Common use of Deliveries of the Company Clause in Contracts

Deliveries of the Company. At the Closing, the Company shall deliver or cause to be delivered the following items to Acquisition Sub and Xybernaut: (a) a certificate dated the Closing Date and executed by the President of the Company certifying the satisfaction of the conditions referred to in Sections 6.1(a) and (b); (b) a certificate of the Secretary of the Company certifying the resolutions duly and validly adopted by the Company's Board of Directors evidencing the authorization of their execution and delivery of this Agreement and the other Company Transaction Documents and the consummation of the transactions contemplated hereby and thereby, and the names and signatures of the officers of the Company authorized to sign this Agreement and the other Company Transaction Documents; (c) the opinion of Xxxxxxxx X. Xxxx, Esq., counsel to the Company, with respect to the matters set forth in Section 6.1(o); (d) a tax, lien and judgment search of the Company in the Commonwealth of Virginia showing no items not disclosed in the Schedules to this Agreement; (e) the registration rights agreement in the form of Exhibit 7.1(e) (the "Registration Rights Agreement"), providing for, among other things, Xybernaut's undertaking to use its best efforts after the Closing to file with the SEC, within ninety (90) days after the Effective Time, a registration statement on Form S-3 for the registration by Xybernaut of twenty-five percent (25%) the Xybernaut Shares issued pursuant to the Merger, the expenses of which registration shall be borne by the parties in the manner set forth in the Registration Rights Agreement; (f) the certificates referred to in Section 6.1(l); (g) [INTENTIONALLY OMITTED] (h) a certificate duly executed by the President of the Company, attesting, with respect to the Company, the resolutions duly and validly adopted by the Company evidencing the authorization of its execution and delivery of this Agreement and the other Company Transaction Documents to which the Company is a party and the consummation of the transactions contemplated hereby and thereby, as to its articles of incorporation and bylaws, and as to the incumbency of each of its executive officers; (i) a certificate with respect to the Company from the jurisdiction of its incorporation attesting as to its valid existence as of a date recent to the Closing Date; (j) the Required Consents; (k) the employment agreement between Xybernaut and Xxxxxxx Xxxxxx substantially in the form annexed hereto as Exhibit 7.1 (k), together with such other provisions as shall be mutually acceptable to the parties thereto (the "Rebibo Employment Agreement), duly executed by Xx. Xxxxxx; (l) the employment agreement between Xybernaut and Xxxxxx Xxxxxxxxx in substantially the form annexed hereto as Exhibit 7.1 (k), together with such other provisions as shall be mutually acceptable to the parties thereto (the "Miskowich Employment Agreement"), duly executed by Xx. Xxxxxxxxx; (m) the employment agreement between Xybernaut and Xxxxxx Xxxxxx in substantially the form annexed hereto as Exhibit 7.1(k), together with such other provisions as shall be mutually acceptable to the parties thereto (the "Xxxxxx Employment Agreement"), duly executed by Xx. Xxxxxx; (n) the Escrow Agreement, duly executed by the Representative (as defined in Section 10.14) on behalf of the Principal Shareholders; (o) the Affiliate Agreements; (p) resignations, dated as of the Closing Date, executed by each officer and direct of the Company; (q) the investment undertakings required by Section 6.1(g); (r) the certificates and forms required by Section 6.1(l); (s) the documentation required by Section 6.1(k) with respect to the Company's financial condition; and (t) the documentation required by Section 6.1(p) with respect to approval of the Merger by the Company Shareholders.

Deliveries of the Company. At the Closing, the Company shall deliver or cause to be delivered each of the following following, the delivery of which shall be a condition to the obligations of Parent and Merger Sub to consummate the Closing; provided, however, that the delivery of the items listed in Section 10.3(a)(iii)(I) and Section 10.3(a)(iii)(J) below shall occur at or immediately after the Effective Time and the delivery of such items shall not be a condition to Acquisition the obligations of Parent and Merger Sub and Xybernautto consummate the Closing: (ai) the payments set forth in Section 5.2 by wire transfer of immediately available funds to the applicable accounts or Persons designated in Section 5.2; (ii) to the Escrow Agent and Parent: (A) a counterpart of the Escrow Agreement duly executed by the Securityholders Representative; and (B) a counterpart of the Securityholders Representative Escrow Agreement duly executed by the Securityholders Representative; (iii) to Parent: (A) a duly executed certificate of the Company, in form and substance reasonably satisfactory to Parent, dated as of the Closing Date and executed by certifying as to the President of the Company certifying the satisfaction of the conditions referred to matters set forth in Sections 6.1(a10.1(a)(i) and (b10.1(a)(ii); (b) a certificate of the Secretary of the Company certifying the resolutions duly and validly adopted by the Company's Board of Directors evidencing the authorization of their execution and delivery of this Agreement and the other Company Transaction Documents and the consummation of the transactions contemplated hereby and thereby, 10.1(a)(ix), 10.1(a)(xviii), and certifying, to the names and signatures Knowledge of the officers of the Company authorized to sign this Agreement and the other Company Transaction Documents; (c) the opinion of Xxxxxxxx X. Xxxx, Esq., counsel to the Company, with respect as to the matters set forth in Section 6.1(o10.1(a)(xix) (the “Company Closing Certificate”); (dB) a tax, lien and judgment search duly executed certificate of the Company in the Commonwealth of Virginia showing no items not disclosed in the Schedules to this Agreement; (e) the registration rights agreement in the form of Exhibit 7.1(e) (the "Registration Rights Agreement"), providing for, among other things, Xybernaut's undertaking to use its best efforts after the Closing to file with the SEC, within ninety (90) days after the Effective Time, a registration statement on Form S-3 for the registration by Xybernaut of twenty-five percent (25%) the Xybernaut Shares issued pursuant to the Merger, the expenses of which registration shall be borne by the parties in the manner set forth in the Registration Rights Agreement; (f) the certificates referred to in Section 6.1(l); (g) [INTENTIONALLY OMITTED] (h) a certificate duly executed by the President secretary of the Company, attestingdelivered on behalf of the Company and not in his individual capacity, with respect certifying as to the Company, certificate of incorporation and the bylaws of the Company and the resolutions duly of the Board (or the board of directors of the applicable Company Entities) authorizing and validly adopted by approving the Company evidencing the authorization of its execution execution, delivery and delivery performance of this Agreement and the Agreement, all other Company Transaction Documents to which the Company is a party and the consummation of Sempra Termination Agreement by the transactions