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 and the other transactions contemplated by this Agreement are subject to the satisfaction or (to the extent permitted by Law) waiver by Parent at or prior to the Effective Time of the following additional conditions: (a) (i) the representations and warranties of the Company contained in 3.2(a), 3.2(c)(i), 3.2(c)(ii), 3.2(c)(iv) (in each foregoing clause of Section 3.2(c), with respect to the Company and the Securities thereof), 3.3, 3.4, 3.5(a)(i), 3.7(b), 3.26, and 3.28 shall be true and correct in all respects (except in the case of Sections 3.2(a), 3.2(c)(i), 3.2(c)(ii), and 3.2(c)(iv) (in each foregoing clause of Section 3.2(c), with respect to the Company and the Securities thereof) for any de minimis inaccuracy) both as of the date of this Agreement and as of the Effective Time as if made at and as of such time (other than any such representation or warranty that is made as of a specified date, which representation or warranty shall be so true and correct as of such specified date), (ii) the representations and warranties of the Company contained in Sections 3.1(a), 3.2(b), 3.2(c)(iii), 3.2(d), 3.2(e), and 3.27 (without giving effect to any materiality, Company Material Adverse Effect or similar qualifiers contained therein) shall be true and correct in all material respects both as of the date of this Agreement and as of the Effective Time as if made at and as of such time (other than any such representation or warranty that is made as of a specified date, which representation or warranty shall be so true and correct as of such specified date), and (iii) the other representations and warranties of the Company contained in this Agreement (without giving effect to any materiality, Company Material Adverse Effect or similar qualifiers contained therein) shall be true and correct both as of the date of this Agreement and as of the Effective Time as if made at and as of such time (other than any such representation or warranty that is made as of a specified date, which representation or warranty shall be so true and correct as of such specified date), except where the failure of such 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; (b) the Company shall have performed or complied in all material respects with its obligations required under this Agreement to be performed or complied with on or prior to the Effective Time; (c) since the date of this Agreement, there shall not have been any effect, change, development, event, circumstance, occurrence, condition, fact or state of facts that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; (d) Parent shall have received a certificate signed by an executive officer of the Company certifying as to the matters set forth in Section 6.2(a), Section 6.2(b) and Section 6.2(c); and (e) there shall not be any pending Proceeding in a U.S. federal district court by any Governmental Authority against Merger Sub, Parent, the Company or any of their respective Subsidiaries (i) seeking to restrain or prohibit Parent or Merger Sub from retaining any portion of Parent’s or Merger Sub’s assets or to restrain or prohibit Parent or Merger Sub from acquiring any material portion of the Company’s or any of its Subsidiaries’ businesses or assets, or to compel Parent or Merger Sub or their respective Subsidiaries and affiliates to dispose of or hold separate any portion of the business or assets of the Company, Parent or their respective Subsidiaries in connection with the Merger; (ii) challenging, seeking to restrain or prohibit the Merger or the other transactions contemplated by the Agreement or seeking to obtain from the Company, Parent or Merger Sub any material damages or other remedy in connection with the Merger; (iii) seeking to impose material limitations on the ability of Merger Sub, or render Merger Sub unable, to consummate the Merger or other transactions contemplated by this Agreement; or (iv) seeking to impose limitations on the ability of Merger Sub or Parent to exercise full rights of ownership of the shares of Company Common Stock; provided, however, that this Section 6.2(e) shall not be operative with respect to any such Proceeding in which a U.S. federal district court of competent jurisdiction has considered and denied a Governmental Authority’s motion for preliminary injunction; and provided, further, however, that this Section 6.2(e) shall be deemed to be fulfilled and satisfied and of no further force and effect after June 29, 2019.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger and the other transactions contemplated by this Agreement are subject to the satisfaction or (to the extent permitted by Law) waiver by Parent at or prior to the Effective Time of the following additional conditions: (a) (i) the representations and warranties of the Company contained in Section 3.2(a), 3.2(c)(i), 3.2(c)(ii), 3.2(c)(iv) (in each foregoing clause of Section 3.2(c), with respect to the Company ) and the Securities thereof), 3.3, 3.4, 3.5(a)(i), Section 3.7(b), 3.26, and 3.28 ) shall be true and correct in all respects (except in the case of Sections Section 3.2(a), 3.2(c)(i), 3.2(c)(ii), ) and 3.2(c)(iv) (in each foregoing clause of Section 3.2(c), with respect to the Company and the Securities thereof) for any de minimis inaccuracy) both as of the date of this Agreement and as of the Effective Time as if made at and as of such time (other than any such representation or warranty that is made as of a specified date, which representation or warranty shall be so true and correct as of such specified date), (ii) the representations and warranties of the Company contained in Sections Section 3.1(a), 3.2(bSection 3.3, Section 3.5(a)(i)(A), 3.2(c)(iii)Section 3.26, 3.2(d), 3.2(e), Section 3.27 and 3.27 Section 3.28 (without giving effect to any materiality, Company Material Adverse Effect or similar qualifiers contained therein) shall be true and correct in all material respects both as of the date of this Agreement and as of the Effective Time as if made at and as of such time the