and warranties refer specifically that address matters only as of a particular date or only with respect to an earlier datea specific period of time, in which case each such representation and warranty qualified as to materiality or Company Material Adverse Effect shall be true and correct, and each not so qualified shall be true and correct in all material respects, as of such date or with respect to such period); each of the other representations and warranties of the Company shall have been be true and correct accurate (disregarding any qualifications as to materiality or Company Material Adverse Effect contained therein) as of the date of this Agreement and as of the Closing Date as if made at and as of such earlier datetime (other than those representations and warranties that address matters only as of a particular date or only with respect to a specific period of time, which representations and warranties need only be true and accurate as of such date or with respect to such period), except where the failure of the such representations and warranties to be so true and correctaccurate would not, individually or in the aggregate aggregate, have a Company Material Adverse Effect; (b) the Company shall have performed in all material respects its obligations hereunder required to be performed by it at or prior to the Closing; (c) Parent shall have received a certificate signed by an executive officer of the Company, dated as of the Closing Date, certifying that the conditions set forth in Section 7.2(a), Section 7.2(b), Section 7.2(h) and Section 7.2(i) have been satisfied, which certificate shall include a true and correct copy of the Reference Balance Sheet prepared by the Company and reasonably acceptable to Parent; (d) there shall not be pending or threatened any action, claim, suit, proceeding or investigation challenging or seeking to restrain or prohibit the consummation of the Merger or any other Transaction or seeking to impose any Burdensome Condition; (e) since the date of this Agreement, there shall not have been any event, change, effect or development that, individually or in the aggregate, has not had and or would not reasonably be expected to have a Company Material Adverse Effect; provided; (f) all applicable Governmental Entities, that including the representations NYSDFS, shall have granted all necessary approvals, consents and warranties authorizations without the imposition of a Burdensome Condition, and all necessary filings with and notices to or required by such Governmental Entities shall have been made, necessary to permit the Insurance Company to declare and pay the Extraordinary Dividend in an amount not less than the Minimum Extraordinary Dividend Amount, such approvals, consents, authorizations, filings and notices shall be in full force and effect, and such Extraordinary Dividend shall have been declared and paid in full in accordance with such approvals, consents, authorizations, filings and notices; (g) all applicable Governmental Entities, including the NYSDFS and the Delaware Department of Insurance, shall have granted all necessary approvals, consents and authorizations without the imposition of a Burdensome Condition, and all necessary filings with and notices to or required by such Governmental Entities shall have been made, necessary to permit (i) the Insurance Company and Parent to enter into the Coinsurance Agreement in substantially the form attached hereto as Exhibit B and consummate the Reinsurance Transaction and (ii) the applicable parties to enter into each Affiliate Agreement in substantially the form attached hereto as Exhibit A; (h) the Net Assets of the Company, prior to receipt of the Extraordinary Dividend, as set forth in Sections 3.1, 3.2 and 3.5 on the Reference Balance Sheet (i) shall be true not less than $40 million and correct in all material respects at (ii) shall be comprised of substantially the same type and mix of assets, including with respect to duration and credit-quality, as of the date of this Agreement and the Closing Date as if made as of such date. Parent shall have received a certificate dated the Closing Date signed on behalf Net Assets of the Company by on the chief executive officer or the chief financial officer of the Company to the effect of the foregoing.date hereof; and (b) The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoing. (c) There shall not have occurred any event, occurrence or change that has had, or would reasonably be expected to have, a Company Material Adverse Effect. (d) No Action shall be pending by a Governmental Entity (i) seeking to prevent consummation the aggregate amount of the Merger, (ii) seeking to impose any limitation on the right of Parent to control impairments and realized losses recognized by the Company and its Subsidiaries in accordance with SAP on Investment Assets (other than investments in limited partnerships) (i) with respect to which Parent or any other Affiliate of Parent, or (iii) seeking to restrain or prohibit the Company’s or Parent’s ownership or operation (or its Representatives reasonably and in good faith recommended that of their respective Subsidiaries or Affiliates) of any portion of the business or assets of the Company or Parent or any and its Subsidiaries dispose of their respective Subsidiaries or Affiliates, or pursuant to compel Section 6.2(c) and (ii) that result from a decline in value after the date of such recommendation (the “Recommendation Date”) (provided that the decline in value of an Investment Asset after the Recommendation Date shall be deemed to be zero if the Company or Parent or any of their respective Subsidiaries or Affiliates sells such Investment Asset within five Business Days after the Recommendation Date or, despite using reasonable best efforts to dispose of or hold separate any portion of sell such Investment Asset from and after the business or assets of Recommendation Date, the Company or Parent or any of their respective Subsidiaries or Affiliatesis unable to sell such Investment Asset), shall not exceed $5 million.