contemplated hereby and thereby, as to its articles of incorporation and bylaws, and as to Company or the incumbency of each of its executive officersapplicable Company Entities party thereto; (iC) a certificate of existence and good standing of each Company Entity, issued by the jurisdiction of such Company Entity’s state of formation (or with respect to a foreign Company Entity, the Company from equivalent documents under the relevant jurisdiction of its incorporation attesting as to its valid existence as of a date recent if applicable) and dated not more than five (5) Business Days prior to the Closing Date; (jD) all consents, authorizations or approvals obtained by any Company Entity as of the Required ConsentsClosing in furtherance of the Merger, including all Company Mandatory Consents obtained by the Company as of the Closing; (kE) the employment agreement between Xybernaut and Xxxxxxx Xxxxxx substantially in the form annexed hereto as Exhibit 7.1 (k), together with such other provisions as shall be mutually acceptable to the parties thereto (the "Rebibo Employment Agreement), a duly executed by Xx. Xxxxxxcertificate of non-foreign status from the Company that meets the requirements of Treasury Regulations Section 1.1445-2(b)(2); (lF) a copy of the employment agreement between Xybernaut and Xxxxxx Xxxxxxxxx in substantially the form annexed hereto as Exhibit 7.1 (k), together with such other provisions as shall be mutually acceptable to the parties thereto (the "Miskowich Employment fully executed Sempra Termination Agreement"), duly executed by Xx. Xxxxxxxxx; (mG) the employment agreement between Xybernaut written resignation of any Person (in form and Xxxxxx Xxxxxx substance reasonably satisfactory to Parent) requested by Parent in substantially such Person’s capacity as a director, officer or manager of any Company Entity, effective as of the form annexed hereto as Exhibit 7.1(k), together with such other provisions as shall be mutually acceptable to the parties thereto (the "Xxxxxx Employment Agreement"), duly executed by Xx. XxxxxxEffective Time; (nH) the Escrow Agreement, Certificate of Merger duly executed by the Representative Company; (I) each of the following: (i) if the Closing occurs prior to August 1, 2011, an instrument executed by the trustee under the 2011 Notes Indenture, in form and substance reasonably satisfactory to Parent, referred to in the first sentence of Section 11.1 of the 2011 Notes Indenture acknowledging that such Indenture has been satisfied and discharged as contemplated by such Section 11.1, (ii) an instrument executed by the trustee under the 2014 Notes Indenture, in form and substance reasonably satisfactory to Parent, referred to in the first sentence of Section 11.1 of the 2014 Notes Indenture acknowledging that such Indenture and the Security Documents have been satisfied and discharged as contemplated by such Section 11.1; (iii) all UCC termination agreements or statements and other filings from the trustee under the 2014 Notes Indenture to terminate any Lien, security interest or control agreement securing the obligations under the 2014 Notes Indenture and (iv) all documents reasonably necessary to terminate and effect the release of funds subject to the Escrow and Security Agreement, dated as of September 22, 2009, among the Company, the trustee under the 2014 Notes Indenture and Law Debenture Trust Company of New York, as escrow agent; (J) duly executed copies of each of the following documents each of which shall be in form acceptable for delivery to Law Debenture Trust Company of New York, as trustee under the 2011 Notes Indenture and 2014 Notes Indenture (it being understood and agreed by Parent and the Company that drafts of each of the following shall have been prepared by the Company prior to the Effective Time and provided to Parent for review reasonably in advance of the Effective Time) (provided that if the 2011 Notes have been paid in full prior to the Closing or will be paid in full on the Closing Date, the documents set forth in clause (1)-(3) shall not be required to be delivered and, instead, the Company shall deliver to Parent evidence (reasonably satisfactory to Parent) of such payment in full): (1) irrevocable instructions from the Company executed by an Existing Company Officer on behalf of the Company directing Law Debenture Trust Company of New York, as trustee under the 2011 Notes Indenture, to apply that portion of the Bond Deposit pertaining to the 2011 Notes to the payment of the 2011 Notes at maturity of the 2011 Notes on August 1, 2011; (2) the Officers’ Certificate (as defined in the 2011 Notes Indenture) referred to in Section 10.14) 11.1 of the 2011 Notes Indenture executed by an Existing Company Officer on behalf of the Principal Shareholders; (o) the Affiliate Agreements; (p) resignations, dated as of the Closing Date, executed by each officer and direct of the Company; (q3) the investment undertakings required by Opinion of Counsel (as defined in the 2011 Notes Indenture) referred to in Section 6.1(g)11.1 of the 2011 Notes Indenture of Paul, Hastings, Xxxxxxxx & Xxxxxx LLP, as counsel to the Company; (r4) the certificates and forms required a notice of redemption contemplated by Section 6.1(l)3.7 of the 2014 Notes Indenture executed by an Existing Company Officer on behalf of the Company and delivered by the Company calling for redemption of the 2014 Notes on the later of (x) thirty (30) days after the Closing Date (or the next succeeding Business Day if the date that is thirty (30) days after the Closing Date is not a Business Day) and (y) August 1, 2011, together with irrevocable instructions executed by an Existing Company Officer on behalf of the Company directing Law Debenture Trust Company of New York, as trustee under the 2014 Notes Indenture, to have such have redemption notice mailed no more than sixty (60) days nor less than thirty (30) days prior to the contemplated redemption date; (s5) irrevocable instructions from the Company executed by an Existing Company Officer on behalf of the Company directing Law Debenture Trust Company of New York, as trustee under the 2014 Notes Indenture, to apply that portion of the Bond Deposit pertaining to the 2014 Notes to the payment of the 2014 Notes upon redemption of the 2014 Notes; (6) the documentation required Officer’s Certificate (as defined in the 2014 Notes Indenture) referred to in Section 11.1 of the 2014 Notes Indenture executed by Section 6.1(k) with respect to an Existing Company Officer on behalf of the Company's financial condition; and (t7) the documentation required by Opinion of Counsel (as defined in the 2014 Notes Indenture) referred to in Section 6.1(p11.1 of the 2014 Notes Indenture from Paul, Hastings, Xxxxxxxx & Xxxxxx LLP, as counsel to the Company; and (K) to Parent and the Paying Agent, a complete and correct list of the owners of Common Stock and Company Restricted Share Units as of immediately prior to the Effective Time identifying as to each Securityholder: (1) name and address, (2) number of shares of Common Stock and Company Restricted Share Units held as of immediately prior to the Effective Time, (3) the stock certificate numbers with respect to approval shares of Common Stock, (4) the Percentage Share and (5) the portion of the Merger by Closing Date Payment to be paid to each such Securityholder at the Company ShareholdersClosing.