Effective Time (other than any such representation or warranty that is made as of a specified datedate or time, which representation or warranty shall be so true and correct as of such specified datedate or time), and (iii) the other representations and warranties of the Company contained in Article III of this Agreement (without giving effect to any materiality, Company Material Adverse Effect or similar qualifiers contained therein) shall be true and correct both as of the date of this Agreement and as of the Effective Time as if made at and as of such time the Effective Time (other than any such representation or warranty that is made as of a specified datedate or time, which representation or warranty shall be so true and correct as of such specified datedate or time), except where the failure of such 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; (b) the Company shall have performed or complied in all material respects with its obligations required under covenants and agreements contained in this Agreement to be performed or complied with on or prior to the Effective Time; (c) since the date of this Agreement, there shall not have been any effect, change, development, event, circumstance, occurrence, condition, fact or state of facts that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; (d) the Company shall have delivered executed Preferred Stockholder Letters from each holder of Company Preferred Stock; and (e) Parent shall have received a certificate signed by an executive officer of the Company certifying as to the matters set forth in Section 6.2(a), Section 6.2(b) ), and Section 6.2(c); and (e) there shall not be any pending Proceeding in a U.S. federal district court by any Governmental Authority against Merger Sub, Parent, the Company or any of their respective Subsidiaries (i) seeking to restrain or prohibit Parent or Merger Sub from retaining any portion of Parent’s or Merger Sub’s assets or to restrain or prohibit Parent or Merger Sub from acquiring any material portion of the Company’s or any of its Subsidiaries’ businesses or assets, or to compel Parent or Merger Sub or their respective Subsidiaries and affiliates to dispose of or hold separate any portion of the business or assets of the Company, Parent or their respective Subsidiaries in connection with the Merger; (ii) challenging, seeking to restrain or prohibit the Merger or the other transactions contemplated by the Agreement or seeking to obtain from the Company, Parent or Merger Sub any material damages or other remedy in connection with the Merger; (iii) seeking to impose material limitations on the ability of Merger Sub, or render Merger Sub unable, to consummate the Merger or other transactions contemplated by this Agreement; or (iv) seeking to impose limitations on the ability of Merger Sub or Parent to exercise full rights of ownership of the shares of Company Common Stock; provided, however, that this Section 6.2(e) shall not be operative with respect to any such Proceeding in which a U.S. federal district court of competent jurisdiction has considered and denied a Governmental Authority’s motion for preliminary injunction; and provided, further, however, that this Section 6.2(e) shall be deemed to be fulfilled and satisfied and of no further force and effect after June 29, 2019.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Xxxxxx Sub to effect consummate the Merger and the other transactions contemplated by this Agreement Transactions are subject to the satisfaction or (satisfaction, or, to the extent permitted by Applicable Law) , waiver by Parent of, at or prior to the Effective Time Closing, of the following additional conditions: (a) (i) the representations and warranties of the Company contained set forth in 3.2(aSection 4.04(a), 3.2(c)(iSection 4.04(b), 3.2(c)(ii), 3.2(c)(ivSection 4.04(d) and Section 4.04(e) shall have been true and correct in all respects (in each foregoing clause subject to de minimis inaccuracies) as of Section 3.2(c), with respect to the Company date of this Agreement and the Securities thereof), 3.3, 3.4, 3.5(a)(i), 3.7(b), 3.26, and 3.28 shall be true and correct in all respects (except in the case of Sections 3.2(a), 3.2(c)(i), 3.2(c)(ii), and 3.2(c)(iv) (in each foregoing clause of Section 3.2(c), with respect subject to the Company and the Securities thereof) for any de minimis inaccuracyinaccuracies) both as of the date of this Agreement and Closing Date with the same effect as if made as of the Effective Time Closing Date (provided that those representations and warranties that address matters only as if made at of a particular date need only have been true and correct in all material respects as of such time (other than any such representation or warranty that is made as of a specified date, which representation or warranty shall be so true and correct as of such specified date), ; (ii) the representations and warranties of the Company contained set forth in Sections 3.1(aSection 4.01(a), 3.2(bSection 4.02, Section 4.13(a), 3.2(c)(iiiSection 4.13(b), 3.2(dSection 4.13(c), 3.2(eSection 4.13(d), Section 4.13(e), Section 4.13(f), Section 4.13(i), Section 4.13(j), Section 4.13(k), Section 4.25 and 3.27 (without giving effect to any materiality, Company Material Adverse Effect or similar qualifiers contained therein) Section 4.26 shall have been true and correct in all material respects as of the date of this Agreement and shall be true and correct in all material respects both as of the Closing Date with the same effect as if made as of the Closing Date (provided that those representations and warranties that address matters only as of a particular date need only have been true and correct in all material respects as of such date); (iii) all of the representations and warranties of the Company set forth in Article 4 that are not referred to in clause (i) or clause (ii) above shall have been true and correct as of the date of this Agreement and shall be true and correct as of the Effective Time Closing Date with the same effect as if made at and as of such