Conditions to the Obligations of Parent and Merger Sub. The respective obligations of Parent and Merger Sub to effect the Merger are subject to the satisfaction (at or waiver by Parent in its sole discretion) prior to the Effective Time of the following further conditions: (a) The the representations and warranties of the Company set forth contained in this Agreement (without regard to materiality or Company Material Adverse Effect qualifiers contained therein), Article III shall be true and correct at and as of the date of this Agreement and the Closing Date as if made at and as of such date the Effective Time (except to the extent that such for representations and warranties refer specifically that expressly relate to an earlier date, in a specific date prior to the Effective Time which case such representations and warranties shall have been need only be true and correct as of such earlier date); provided, except where the failure of however, that this condition shall be deemed satisfied unless any and all inaccuracies in the representations and warranties contained in Article III, in the aggregate, result in a Material Adverse Effect on the Company (ignoring for the purposes of this Section any qualifications by Material Adverse Effect or otherwise by material adversity and any materiality qualification or words of similar import contained in such representations or warranties), and, at the Closing, the Company shall have delivered to Parent a certificate signed by its chief executive officer and chief financial officer to that effect; (b) each of the covenants and obligations of the Company to be true and correct, individually performed at or in before the aggregate has not had and would not reasonably be expected Effective Time pursuant to the terms of this Agreement shall have a Company Material Adverse Effect; provided, that the representations and warranties set forth in Sections 3.1, 3.2 and 3.5 shall be true and correct been duly performed in all material respects at or before the Effective Time and, at the Closing, the Company shall have delivered to Parent a certificate signed by its chief executive officer and as of chief financial officer to that effect; (c) no Material Adverse Effect on the Company shall have occurred since the date of this Agreement, and, at the Closing, the Company shall have delivered to Parent a certificate signed by its chief executive officer and chief financial officer to that effect; (d) the Escrow Agreement substantially in the form of Exhibit A hereto, shall have been duly executed and delivered by the Holder Representative and the Closing Date Escrow Agent; (e) the holders of not more than 5% of the outstanding shares of Common Stock and Preferred Stock (calculated, with respect to the Preferred Stock, on an as-converted basis) in the aggregate shall have exercised their appraisal rights in accordance with Section 262 of the DGCL; (f) Intentionally omitted; (g) the employees of the Company listed in Section 6.2(g) of the Disclosure Schedule shall have signed (as if indicated on the Section 6.2(g) of the Disclosure Schedule) employment agreements in the form attached hereto as Exhibit G or employment continuation letters; (h) the Company shall have delivered to Parent the Company Transaction Expense Notice, pursuant to Section 2.12(b) and the updated Merger Consideration Schedule pursuant to Section 2.12(c); (i) the Company shall have delivered to Parent the payoff letters and Encumbrance-release documentation pursuant to Section 2.12(f); (j) holders of eighty-five percent (85%) of the outstanding shares of Preferred Stock and holders of eighty-five percent (85%) of the outstanding Common Stock shall have executed the written consent in the form attached as Exhibit F hereto approving, among other things, a schedule identical to the Merger Consideration Schedule setting forth the estimated payments to be made by Parent with respect to the Preferred Stock, Common Stock, In-the-Money Options and In-the-Money Warrants in accordance with the terms hereof; (k) Parent shall have received legal opinions from Pxxxxx Xxxxxxxx, Meitar, Liquornik, Geva & Leshem Bxxxxxxxx and Oxxxxxxx Xxxxxx in the forms attached hereto as of such date. Exhibit H; and (l) Parent shall have received a certificate dated executed by the Secretary of the Company certifying as of the Closing Date signed on behalf (i) a true and complete copy of the Company by the chief executive officer or the chief financial officer of the Charter and Company to the effect of the foregoing. (b) The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoing. (c) There shall