Deliveries of the Company. At the Closing, the The Company shall deliver or cause to be delivered Buyer at the following items to Acquisition Sub and XybernautClosing: (ai) a certificate dated A xxxx of sale substantially in the Closing Date form attached hereto as Exhibit A, duly executed and acknowledged by the Company, conveying to Buyer all of the Company’s right, title, and interest in the personal property included in the Purchased Assets; (ii) An assignment and assumption agreement (the “Assignment and Assumption Agreement”) substantially in the form attached hereto as Exhibit B, duly executed by the President Company, under which the Company assigns and Buyer assumes the Assumed Liabilities; (iii) An agreement for the supply of cranberry juice concentrate (the “Cranberry Concentrate Supply Agreement”) substantially in the form attached hereto as Exhibit C, duly executed by the Company, under which the Company agrees to supply, and Buyer agrees to purchase, cranberry juice concentrate during the term thereof; (iv) An agreement for the provision of transition services (the “Transition Services Agreement”) substantially in the form attached hereto as Exhibit D, duly executed by the Company, under which the Company agrees to supply, and Buyer agrees to pay for, certain transition services during the term thereof; (v) An assignment and assumption agreement, duly executed by the Company, NCI Foods, LLC, a Wisconsin limited liability company (“NCI”) and Seneca Foods Corporation, a New York corporation (“Seneca”), under which: (i) NCI assigns to Buyer and Buyer assumes all of NCI’s rights under the Seneca License Agreement and (ii) Seneca consents to the assignment of the Company certifying the satisfaction Seneca License Agreement to Buyer; (vi) All of the conditions referred to in Sections 6.1(aconsents set forth on Schedule 2.5(a)(vi) and hereto (bthe “Material Consents”); (bvii) a certificate A copy of the Secretary resolution of the board of directors of the Company certifying authorizing the resolutions duly execution, delivery and validly adopted by the Company's Board of Directors evidencing the authorization of their execution and delivery performance of this Agreement and the other Company Transaction Documents documents and agreements contemplated hereby, and the consummation of the transactions contemplated hereby and thereby, and the names and signatures of the officers of the Company authorized to sign this Agreement and the other Company Transaction Documents; (c) the opinion of Xxxxxxxx X. Xxxx, Esq., counsel to the Company, with respect to the matters set forth in Section 6.1(o); (d) a tax, lien and judgment search of the Company in the Commonwealth of Virginia showing no items not disclosed in the Schedules to this Agreement; (e) the registration rights agreement in the form of Exhibit 7.1(e) (the "Registration Rights Agreement"), providing for, among other things, Xybernaut's undertaking to use its best efforts after the Closing to file with the SEC, within ninety (90) days after the Effective Time, a registration statement on Form S-3 for the registration by Xybernaut of twenty-five percent (25%) the Xybernaut Shares issued pursuant to the Merger, the expenses of which registration shall be borne certified by the parties in the manner set forth in the Registration Rights Agreement; (f) the certificates referred to in Section 6.1(l); (g) [INTENTIONALLY OMITTED] (h) a certificate duly executed by the President secretary or an assistant secretary of the Company, attesting, with respect to the Company, the resolutions duly and validly adopted by the Company evidencing the authorization of its execution and delivery of this Agreement and the other Company Transaction Documents to which the Company is a party and the consummation of the transactions contemplated hereby and thereby, as to its articles of incorporation and bylaws, and as to the incumbency of each of its executive officers; (i) a certificate with respect to the Company from the jurisdiction of its incorporation attesting as to its valid existence as of a date recent to the Closing Date; (j) the Required Consents; (k) the employment agreement between Xybernaut and Xxxxxxx Xxxxxx substantially in the form annexed hereto as Exhibit 7.1 (k), together with such other provisions as shall be mutually acceptable to the parties thereto (the "Rebibo Employment Agreement), duly executed by Xx. Xxxxxx; (l) the employment agreement between Xybernaut and Xxxxxx Xxxxxxxxx in substantially the form annexed hereto as Exhibit 7.1 (k), together with such other provisions as shall be mutually acceptable to the parties thereto (the "Miskowich Employment Agreement"), duly executed by Xx. Xxxxxxxxx; (m) the employment agreement between Xybernaut and Xxxxxx Xxxxxx in substantially the form annexed hereto as Exhibit 7.1(k), together with such other provisions as shall be mutually acceptable to the parties thereto (the "Xxxxxx Employment Agreement"), duly executed by Xx. Xxxxxx; (n) the Escrow Agreement, duly executed by the Representative (as defined in Section 10.14) on behalf of the Principal Shareholders; (o) the Affiliate Agreements; (p) resignations, dated as of the Closing Date, executed by each officer and direct of the Company; (q) the investment undertakings required by Section 6.1(g); (r) the certificates and forms required by Section 6.1(l); (s) the documentation required by Section 6.1(k) with respect to the Company's financial condition; and (tviii) The opinion of Company counsel, in the documentation required by Section 6.1(p) with respect to approval of the Merger by the Company Shareholders.form attached hereto as Exhibit “E.”

Deliveries of the Company. At Concurrently with the Closingexecution of this Agreement, the Company shall deliver or cause is delivering to be delivered the following items to Acquisition Sub and XybernautInvestor: (a) a certificate dated the Closing Date and executed by the President of the Company certifying the satisfaction of the conditions referred to in Sections 6.1(a) and (b)Debenture; (b) a certificate of the Secretary of the Company certifying the resolutions duly and validly adopted by the Company's Board of Directors evidencing the authorization of their execution and delivery of this Agreement and the other Company Transaction Documents and the consummation of the transactions contemplated hereby and thereby, and the names and signatures of the officers of the Company authorized to sign this Agreement and the other Company Transaction DocumentsWarrants; (c) the opinion of Xxxxxxxx X. Xxxxa certificate, Esq., counsel to the Company, with respect to the matters set forth in Section 6.1(o); (d) a tax, lien and judgment search of the Company in the Commonwealth of Virginia showing no items not disclosed in the Schedules to this Agreement; (e) the registration rights agreement in the form of Exhibit 7.1(e) (the "Registration Rights Agreement"), providing for, among other things, Xybernaut's undertaking to use its best efforts after the Closing to file with the SEC, within ninety (90) days