time the Closing Date (other than any such representation or warranty provided that is made those representations and warranties that address matters only as of a specified date, which representation or warranty shall be so particular date need only have been true and correct as of such specified date), and (iii) the other representations and warranties of the Company contained in this Agreement (without giving effect to any “materiality, ,” “Company Material Adverse Effect Effect” or similar qualifiers contained therein) shall be true and correct both as of the date of this Agreement and as of the Effective Time as if made at and as in any of such time (other than any such representation or warranty that is made as of a specified date, which representation or warranty shall be so true representations and correct as of such specified date)warranties, except where for those instances in which the failure of such representations and warranties to be so true and correctcorrect would not have had and would not have, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Company Material Adverse Effect; (b) the Company shall have performed or complied in all material respects with its obligations required to be performed by it under this Agreement to be performed or complied with on at or prior to the Effective TimeClosing; (c) since the date of this Agreement, there shall not have been any effect, change, development, event, circumstance, occurrence, condition, fact or state of facts that has had or would reasonably be expected to have, individually or in the aggregate, a no Company Material Adverse EffectEffect shall have occurred and be continuing; (d) Parent shall have received a certificate validly signed on behalf of the Company by an a duly authorized executive officer of the Company certifying as to that the matters conditions set forth in Section 6.2(a7.02(a), Section 6.2(b7.02(b) and Section 6.2(c)7.02(c) have been satisfied; and (e) there the Company shall not be any pending Proceeding have delivered customary payoff letters and related lien releases (with drafts delivered at least two (2) days prior to the Closing Date) with respect to all Indebtedness for borrowed money of the Company and the Company Subsidiaries that in a U.S. federal district court each case (i) sets forth the principal amount then outstanding owed by any Governmental Authority against Merger Sub, Parent, the Company or any of their respective Subsidiaries the Company Subsidiaries, together with interest, fees and other obligations outstanding thereunder, and the per diem amounts (iif applicable) seeking necessary to restrain or prohibit Parent or Merger Sub from retaining any portion of Parent’s or Merger Sub’s assets or calculate the amount to restrain or prohibit Parent or Merger Sub from acquiring any material portion pay off all such principal, interest, interest, fees and other obligations as of the Company’s or any of its Subsidiaries’ businesses or assetsClosing Date, or to compel Parent or Merger Sub or their respective Subsidiaries and affiliates to dispose of or hold separate any portion of the business or assets of the Company, Parent or their respective Subsidiaries in connection with the Merger; (ii) challengingprovides for the discharge of all obligations of the Company and the Company Subsidiaries under the agreements governing such Indebtedness and any related loan documents (other than indemnification agreements governing such Indebtedness and any related loan documents (other than indemnification obligations that survive in accordance with their terms) and the release of all Liens, seeking to restrain or prohibit the Merger or the other transactions contemplated by the Agreement or seeking to obtain from the Company, Parent or Merger Sub any material damages or other remedy in connection with the Merger; (iii) seeking an authorization to impose material limitations on the ability of Merger Subfile or otherwise deliver all termination statements, releases, or render Merger Sub unable, notices necessary to consummate evidence satisfaction of such obligations and to enable the Merger or other transactions contemplated by this Agreement; or release of any Liens relating thereto and (iv) seeking to impose limitations on the ability extent not terminated, provides for the backstopping of Merger Sub or Parent to exercise full rights any existing letter of ownership of the shares of Company Common Stock; provided, however, that this Section 6.2(e) shall not be operative with respect to any such Proceeding in which a U.S. federal district court of competent jurisdiction has considered and denied a Governmental Authority’s motion for preliminary injunction; and provided, further, however, that this Section 6.2(e) shall be deemed to be fulfilled and satisfied and of no further force and effect after June 29, 2019credit.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger and the other transactions contemplated by this Agreement are subject to the satisfaction or (to the extent permitted by Law) waiver by Parent at or prior to the Effective Time of the following additional conditions: (a) (i) the representations and warranties of the Company contained in 3.2(a), 3.2(c)(i), 3.2(c)(ii), 3.2(c)(iv) (in each foregoing clause of Section 3.2(c), with respect to the Company and the Securities thereof), 3.3, 3.4, 3.5(a)(i), 3.7(b), 3.26, 3.27, 3.28, and 3.28 3.29 shall be true and correct in all respects (except in the case of Sections 3.2(a), 3.2(c)(i), 3.2(c)(ii), ) and 3.2(c)(iv) (in each foregoing clause of Section 3.2(c), with respect to the Company and the Securities thereof) for any de minimis inaccuracy) both as of the date of this Agreement and as of the Effective Time as if made at and as of such time the Effective Time (other than any such representation or warranty that is made as of a specified date, which representation or warranty shall be so true and correct as of such specified date), (ii) the representations and warranties of the Company contained in Sections 3.1(a)3.1, 3.2(b), 3.2(c)(iii), 