not have occurred any event, occurrence or change that has had, or would reasonably be expected to have, a Company Material Adverse Effect. (d) No Action shall be pending by a Governmental Entity (i) seeking to prevent consummation of the Merger, By-Laws and (ii) seeking incumbency matters with respect to impose any limitation on the right of Parent to control the Company and its Subsidiaries or any other Affiliate of Parent, or (iii) seeking to restrain or prohibit the Company’s or Parent’s ownership or operation (or that of their respective Subsidiaries or Affiliates) of any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliates, or to compel the Company or Parent or any of their respective Subsidiaries or Affiliates to dispose of or hold separate any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliates.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and the Merger Sub to effect the Merger are is subject to the satisfaction (or or, to the extent permitted under applicable law, waiver by Parent in its sole discretionand the Merger Sub) on or prior to the Closing Date of the following further conditions: (a) The Each of the representations and warranties of the Company set forth CASH contained in this Agreement (without regard to materiality or Company Material Adverse Effect qualifiers contained therein), shall be true and correct at in all respects (in the case of any representation or warranty qualified by materiality or CASH Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or CASH Material Adverse Effect) on and as of the date hereof and on and as of this Agreement and the Closing Date with the same effect as if though made at and as of such date (except to the extent that such those representations and warranties refer specifically to an earlier that address matters only as of a specified date, in the accuracy of which case such representations and warranties shall have been true and correct be determined as of such earlier datethat specified date in all respects), except where and the failure contents of the representations and warranties to be true and correct, individually or in the aggregate has not had and would not reasonably be expected to have a Company Material Adverse Effect; provided, that the representations and warranties set forth in Sections 3.1, 3.2 and 3.5 all Schedules shall be true and correct in all material respects at and as of the date of this Agreement and the Closing Date as if made as of such date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoingreasonably acceptable. (b) The Company CASH shall have performed in all material respects all agreements, obligations and covenants required to be performed by it CASH under this Agreement at or prior to the Closing Date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoingClosing. (c) There The approval of the Merger, in compliance with the CASH Charter Documents, and the DGCL, by CASH’s board of directors and holders of a majority of CASH Common Stock shall not have occurred been obtained at or prior to Closing and no holders shall have exercised any event, occurrence or change that has had, or would reasonably be expected to have, a Company Material Adverse Effectappraisal rights. (d) No Action A certificate of good standing of CASH from its jurisdiction of incorporation dated a date reasonably proximate to the Closing Date. (e) Parent shall have received such other certificates, instruments and documents as may reasonably be pending requested by a Governmental Entity Parent. (if) seeking to prevent consummation CASH shall not have filed for protection under any applicable bankruptcy laws nor has any 3rd party commenced such an action against CASH. (g) CASH shall have executed and delivered this Agreement and each of the Merger, shareholders listed on Schedule 4.8(i) shall have signed and delivered this Agreement acknowledging their duties and restrictions pursuant to Section 4.8. (iih) seeking All liabilities aside from those listed on Schedule 5.1(l) shall have been satisfied prior to impose any limitation on the right of Parent to control the Company and its Subsidiaries or any other Affiliate of Parent, or (iii) seeking to restrain or prohibit the Company’s or Parent’s ownership or operation (or that of their respective Subsidiaries or Affiliates) of any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or Affiliates, or to compel the Company or Parent or any of their respective Subsidiaries or Affiliates to dispose of or hold separate any portion of the business or assets of the Company or Parent or any of their respective Subsidiaries or AffiliatesClosing.