after the Effective Time, a registration statement on Form S-3 for the registration by Xybernaut of twenty-five percent (25%) the Xybernaut Shares issued pursuant to the Merger, the expenses of which registration shall be borne by the parties in the manner set forth in the Registration Rights Agreement; (f) the certificates referred to in Section 6.1(l); (g) [INTENTIONALLY OMITTED] (h) a certificate duly executed by the President of the Company, attestingdated the date hereof, certifying that there does not exist as of the date hereof a state of facts that would constitute an "Event of Default" under this Agreement or the Debenture (collectively, all such defaults being hereinafter referred to as "Defaults"), or which would, with respect notice or lapse of time, or both, constitute such a Default, and the Company is not in default under the terms, conditions or provisions of its Articles of Incorporation, as amended, its By-laws, or any indenture, mortgage or deed of trust or other material contract, agreement, lease, instrument, court order, judgment, arbitration award, or decree to which it is a party or by which it is bound or which state of facts would, with notice or lapse of time, or both, constitute such a default (collectively, "Other Defaults"); (d) copies of (i) resolutions adopted by the Board of Directors of the Company authorizing and approving this Agreement, the issuance of the Debenture, the Warrants, the shares of Class B Preferred Stock into which the Debenture may be converted. assuming the closing of the Class B Preferred Stock Financing (the "Conversion Preferred Shares"), upon the filing of the Articles Amendment (as defined below), the shares of Common Stock into which the Debenture may be converted as set forth in the Debenture (the "Conversion Common Shares"), upon the filing of the Articles Amendment, the shares of Common Stock to be issued as interest on the Debenture (the "Interest Common Shares") and, upon the filing of the Articles Amendment, the shares of Common Stock to be issued upon exercise of the Warrants (the "Warrant Common Shares"), and the consummation of all other transactions contemplated hereby, as and to the extent required by applicable law, (ii) action by partial written consent of the shareholders of the Company representing more than 50% of the outstanding voting securities of the Company (the "Majority Shareholders") approving, among other matters, an amendment (the "Articles Amendment") to the Company's Amended and Restated Articles of Incorporation, as amended (as further amended by the Articles Amendment, the "Articles of Incorporation"), to increase the authorized capital stock of the Company, and (iii) action by partial written consent of the Majority Shareholders approving a prior action of the Board of Directors in connection with the increase in the size of the Board of Directors (the "Board Increase"), all such resolutions and written consents being certified by the Secretary of the Company; (e) copies of the Company's Articles of Incorporation and By- laws as then in effect, all certified by the Secretary of the Company; (f) a Subsistence Certificate for the Company issued by the Secretary of the Commonwealth of the Commonwealth of Pennsylvania, dated within 10 days prior to the date hereof; (g) an opinion letter, from Cozen and X'Xxxxxx, counsel to the Company, addressed to the resolutions duly Investor, dated the date hereof, in form and validly adopted substance satisfactory to the Investor; (h) a certificate of incumbency signed by the Company evidencing the authorization of its execution and delivery of this Agreement and the other Company Transaction Documents to which the Company is a party and the consummation Secretary of the transactions contemplated hereby Company, certifying the names, titles and thereby, as to its articles signatures of incorporation the Company's officers and bylaws, and as to the incumbency of each of its executive officersdirectors; (i) a certificate with respect to Shareholders' Letter Agreement between the Company from Company, the jurisdiction Investor and certain shareholders of its incorporation attesting as to its valid existence as of a date recent to the Closing Date; (j) the Required Consents; (k) the employment agreement between Xybernaut and Xxxxxxx Xxxxxx substantially in the form annexed hereto as Exhibit 7.1 (k)Company, together with such other provisions as shall be mutually acceptable to the parties thereto (the "Rebibo Employment Agreement), duly executed by Xx. Xxxxxx; (l) the employment agreement between Xybernaut and Xxxxxx Xxxxxxxxx in substantially the form annexed hereto as Exhibit 7.1 (k), together with such other provisions as shall be mutually acceptable to the parties thereto (the "Miskowich Employment Agreement"), duly executed by Xx. Xxxxxxxxx; (m) the employment agreement between Xybernaut and Xxxxxx Xxxxxx in substantially the form annexed hereto as Exhibit 7.1(k), together with such other provisions as shall be mutually acceptable to the parties thereto (the "Xxxxxx Employment Agreement"), duly executed by Xx. Xxxxxx; (n) the Escrow Agreement, duly executed signed by the Representative (as defined in Section 10.14) on behalf holders of at least 75% of the Principal Shareholders; (o) the Affiliate Agreements; (p) resignations, dated as of the Closing Date, executed by each officer and direct outstanding Common Stock of the Company; (qj) the investment undertakings required by Section 6.1(g); (r) the certificates and forms required by Section 6.1(l); (s) the documentation required by Section 6.1(k) with respect to an unqualified opinion of KPMG Peat Marwick LLP on the Company's financial conditionstatements for the fiscal year ended December 31, 1996; and (tk) a receipt for the documentation required by Section 6.1(p) with respect to approval full amount of the Merger by Purchase Price, before deduction of the Company Shareholdersfees and expenses payable under Section 13.6.

Deliveries of the Company. At the Closing, the The Company shall deliver deliver, or cause to be delivered delivered, to the following items to Acquisition Sub and XybernautPurchaser: (ai) a certificate At each Closing, an opinion from Stikeman Elliott LLP, XxXxxxxxx Will & Xxxxx LLP and Xxxxxx Bond Xxxxxxxxx LLP, as counsel for the Company, in respect of the matters set out in Exhibit A-1 and Exhibit A-2, which shall be addressed to the Purchaser and dated as of the applicable Closing Date with customary assumptions and executed by the President of the Company certifying the satisfaction of the conditions referred to in Sections 6.1(a) and (b)qualifications; (bii) At each Closing, (A) a certificate of the Secretary of State, or equivalent, of each applicable state or province, dated within 10 Business Days prior to the Company certifying applicable Closing Date, to the resolutions effect that the Company, Akumin Corp and each of the Significant Subsidiaries (as defined in the Indenture) is in good standing in its jurisdiction of formation or (B) one or more opinions of qualified counsel, as counsel for