3.2(d), ) and 3.2(e), and 3.27 ) (without giving effect to any materiality, Company Material Adverse Effect or similar qualifiers contained therein) shall be true and correct in all material respects both as of the date of this Agreement and as of the Effective Time as if made at and as of such time the Effective Time (other than any such representation or warranty that is made as of a specified date, which representation or warranty shall be so true and correct as of such specified date), and (iii) the other representations and warranties of the Company contained in this Agreement (without giving effect to any materiality, Company Material Adverse Effect or similar qualifiers contained therein) shall be true and correct both as of the date of this Agreement and as of the Effective Time as if made at and as of such time the Effective Time (other than any such representation or warranty that is made as of a specified date, which representation or warranty shall be so true and correct as of such specified date), except where the failure of such 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; (b) the Company shall have performed or complied in all material respects with its obligations required under this Agreement to be performed or complied with on or prior to the Effective Time; (c) since the date of this Agreement, there shall not have been any effect, change, development, event, circumstance, occurrence, condition, fact or state of facts that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; (d) Parent shall have received a certificate signed by an executive officer of the Company certifying as to the matters set forth in Section 6.2(a), Section 6.2(b) and Section 6.2(c); and (e) there shall not be any pending Proceeding in a U.S. federal district court by any Governmental Authority against Merger Sub, Parent, the Company or any of their respective Subsidiaries (i) seeking to restrain or prohibit Parent or Merger Sub from retaining any portion of Parent’s or Merger Sub’s assets or to restrain or prohibit Parent or Merger Sub from acquiring any material portion of the Company’s or any of its Subsidiaries’ businesses or assets, or to compel Parent or Merger Sub or their respective Subsidiaries and affiliates to dispose of or hold separate any portion of the business or assets of the Company, Parent or their respective Subsidiaries in connection with the MergerSubsidiaries; (ii) challenging, seeking to restrain or prohibit the Merger or the other transactions contemplated by the Agreement or seeking to obtain from the Company, Parent or Merger Sub any material damages or other remedy in connection with the Mergerremedy; (iii) seeking to impose material limitations on the ability of Merger Sub, or render Merger Sub unable, to consummate the Merger or other transactions contemplated by this Agreement; or (iv) seeking to impose limitations on the ability of Merger Sub or Parent to exercise full rights of ownership of the shares of Company Common Stock; provided, however, that this Section 6.2(e) shall not be operative with respect to any such Proceeding in which a U.S. federal district court of competent jurisdiction has considered and denied a Governmental Authority’s motion for preliminary injunction; and provided, further, however, that this Section 6.2(e) shall be deemed to be fulfilled and satisfied and of no further force and effect after June 29October 7, 20192018.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger and the other transactions contemplated by this Agreement are further subject to the satisfaction or (to the extent permitted by Law) waiver by Parent at or prior to the Effective Time of the following additional conditions: (a) (i) the representations and warranties of the Company contained in 3.2(athe first two sentences of ‎Section 4.05(a), 3.2(c)(i)the first sentence of ‎Section 4.05(b) and the second sentence of ‎Section 4.26, 3.2(c)(ii), 3.2(c)(iv) (in each foregoing clause of Section 3.2(c)case, with respect to the Company and the Securities thereof), 3.3, 3.4, 3.5(a)(i), 3.7(b), 3.26, and 3.28 shall be true and correct in all respects (except where the failure to be so true and correct would not reasonably be expected to result in additional cost, expense or liability to the Company, Parent and their Affiliates, individually or in the case of Sections 3.2(a)aggregate, 3.2(c)(i), 3.2(c)(ii), that is more than $15,000,000) at and 3.2(c)(iv) (in each foregoing clause of Section 3.2(c), with respect to the Company and the Securities thereof) for any de minimis inaccuracy) both as of the date Effective Time as if made at and as of such time, (ii) the representations and warranties of the Company contained in the first sentence of ‎Section 4.01, ‎Section 4.02, ‎Section 4.04(a), ‎Section 4.05(a) (only to the extent not addressed by clause ‎(i) of this Agreement ‎Section 9.02(a)), ‎Section 4.05(b) (only to the extent not addressed by clause ‎(i) of this ‎Section 9.02(a)), the first sentence of ‎Section 4.06(b) and ‎Section 4.26 (only to the extent not addressed by clause ‎(i) of this ‎Section 9.02(a)) shall be true in all material respects at and as of the Effective Time as if made at and as of such time (other than any such representation or warranty representations and warranties that is made by their terms address matters only as of a another specified datetime, which representation or warranty shall be so true and correct only as of such specified datetime), (iiiii) the representations and warranties of the Company contained in Sections 3.1(a), 3.2(b), 3.2(c)(iii), 3.2(d), 3.2(e)Section 4.10(a)(ii) shall be true in all respects at and as of the Effective Time as if made at and as of such time, and 3.27 (without giving effect to any materiality, iv) the other representations and warranties of the Company contained in ‎Article 4 (disregarding all materiality and Company Material Adverse Effect or similar qualifiers qualifications contained therein) shall be true and correct in all material respects both as of the date of this Agreement at and as of the Effective Time as if made at and as of such time (other than any such representation or warranty representations and warranties that is made by their terms address matters only as of a another specified datetime, which representation or warranty shall be so true and correct only as of such specified datetime), and (iii) with, in the other representations and warranties of the Company contained in this Agreement (without giving effect to any materiality, Company Material Adverse Effect or similar qualifiers contained therein) shall be true and correct both as of the date case of this Agreement and clause (iv) only, only such exceptions as of the Effective Time as if made at and as of such time (other than any such representation or warranty that is made as of a specified date, which representation or warranty shall be so true and correct as of such specified date), except where the failure of such representations and warranties to be true and correct, individually or in the aggregate, has have not had, had and would not reasonably be expected to have, a Company Material Adverse Effect; (b) the Company shall have performed or complied in all material respects with its obligations required under this Agreement to be performed or complied with on or prior to the Effective Time; (c) since the date of this Agreement, there shall not have been any effect, change, development, event, circumstance, occurrence, condition, fact or state of facts that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; (b) the Company shall not have breached or failed to perform or comply with in any material respect any of its obligations and covenants under this Agreement contemplated to be performed or complied with prior to the Effective Time; (c) since the date hereof, there shall not have occurred a Company Material Adverse Effect or any event, change, circumstance, effect, occurrence, condition, state of facts or development that, individually or in the aggregate, is reasonably expected to have a Company Material Adverse Effect; and (d) Parent the Company shall have received delivered to Parent a certificate signed by an executive officer of the Company dated as of the Closing Date certifying as to that the matters set forth conditions specified in Section 6.2(a‎Section 9.02(a), Section 6.2(b‎Section 9.02(b) and Section 6.2(c); and (e‎Section 9.02(c) there shall not be any pending Proceeding in a U.S. federal district court by any Governmental Authority against Merger Sub, Parent, the Company or any of their respective Subsidiaries (i) seeking to restrain or prohibit Parent or Merger Sub from retaining any portion of Parent’s or Merger Sub’s assets or to restrain or prohibit Parent or Merger Sub from acquiring any material portion of the Company’s or any of its Subsidiaries’ businesses or assets, or to compel Parent or Merger Sub or their respective Subsidiaries and affiliates to dispose of or hold separate any portion of the business or assets of the Company, Parent or their respective Subsidiaries in connection with the Merger; (ii) challenging, seeking to restrain or prohibit the Merger or the other transactions contemplated by the Agreement or seeking to obtain from the Company, Parent or Merger Sub any material damages or other remedy in connection with the Merger; (iii) seeking to impose material limitations on the ability of Merger Sub, or render Merger Sub unable, to consummate the Merger or other transactions contemplated by this Agreement; or (iv) seeking to impose limitations on the ability of Merger Sub or Parent to exercise full rights of ownership of the shares of Company Common Stock; provided, however, that this Section 6.2(e) shall not be operative with respect to any such Proceeding in which a U.S. federal district court of competent jurisdiction has considered and denied a Governmental Authority’s motion for preliminary injunction; and provided, further, however, that this Section 6.2(e) shall be deemed to be fulfilled and satisfied and of no further force and effect after June 29, 2019have been satisfied.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger and the other transactions contemplated by this Agreement are subject to the satisfaction or (to the extent permitted by Law) waiver by Parent at or prior to the Effective Time of the following additional conditions: (a) (i) the representations and warranties of the Company contained in Sections 3.2(a), 3.2(c)(i3.2(b), 3.2(c)(ii3.2(d)(i), 3.2(c)(iv3.2(d)(ii), 3.2(d)(iv) (in each foregoing clause of Section 3.2(c3.2(d), with respect to the Company and its Subsidiaries and the Securities thereof), 3.3, 3.4, 3.5(a)(i), 3.7(b), 3.263.27, 3.28, and 3.28 3.29 shall be true and correct in all respects (except in the case of Sections 3.2(a), 3.2(c)(i3.2(d)(i), 3.2(c)(ii3.2(d)(ii), and 3.2(c)(iv3.2(d)(iv) (in each foregoing clause of Section 3.2(c3.2(d), with respect to the Company and its Subsidiaries and the Securities thereof) for any de minimis inaccuracy) both as of the date of this Agreement and as of the Effective Time as if made at and as of such time (other than any such representation or warranty that is made as of a specified date, which representation or warranty shall be so true and correct as of such specified date), (ii) the representations and warranties of the Company contained in Sections 3.1(a3.1, 3.2(c), 3.2(b), 3.2(c)(iii), 3.2(d3.2(d)(iii), 3.2(e), and 3.27 3.2(f), (without giving effect to any materiality, Company Material Adverse Effect or similar qualifiers contained therein) shall be true and correct in all material respects both as of the date of this Agreement and as of the Effective Time as if made at and as of such time (other than any such representation or warranty that is made as of a specified date, which representation or warranty shall be so true and correct as of such specified date), and (iii) the other representations and warranties of the Company contained in this Agreement (without giving effect to any materiality, Company Material Adverse Effect or similar qualifiers contained therein) shall be true and correct