the Company, that the Company, Akumin Corp and each of the Significant Subsidiaries is in good standing in its jurisdiction of formation; (iii) At the Initial Closing, an executed Series A Note in an initial principal amount equal to the Base Series A Note Amount plus the Backstop Draw Amount (if any), which shall have been duly and validly adopted executed by Akumin Corp; (iv) At each Subsequent Closing, an executed Series A Note in an initial principal amount equal to the amount of the Growth Capital Commitment funded at such Subsequent Closing, which shall have been duly executed by Akumin Corp; (v) At the Initial Closing, a counterpart of the Registration Rights Agreement, which shall have been duly executed by the Company's Board ; (vi) At the Initial Closing, (A) evidence that a “Listing of Directors Additional Shares” notification has been filed with NASDAQ with respect to the Warrant Shares relating to the Warrants to be issued at the Initial Closing and the Purchased Shares and that no objection thereto has been received from NASDAQ and (B) a letter of the TSX evidencing the authorization conditional approval of their the TSX of the listing of the Warrant Shares into which the Warrants to be issued at the Initial Closing will be convertible and the Purchased Shares), in substantially the form attached hereto as Exhibit G (the “TSX Conditional Approval”); (vii) At any Subsequent Closing, (A) evidence that a “Listing of Additional Shares” notification has been filed with NASDAQ with respect to the Warrant Shares relating to the Warrants to be issued at such Subsequent Closing and that no objection thereto has been received from NASDAQ, (B) a letter of the TSX evidencing the conditional approval of the TSX of the listing of the Warrant Shares into which the Warrants to be issued at such Subsequent Closing will be convertible, subject to standard listing conditions being completed on or before the date specified for such listing that are reasonably acceptable to Purchaser, and (C) evidence reasonably acceptable to the Purchaser that all TSX approvals or shareholder approvals required for the issuance and exercise of the Warrants to be issued at such Subsequent Closing have been received or are not required; (viii) At the Initial Closing, a counterpart of the Series A Warrant Certificate, which shall have been duly executed by the Company; (ix) At each Subsequent Closing, a counterpart of the Series B Warrant Certificate, which shall have been duly executed by the Company; (x) At the Initial Closing, reasonable evidence of the issuance of the Purchased Shares, free and clear of any Liens, other than transfer restrictions under applicable securities Laws and those created by the Purchaser; (xi) At the Initial Closing, a counterpart of the Board Director/Observer Agreement, which shall have been duly executed by the Company; (xii) At each Closing, a certificate of the Secretary or Assistant Secretary of the Company, dated as of the applicable Closing Date, certifying as to and attaching (A) the Organizational Documents of the Company and Akumin Corp, (B) board resolutions authorizing the execution and delivery of this Agreement and the other Company Transaction Documents and the consummation of the transactions contemplated hereby and thereby, including the issuance of a Series A Note, the Purchased Shares and the names Warrants, by the Company and signatures Akumin Corp, as applicable, and (C) the incumbency of the officers of the Company authorized to sign this Agreement and execute the other Company Transaction Documents; (c) the opinion of Xxxxxxxx X. Xxxx, Esq., counsel to the Company, with respect to the matters set forth in Section 6.1(o); (d) a tax, lien and judgment search of the Company in the Commonwealth of Virginia showing no items not disclosed in the Schedules to this Agreement; (e) the registration rights agreement in the form of Exhibit 7.1(e) (the "Registration Rights Agreement"), providing for, among other things, Xybernaut's undertaking to use its best efforts after the Closing to file with the SEC, within ninety (90) days after the Effective Time, a registration statement on Form S-3 for the registration by Xybernaut of twenty-five percent (25%) the Xybernaut Shares issued pursuant to the Merger, the expenses of which registration shall be borne by the parties in the manner set forth in the Registration Rights Agreement; (f) the certificates referred to in Section 6.1(l); (g) [INTENTIONALLY OMITTED] (h) a certificate duly executed by the President of the Company, attesting, with respect to the Company, the resolutions duly and validly adopted by the Company evidencing the authorization of its execution and delivery of this Agreement and the other Company Transaction Documents to which the Company is a party and the consummation of the transactions contemplated hereby and thereby, as to its articles of incorporation and bylaws, and as to the incumbency of each of its executive officers; (i) a certificate with respect to the Company from the jurisdiction of its incorporation attesting as to its valid existence as of a date recent to the Closing Date; (j) the Required Consents; (k) the employment agreement between Xybernaut and Xxxxxxx Xxxxxx substantially in the form annexed hereto as Exhibit 7.1 (k), together with such other provisions as shall be mutually acceptable to the parties thereto (the "Rebibo Employment Agreement), duly executed by Xx. Xxxxxx; (l) the employment agreement between Xybernaut and Xxxxxx Xxxxxxxxx in substantially the form annexed hereto as Exhibit 7.1 (k), together with such other provisions as shall be mutually acceptable to the parties thereto (the "Miskowich Employment Agreement"), duly executed by Xx. Xxxxxxxxx; (m) the employment agreement between Xybernaut and Xxxxxx Xxxxxx in substantially the form annexed hereto as Exhibit 7.1(k), together with such other provisions as shall be mutually acceptable to the parties thereto (the "Xxxxxx Employment Agreement"), duly executed by Xx. Xxxxxx; (n) the Escrow Agreement, duly executed by the Representative (as defined in Section 10.14) on behalf of the Principal Shareholders;Company and Akumin Corp, setting forth the name and title and bearing the signatures of such officers; and (oxiii) At each Closing, a certificate of an authorized officer of the Affiliate Agreements; (p) resignationsCompany and Akumin Corp, dated as of the applicable Closing Date, executed by each officer and direct of certifying, in his or her applicable capacity, to the Company; effect that the conditions set forth in Section 2.04(c) (q) the investment undertakings required by Section 6.1(g); (r) the certificates and forms required by Section 6.1(l); (s) the documentation required by Section 6.1(k) with respect to the Company's financial condition; and Initial Closing only), Section 2.05(a) (t) the documentation required by Section 6.1(p) with respect to approval of the Merger by the Company ShareholdersInitial Closing only), Section 2.05(b) (with respect to any Subsequent Closing only) and Section 2.05(c) have been satisfied.