both as of the date of this Agreement and as of the Effective Time as if made at and as of such time (other than any such representation or warranty that is made as of a specified date, which representation or warranty shall be so true and correct as of such specified date), except where the failure of such 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; (b) the Company shall have performed or complied in all material respects with its obligations required under this Agreement to be performed or complied with on or prior to the Effective Time; (c) since the date of this Agreement, there shall not have been any effect, change, development, event, circumstance, occurrence, condition, fact or state of facts that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; (d) Parent shall have received a certificate signed by an executive officer of the Company certifying as to the matters set forth in Section 6.2(a), Section 6.2(b) and Section 6.2(c); (e) the Company shall obtain and deliver to Parent on or prior to the Closing Date, a copy of any necessary consent or agreement from each holder of a Company Option to effectuate the requirements of Section 2.3, in form and substance reasonably acceptable to Parent, with respect to each Company Option, in each case, executed by the Company and the holder of such Company Option, such that as of the Effective Time, there shall be no outstanding Company Options; (f) all Warrants shall have been exercised for shares of Company Common Stock or terminated, such that as of the Effective Time, there shall be no outstanding Warrants; (g) The Company shall obtain and deliver to Parent on or prior to the Closing Date, a copy of any necessary consent or other instrument from each of the holders of Company Preferred Stock to effectuate the conversion of all shares of Company Preferred Stock into Company Common Stock in accordance with the terms of the Certificate of Incorporation, in form and substance reasonably acceptable to Parent, such that immediately prior to the Effective Time, there shall be no outstanding shares of Company Preferred Stock; and (eh) there shall not be any pending Proceeding in a U.S. federal district court by any Governmental Authority against Merger Sub, Parent, the Company or any of their respective Subsidiaries or Affiliates (i) seeking to restrain or prohibit Parent or Merger Sub or any of their respective Affiliates from retaining any portion of Parent’s or Merger Sub’s or such Affiliates’ assets or to restrain or prohibit Parent or Merger Sub from acquiring any material portion of the Company’s or any of its Subsidiaries’ businesses or assets, or to compel Parent or Merger Sub or their respective Subsidiaries and affiliates Affiliates to dispose of or hold separate any portion of the business or assets of the Company, Parent or their respective Subsidiaries or Affiliates in connection with the Merger; (ii) challenging, seeking to restrain or prohibit the Merger or the other transactions contemplated by the Agreement or seeking to obtain from the Company, Parent or Merger Sub or their respective Affiliates any material damages or other remedy in connection with the Merger; (iii) seeking to impose material limitations on the ability of Merger Sub, or render Merger Sub unable, to consummate the Merger or other transactions contemplated by this Agreement; or (iv) seeking to impose limitations on the ability of Merger Sub or Parent to exercise full rights of ownership of the shares of Company Common Stock; provided, however, that this Section 6.2(e) shall not be operative with respect to any such Proceeding in which a U.S. federal district court of competent jurisdiction has considered and denied a Governmental Authority’s motion for preliminary injunction; and provided, further, however, that this Section 6.2(e) shall be deemed to be fulfilled and satisfied and of no further force and effect after June 29, 2019.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger and the other transactions contemplated by this Agreement are shall be subject to the satisfaction or (to the extent permitted by Law) waiver by Parent fulfillment at or prior to before the Effective Time of the following additional conditions, any one or more of which (except for the conditions set forth in Sections 5.01(b) and (f)) may be waived by Parent and Merger Sub: (a) (i) the The representations and warranties of the Company contained in 3.2(aSection 3.01 of this Agreement (other than those contained in Sections 3.01(a), 3.2(c)(i3.01(b), 3.2(c)(ii3.01(n), 3.2(c)(iv) (in each foregoing clause of Section 3.2(c3.01(o), with respect to 3.01(t) and 3.01(y) which are covered by the Company and the Securities thereof), 3.3, 3.4, 3.5(a)(i), 3.7(b), 3.26, and 3.28 next sentence) shall be true and correct in all respects (except in the case of Sections 3.2(a), 3.2(c)(i), 3.2(c)(ii), and 3.2(c)(iv) (in each foregoing clause of Section 3.2(c), with respect to the Company and the Securities thereof) for any de minimis inaccuracy) both as of the date of this Agreement and as of immediately before the Effective Time as if though made at and as of such time (other than immediately before the Effective Time, except to the extent any inaccuracies in any such representation or warranty, individually or in the aggregate, do not materially impair the ability of the Company to consummate the transactions contemplated hereby and has not had and would not reasonably be expected to have a Material Adverse Effect (provided that, solely for purposes of this sentence of Section 5.01(a), any representation or warranty in Section 3.01 that is made qualified by Material Adverse Effect language or other materiality qualifier shall be read as if such language were not present), and except with respect to those representations and warranties that speak of a specified an earlier date, which representation or warranty shall be so true and correct (to the same degree as otherwise required under this Section 5.01(a)) as of such specified earlier date), (ii) the . The representations and warranties of the Company contained set forth in Sections 3.1(a3.01(a), 3.2(b3.01(b), 3.2(c)(iii3.01(n), 3.2(d3.01(o), 3.2(e), 3.01(t) and 3.27 (without giving effect to any materiality, Company Material Adverse Effect or similar qualifiers contained therein3.01(y) shall be true and correct in all material respects both as of the date of this Agreement and as of immediately before the Effective Time as though made immediately before the Effective Time (or, if made at and given as of a specific date, as of such time (other than any such representation or warranty that is made as of a specified date, which representation or warranty shall be so true and correct as of such specified date), and (iii) the other representations and warranties of the Company contained in this Agreement (without giving effect to any materiality, Company Material Adverse Effect or similar qualifiers contained therein) shall be true and correct both as of the date of this Agreement and as of the Effective Time as if made at and as of such time (other than any such representation or warranty that is made as of a specified date, which representation or warranty shall be so true and correct as of such specified date), except where the failure of such 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;. (b) the The Company shall have performed or and complied in all material respects with its the agreements and obligations required under contained in this Agreement required to be performed or and complied with on or prior to by it immediately before the Effective Time; (c) since the date of this Agreement, there shall not have been any effect, change, development, event, circumstance, occurrence, condition, fact or state of facts that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; (d) ; and Parent and Merger Sub shall have received a certificate signed by an executive officer of the Company certifying as to the matters effects set forth in this Section 6.2(a5.01(b). (c) This Agreement shall have been approved at the Shareholders Meeting by the vote required by the OGCL and the Company’s Articles of Incorporation and the Company shall have received the Company Shareholder Approval. (d) Neither the Company nor any Subsidiary shall have, Section 6.2(b) and Section 6.2(c); andsince the date of this Agreement, suffered any business interruption, damage to or destruction of its properties or other incident, occurrence, change or event that has had or would reasonably be expected to have a Material Adverse Effect. (e) there There shall not be pending any pending Proceeding in a U.S. federal district court action or proceeding brought by any Governmental Authority against Merger Subgovernmental or other regulatory or administrative agency or commission requesting or looking toward an injunction, writ, order, judgment or decree that, in the reasonable judgment of Parent, the Company or any of their respective Subsidiaries (i) seeking to restrain or prohibit Parent or Merger Sub from retaining any portion of Parent’s or Merger Sub’s assets or to restrain or prohibit Parent or Merger Sub from acquiring any material portion of the Company’s or any of its Subsidiaries’ businesses or assetsis reasonably likely, or to compel Parent or Merger Sub or their respective Subsidiaries and affiliates to dispose of or hold separate any portion of the business or assets of the Companyif issued, Parent or their respective Subsidiaries in connection with the Merger; (ii) challenging, seeking to restrain or prohibit the Merger or consummation of any of the other transactions contemplated by the hereby or require rescission of this Agreement or seeking to obtain from any such transactions, nor shall there be in effect any provision of applicable Law prohibiting the Company, Parent or Merger Sub any material damages or other remedy in connection with the Merger; (iii) seeking to impose material limitations on the ability consummation of Merger Sub, or render Merger Sub unable, to consummate the Merger or any injunction, writ, judgment, preliminary restraining order or other transactions contemplated order or decree of any nature issued by this Agreement; a court or (iv) seeking to impose limitations on the ability of Merger Sub or Parent to exercise full rights of ownership of the shares of Company Common Stock; provided, however, that this Section 6.2(e) shall not be operative with respect to any such Proceeding in which a U.S. federal district court governmental agency of competent jurisdiction has considered and denied a Governmental Authority’s motion directing that any of the transactions provided for preliminary injunction; and herein not be consummated as so provided. (f) [Intentionally Omitted]. (g) All actions by or in respect of or filings with any governmental body, furtheragency, however, that this Section 6.2(eofficial or authority required to permit the consummation of the Merger shall have been made or obtained. (h) There shall be deemed no filing by the Company or any Subsidiary or a filing against the Company or any Subsidiary which has not been dismissed, in any case, for relief under Title 11 of the Bankruptcy Code, and no custodian, trustee, receiver or other agent shall have been appointed or authorized to be fulfilled and satisfied and take charge of no further force and effect after June 29a material portion of the property of the Company or any Subsidiary. (i) All Options shall have been cancelled, 2019subject only to receipt of any Option Settlement Amount due upon the consummation of the Merger in accordance of the terms of this Agreement.