Deliveries of the Company. At Concurrently with the Closingexecution of this Agreement, the Company shall deliver or cause is delivering to be delivered the following items to Acquisition Sub and XybernautInvestor: (a) a certificate dated the Closing Date and executed by the President of the Company certifying the satisfaction of the conditions referred to in Sections 6.1(a) and (b)Debenture; (b) a certificate of the Secretary of the Company certifying the resolutions duly and validly adopted by the Company's Board of Directors evidencing the authorization of their execution and delivery of this Agreement and the other Company Transaction Documents and the consummation of the transactions contemplated hereby and thereby, and the names and signatures of the officers of the Company authorized to sign this Agreement and the other Company Transaction DocumentsWarrants; (c) the opinion of Xxxxxxxx X. Xxxxa certificate, Esq., counsel to the Company, with respect to the matters set forth in Section 6.1(o); (d) a tax, lien and judgment search of the Company in the Commonwealth of Virginia showing no items not disclosed in the Schedules to this Agreement; (e) the registration rights agreement in the form of Exhibit 7.1(e) (the "Registration Rights Agreement"), providing for, among other things, Xybernaut's undertaking to use its best efforts after the Closing to file with the SEC, within ninety (90) days after the Effective Time, a registration statement on Form S-3 for the registration by Xybernaut of twenty-five percent (25%) the Xybernaut Shares issued pursuant to the Merger, the expenses of which registration shall be borne by the parties in the manner set forth in the Registration Rights Agreement; (f) the certificates referred to in Section 6.1(l); (g) [INTENTIONALLY OMITTED] (h) a certificate duly executed by the President of the Company, attestingdated the date hereof, certifying that there does not exist as of the date hereof a state of facts that would constitute an "Event of Default" under this Agreement or the Debenture (collectively, all such defaults being hereinafter referred to as "Defaults"), or which would, with respect notice or lapse of time, or both, constitute such a Default, and the Company is not in default under the terms, conditions or provisions of its Articles of Incorporation, as amended, its By-laws, or any indenture, mortgage or deed of trust or other material contract, agreement, lease, instrument, court order, judgment, arbitration award, or decree to the Companywhich it is a party or by which it is bound or which state of facts would, the with notice or lapse of time, or both, constitute such a default (collectively, "Other Defaults"); (d) copies of (i) resolutions duly and validly adopted by the Board of Directors of the Company evidencing authorizing and approving this Agreement, the authorization issuance of its execution and delivery the Debenture, the Warrants, the shares of this Agreement and the other Company Transaction Documents to Class B Preferred Stock into which the Company is a party Debenture may be converted, assuming the closing of the Class B Preferred Stock Financing (the "Conversion Preferred Shares"), upon the filing of the Articles Amendment (as defined below), the shares of Common Stock into which the Debenture may be converted as set forth in the Debenture (the "Conversion Common Shares"), upon the filing of the Articles Amendment, the shares of Common Stock to be issued as interest on the Debenture (the "Interest Common Shares") and, upon the filing of the Articles Amendment, the shares of Common Stock to be issued upon exercise of the Warrants (the "Warrant Common Shares"), and the consummation of the all other transactions contemplated hereby and therebyhereby, as and to its articles of incorporation and bylawsthe extent required by applicable law, and as to (ii) action by partial written consent of the incumbency shareholders of each of its executive officers; (i) a certificate with respect to the Company from representing more than 50% of the jurisdiction outstanding voting securities of its incorporation attesting as to its valid existence as of a date recent to the Closing Date; (j) the Required Consents; (k) the employment agreement between Xybernaut and Xxxxxxx Xxxxxx substantially in the form annexed hereto as Exhibit 7.1 (k), together with such other provisions as shall be mutually acceptable to the parties thereto Company (the "Rebibo Employment Agreement)Majority Shareholders") approving, duly executed by Xx. Xxxxxx; (l) the employment agreement between Xybernaut and Xxxxxx Xxxxxxxxx in substantially the form annexed hereto as Exhibit 7.1 (k)among other matters, together with such other provisions as shall be mutually acceptable to the parties thereto an amendment (the "Miskowich Employment AgreementArticles Amendment") to the Company's Amended and Restated Articles of Incorporation, as amended (as further amended by the Articles Amendment, the "Articles of Incorporation"), duly executed by Xx. Xxxxxxxxx; (m) to increase the employment agreement between Xybernaut authorized capital stock of the Company, all such resolutions and Xxxxxx Xxxxxx in substantially the form annexed hereto as Exhibit 7.1(k), together with such other provisions as shall be mutually acceptable to the parties thereto (the "Xxxxxx Employment Agreement"), duly executed by Xx. Xxxxxx; (n) the Escrow Agreement, duly executed written consents being certified by the Representative (as defined in Section 10.14) on behalf of the Principal Shareholders; (o) the Affiliate Agreements; (p) resignations, dated as of the Closing Date, executed by each officer and direct Secretary of the Company; (qe) copies of the investment undertakings required Company's Articles of Incorporation and By-laws as then in effect, all certified by Section 6.1(g)the Secretary of the Company; (rf) a Subsistence Certificate for the certificates and forms required Company issued by Section 6.1(l)the Secretary of the Commonwealth of the Commonwealth of Pennsylvania, dated January 23, 1998; (sg) an opinion letter, from Cozen and X'Xxxxxx, counsel to the documentation required Company, addressed to the Investor, dated the date hereof, in form and substance satisfactory to the Investor; (h) a certificate of incumbency signed by Section 6.1(kthe Secretary of the Company, certifying the names, titles and signatures of the Company's officers and directors; (i) with respect to an unqualified opinion of KPMG Peat Marwick LLP on the Company's financial conditionstatements for the fiscal year ended December 31, 1996; and (tj) a receipt for the documentation required by Section 6.1(p) with respect to approval full amount of the Merger by Purchase Price, before deduction of the Company Shareholdersfees and expenses payable under Section 13.6.

Deliveries of the Company. (a) Concurrently herewith, the Company is delivering to the Parent: (i) this Agreement executed by Company; and (ii) a certificate from the Company, signed by its authorized officer certifying that the attached copies of the Company Constituent Instruments and resolutions of the Board of Directors of the Company approving the Agreement and the Transactions are all true, complete and correct and remain in full force and effect. (b) At or prior to the Closing, the Company shall deliver or cause to be delivered the following items to Acquisition Sub and Xybernautdeliver: (ai) To the Parent, a certificate dated form of Current Report on Form 8-K, which is substantially in the Closing Date form to be filed, which includes the financial statements and executed pro forma financial statements required by the President Form 8-K for a reverse merger - shell transaction, together with a signed audit report of the Company certifying independent accountants for the satisfaction of the conditions referred to in Sections 6.1(a) and (b)Company; (bii) a certificate To the Parent, the executed agreement or agreements of the Secretary holders of its preferred shares, which agreement shall be conditional upon the Closing and their becoming a party to the registration rights agreement between the Parent and the investors in the Financing on a basis pari passu with such investors, agreeing to the (A) conversion of their preferred shares to ordinary shares of the Company certifying Company, and (B) termination of the resolutions duly shareholders agreement among such holders of preferred shares, the other Shareholders and validly adopted by the Company's Board of Directors evidencing the authorization of their execution and delivery of this Agreement and the other Company Transaction Documents and the consummation of the transactions contemplated hereby and thereby, and the names and signatures of the officers of the Company authorized to sign this Agreement and the other Company Transaction Documents; (ciii) To the opinion Parent, the agreement of Xxxxxxxx X. Xxxx, Esq., counsel to the Company’s principal Shareholder and chief executive officer, Xx. Xxxxx Luo, with respect to non-competition with the matters set forth in Section 6.1(o); (d) a taxParent during her employment with the Parent, lien and judgment search the Company’s operating subsidiary or any other subsidiary of the Company in the Commonwealth of Virginia showing no items not disclosed in the Schedules to this Agreement; (e) the registration rights agreement Parent, and for a five-year period thereafter, and certain other matters, substantially in the form of Exhibit 7.1(eD hereto; and (iv) To the Parent, a copy of a fully-executed after-market support agreement with After Market Support, LLC (the "Registration Rights Agreement"“AMS”), providing for, among other things, Xybernaut's undertaking to use its best efforts after the Closing to file with the SEC, within ninety (90) days after the Effective Time, a registration statement on Form S-3 for the registration and confirmation that $500,000 has been deposited by Xybernaut of twenty-five percent (25%) the Xybernaut Shares issued pursuant to the Merger, the expenses of which registration shall be borne by the parties in the manner set forth in the Registration Rights Agreement; (f) the certificates referred to in Section 6.1(l); (g) [INTENTIONALLY OMITTED] (h) a certificate duly executed by the President of the Company, attesting, with respect to the Company, the resolutions duly and validly adopted by the Company evidencing the authorization of its execution and delivery of this Agreement and the other Company Transaction Documents to which the Company is a party and the consummation of the transactions contemplated hereby and thereby, as to its articles of incorporation and bylaws, and as to the incumbency of each of its executive officers; (i) a certificate with respect to the Company from the jurisdiction of its incorporation attesting as to its valid existence as of a date recent to the Closing Date; (j) the Required Consents; (k) the employment agreement between Xybernaut and Xxxxxxx Xxxxxx substantially in the form annexed hereto as Exhibit 7.1 (k), together with such other provisions as shall be mutually acceptable to the parties thereto (the "Rebibo Employment Agreement), duly executed by Xx. Xxxxxx; (l) the employment agreement between Xybernaut and Xxxxxx Xxxxxxxxx in substantially the form annexed hereto as Exhibit 7.1 (k), together with such other provisions as shall be mutually acceptable to the parties thereto (the "Miskowich Employment Agreement"), duly executed by Xx. Xxxxxxxxx; (m) the employment agreement between Xybernaut and Xxxxxx Xxxxxx in substantially the form annexed hereto as Exhibit 7.1(k), together with such other provisions as shall be mutually acceptable to the parties thereto (the "Xxxxxx Employment Agreement"), duly executed by Xx. Xxxxxx; (n) the Escrow Agreement, duly executed by the Representative (as defined in Section 10.14) or on behalf of the Principal Shareholders; (o) the Affiliate Agreements; (p) resignations, dated as of the Closing Date, executed by each officer Company in a segregated U.S. account and direct of the Company; (q) the investment undertakings required by Section 6.1(g); (r) the certificates and forms required by Section 6.1(l); (s) the documentation required by Section 6.1(k) with respect dedicated to the Company's financial condition; and (t) the documentation required by Section 6.1(p) funding of future payments for services under that agreement with respect to approval of the Merger by the Company ShareholdersAMS.

Deliveries of the Company. At Concurrently with the Closingexecution of this Agreement, the Company shall deliver or cause is delivering to be delivered the following items to Acquisition Sub and Xybernauteach Investor: (a) a certificate dated the Closing Date and executed by the President of the Company certifying the satisfaction of the conditions referred to in Sections 6.1(a) and (b)Debenture; (b) a certificate of the Secretary of the Company certifying the resolutions duly and validly adopted by the Company's Board of Directors evidencing the authorization of their execution and delivery of this Agreement and the other Company Transaction Documents and the consummation of the transactions contemplated hereby and thereby, and the names and signatures of the officers of the Company authorized to sign this Agreement and the other Company Transaction Documents; Warrant; (c) the opinion of Xxxxxxxx X. Xxxxa certificate, Esq., counsel to the Company, with respect to the matters set forth in Section 6.1(o); (d) a tax, lien and judgment search of the Company in the Commonwealth of Virginia showing no items not disclosed in the Schedules to this Agreement; (e) the registration rights agreement in the form of Exhibit 7.1(e) (the "Registration Rights Agreement"), providing for, among other things, Xybernaut's undertaking to use its best efforts after the Closing to file with the SEC, within ninety (90) days after the Effective Time, a registration statement on Form S-3 for the registration by Xybernaut of twenty-five percent (25%) the Xybernaut Shares issued pursuant to the Merger, the expenses of which registration shall be borne by the parties in the manner set forth in the Registration Rights Agreement; (f) the certificates referred to in Section 6.1(l); (g) [INTENTIONALLY OMITTED] (h) a certificate duly executed by the President of the Company, attestingdated the date hereof, certifying that there does not exist as of the date hereof a state of facts that would constitute an "Event of Default" under this Agreement or the Debentures (collectively, all such defaults being hereinafter referred to as "Defaults"), or which would, with respect notice or lapse of time, or both, constitute such a Default, and the Company is not in default under the terms, conditions or provisions of its Articles of Incorporation, as amended, its By-laws, or any indenture, mortgage or deed of trust or other material contract, agreement, lease, instrument, court order, judgment, arbitration award, or decree to the Companywhich it is a party or by which it is bound or which state of facts would, the with notice or lapse of time, or both, constitute such a default (collectively, "Other Defaults"); (d) copies of (i) resolutions duly and validly adopted by the Board of Directors of the Company evidencing authorizing and approving this Agreement, the authorization issuance of its execution and delivery the Debentures, the Warrants, the shares of this Agreement and the other Company Transaction Documents to Class B Preferred Stock into which the Company is a party Debentures may be converted, assuming the closing of the Class B Preferred Stock Financing (the "Conversion Preferred Shares"), upon the filing of the Articles Amendment (as defined below), the shares of Common Stock into which the Debentures may be converted as set forth in the Debentures (the "Conversion Common Shares"), upon the filing of the Articles Amendment, the shares of Common Stock to be issued as interest on the Debentures (the "Interest Common Shares") and, upon the filing of the Articles Amendment, the shares of Common Stock to be issued upon exercise of the Warrants (the "Warrant Common Shares"), and the consummation of the all other transactions contemplated hereby and therebyhereby, as and to its articles of incorporation and bylawsthe extent required by applicable law, and as to (ii) action by partial written consent of the incumbency shareholders of each of its executive officers; (i) a certificate with respect to the Company from representing more than 50% of the jurisdiction outstanding voting securities of its incorporation attesting as to its valid existence as of a date recent to the Closing Date; (j) the Required Consents; (k) the employment agreement between Xybernaut and Xxxxxxx Xxxxxx substantially in the form annexed hereto as Exhibit 7.1 (k), together with such other provisions as shall be mutually acceptable to the parties thereto Company (the "Rebibo Employment Agreement)Majority Shareholders") approving, duly executed by Xx. Xxxxxx; (l) the employment agreement between Xybernaut and Xxxxxx Xxxxxxxxx in substantially the form annexed hereto as Exhibit 7.1 (k)among other matters, together with such other provisions as shall be mutually acceptable to the parties thereto an amendment (the "Miskowich Employment AgreementArticles Amendment") to the Company's Amended and Restated Articles of Incorporation, as amended (as further amended by the Articles Amendment, the "Articles of Incorporation"), duly executed by Xx. Xxxxxxxxx; (m) to increase the employment agreement between Xybernaut authorized capital stock of the Company, all such resolutions and Xxxxxx Xxxxxx in substantially the form annexed hereto as Exhibit 7.1(k), together with such other provisions as shall be mutually acceptable to the parties thereto (the "Xxxxxx Employment Agreement"), duly executed by Xx. Xxxxxx; (n) the Escrow Agreement, duly executed written consents being certified by the Representative (as defined in Section 10.14) on behalf of the Principal Shareholders; (o) the Affiliate Agreements; (p) resignations, dated as of the Closing Date, executed by each officer and direct Secretary of the Company; (qe) copies of the investment undertakings required Company's Articles of Incorporation and By-laws as then in effect, all certified by Section 6.1(g)the Secretary of the Company; (rf) a Subsistence Certificate for the certificates and forms required Company issued by Section 6.1(l)the Secretary of the Commonwealth of the Commonwealth of Pennsylvania, dated as of a recent date; (sg) an opinion letter, from Cozen and X'Xxxxxx, counsel to the documentation required Company, addressed to the Investor, dated the date hereof, in form and substance satisfactory to the Investor; (h) a certificate of incumbency signed by Section 6.1(kthe Secretary of the Company, certifying the names, titles and signatures of the Company's officers and directors; (i) with respect to an unqualified opinion of KPMG Peat Marwick LLP on the Company's financial conditionstatements for the fiscal year ended December 31, 1996; and (tj) a receipt for the documentation required by Section 6.1(p) with respect to approval full amount of the Merger by Purchase Price, before deduction of the Company Shareholdersfees and expenses payable under Section 13.6.