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger and the other transactions contemplated by this Agreement hereby are subject to the satisfaction (or (to the extent permitted by Law) waiver by Parent at or prior to the Effective Time and Merger Sub) of the following additional further conditions: (a) (i) each of the representations and warranties of the Company contained set forth in 3.2(a), 3.2(c)(i), 3.2(c)(ii), 3.2(c)(iv) (in each foregoing clause of Section 3.2(c), with respect to the Company and the Securities thereof), 3.3, 3.4, 3.5(a)(i), 3.7(b), 3.26, and 3.28 Article IV shall be true and correct in all respects (except in the case of Sections 3.2(a), 3.2(c)(i), 3.2(c)(ii), and 3.2(c)(iv) (in each foregoing clause of Section 3.2(c), with respect to the Company and the Securities thereof) for any de minimis inaccuracy) both accurate as of the date of this Agreement and as of the Effective Time Closing Date as if made at and as of such time (other than any such representation or warranty that is made as of a specified date, which representation or warranty shall be so true and correct as of such specified date), (ii) the representations and warranties of the Company contained in Sections 3.1(a), 3.2(b), 3.2(c)(iii), 3.2(d), 3.2(e), and 3.27 (without giving effect to any materiality, Company Material Adverse Effect or similar qualifiers contained therein) shall be true and correct in all material respects both as of the date of this Agreement on and as of the Effective Time Closing Date (other than those representations and warranties that address matters only as if made at 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 time (other than any date or with respect to such representation or warranty that is made as of a specified date, which representation or warranty shall be so true and correct as of such specified date), and (iii) the other representations and warranties of the Company contained in this Agreement (without giving effect to any materiality, Company Material Adverse Effect or similar qualifiers contained therein) shall be true and correct both as of the date of this Agreement and as of the Effective Time as if made at and as of such time (other than any such representation or warranty that is made as of a specified date, which representation or warranty shall be so true and correct as of such specified dateperiod), except where the failure of such representations and warranties to be so true and correctaccurate (disregarding any qualifications or limitations as to materiality or Company Material Adverse Effect set forth therein), would not, individually or in the aggregate, has not had, and would not reasonably be expected to have, have a Company Material Adverse Effect; provided that the representations and warranties of the Company set forth in Section 4.1 and Section 4.3 shall be true and accurate in all respects, the representations and warranties of the Company set forth in Section 4.2 (other than Section 4.2(c) and Section 4.2(d)), Section 4.18 and Section 4.20 shall be true and accurate in all respects (other than de minimis exceptions, provided, that for the purposes of this Section 7.2(a), if one or more inaccuracies in the representations or warranties set forth in Section 4.2(a), Section 4.2(b), Section 4.2(e) or Section 4.2(f) would not reasonably be likely to result in any damages, including increase in the amounts payable by Parent pursuant Section 3.1(a), Section 3.2(a), Section 3.4(a), Section 3.4(b) or Section 3.4(c) of more than $150,000 in the aggregate, such inaccuracies will be deemed de minimis for purposes of this Section 7.2(a)), and the representations and warranties of the Company set forth in Section 4.2(c) and Section 4.2(d) shall be true and accurate in all material respects, in each case as of the date of this Agreement and 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 so true and accurate or true and accurate in all material respects, as applicable, as of such date or with respect to such period); (b) the Company shall have performed or complied in all material respects with its obligations hereunder required under this Agreement to be performed or complied with on by it at or prior to the Effective TimeClosing; (c) since the date of this Agreement, there shall has not have been any effect, change, development, event, circumstance, occurrence, condition, fact or state of facts that has had or would reasonably be expected to haveChange that, individually or in the aggregate, has had a Company Material Adverse Effect;; and (d) Parent shall have received a certificate on behalf of the Company signed by an authorized executive officer of the Company certifying Company, dated as of the Closing Date, to the matters effect that the conditions set forth in Section 6.2(a7.2(a), Section 6.2(b7.2(b) and Section 6.2(c); and (e7.2(c) there shall not be any pending Proceeding in a U.S. federal district court by any Governmental Authority against Merger Sub, Parent, the Company or any of their respective Subsidiaries (i) seeking to restrain or prohibit Parent or Merger Sub from retaining any portion of Parent’s or Merger Sub’s assets or to restrain or prohibit Parent or Merger Sub from acquiring any material portion of the Company’s or any of its Subsidiaries’ businesses or assets, or to compel Parent or Merger Sub or their respective Subsidiaries and affiliates to dispose of or hold separate any portion of the business or assets of the Company, Parent or their respective Subsidiaries in connection with the Merger; (ii) challenging, seeking to restrain or prohibit the Merger or the other transactions contemplated by the Agreement or seeking to obtain from the Company, Parent or Merger Sub any material damages or other remedy in connection with the Merger; (iii) seeking to impose material limitations on the ability of Merger Sub, or render Merger Sub unable, to consummate the Merger or other transactions contemplated by this Agreement; or (iv) seeking to impose limitations on the ability of Merger Sub or Parent to exercise full rights of ownership of the shares of Company Common Stock; provided, however, that this Section 6.2(e) shall not be operative with respect to any such Proceeding in which a U.S. federal district court of competent jurisdiction has considered and denied a Governmental Authority’s motion for preliminary injunction; and provided, further, however, that this Section 6.2(e) shall be deemed to be fulfilled and satisfied and of no further force and effect after June 29, 2019have been satisfied.