Deliveries of the Company. At the ClosingClosing (except as otherwise indicated), the Company shall deliver deliver, or cause to be delivered delivered, to the following items to Acquisition Sub and XybernautPurchasers: (a) a certificate dated the Closing Date and executed by the President of the Company certifying the satisfaction of the conditions referred to in Sections 6.1(a) and (b); (bi) a certificate of the Secretary an officer of the Company Company, dated as of the Closing Date, certifying as to and attaching (A) the resolutions duly and validly adopted by Certificate of Formation of the Company's Board of Directors evidencing , (B) the authorization of their Initial LLC Agreement, (C) resolutions authorizing the execution and delivery of this Agreement and the other Company Transaction Documents and the consummation of the transactions contemplated hereby and thereby, including the issuance of the Purchased Units, and (D) the names and signatures incumbency of the officers of the Company authorized to sign this Agreement and execute the other Company Transaction Documents; (c) the opinion of Xxxxxxxx X. Xxxx, Esq., counsel to the Company, with respect to the matters set forth in Section 6.1(o); (d) a tax, lien and judgment search of the Company in the Commonwealth of Virginia showing no items not disclosed in the Schedules to this Agreement; (e) the registration rights agreement in the form of Exhibit 7.1(e) (the "Registration Rights Agreement"), providing for, among other things, Xybernaut's undertaking to use its best efforts after the Closing to file with the SEC, within ninety (90) days after the Effective Time, a registration statement Documents on Form S-3 for the registration by Xybernaut of twenty-five percent (25%) the Xybernaut Shares issued pursuant to the Merger, the expenses of which registration shall be borne by the parties in the manner set forth in the Registration Rights Agreement; (f) the certificates referred to in Section 6.1(l); (g) [INTENTIONALLY OMITTED] (h) a certificate duly executed by the President behalf of the Company, attestingas applicable, with respect to setting forth the Company, name and title and bearing the resolutions duly and validly adopted by the Company evidencing the authorization signatures of its execution and delivery of this Agreement and the other Company Transaction Documents to which the Company is a party and the consummation of the transactions contemplated hereby and thereby, as to its articles of incorporation and bylaws, and as to the incumbency of each of its executive such officers; (iii) a certificate with respect to of the Company from Secretary of State of the jurisdiction State of its incorporation attesting as to its valid existence as of a date recent Delaware, dated within ten Business Days prior to the Closing Date, to the effect that the Company is in good standing in the State of Delaware; (jiii) the Required Consents; (k) the employment agreement between Xybernaut and Xxxxxxx Xxxxxx substantially in the form annexed hereto as Exhibit 7.1 (k), together with such other provisions as shall be mutually acceptable to the parties thereto (the "Rebibo Employment Agreement), duly executed by Xx. Xxxxxx; (l) the employment agreement between Xybernaut and Xxxxxx Xxxxxxxxx in substantially the form annexed hereto as Exhibit 7.1 (k), together with such other provisions as shall be mutually acceptable to the parties thereto (the "Miskowich Employment Agreement"), duly executed by Xx. Xxxxxxxxx; (m) the employment agreement between Xybernaut and Xxxxxx Xxxxxx in substantially the form annexed hereto as Exhibit 7.1(k), together with such other provisions as shall be mutually acceptable to the parties thereto (the "Xxxxxx Employment Agreement"), duly executed by Xx. Xxxxxx; (n) the Escrow Agreement, duly executed by the Representative (as defined in Section 10.14) on behalf a certificate of an officer of the Principal Shareholders; (o) the Affiliate Agreements; (p) resignationsCompany, dated as of the Closing Date, executed by certifying that the conditions set forth in Section 2.04(b)(i) and Section 2.04(b)(ii) (in each officer case, solely as they pertain to the Company and direct of the CompanyCompany Subsidiaries) have been satisfied; (qiv) a cross-receipt executed by the investment undertakings required by Section 6.1(g)Company and the Class A Purchaser, certifying as to the Company’s receipt of the Class A Purchase Price and issuance of the Class A Units to the Class A Purchaser; (rv) a cross-receipt executed by the certificates Company and forms required by Section 6.1(l); (s) the documentation required by Section 6.1(k) with respect Class B Purchaser, certifying as to the Company's financial condition’s receipt of the Class B Purchase Price and issuance of the Class B Units to the Class B Purchaser; and (tvi) such other documents relating to the documentation required transactions contemplated by Section 6.1(p) with respect to approval of this Agreement as the Merger by the Company ShareholdersPurchasers or their respective counsel may reasonably request.

Deliveries of the Company. At the Closing, the Company shall deliver or cause to be delivered ------------------------- the following items to Acquisition Sub and Xybernautthe Buyer Group: (a) a certificate dated the Closing Date and executed by the President of the Company certifying the satisfaction of the conditions referred to in Sections 6.1(a) and (b)The Required Consents; (b) a certificate of the Secretary of the Company certifying the resolutions duly and validly adopted by the Company's Board of Directors evidencing the authorization of their execution and delivery of this Agreement and the other Company Transaction Documents and the consummation of the transactions contemplated hereby and thereby, and the names and signatures of the officers of the Company authorized to sign this Agreement and the other Company Transaction Documents; (c) the The opinion of Xxxxxxxx X. XxxxXxxxxx, Esq.Xxxx & Xxxxxxx, counsel to the Company, with respect to substantially in the matters set forth in Section 6.1(oform attached hereto as Exhibit 8.1(b);; -------------- (dc) a tax, A tax and lien and judgment search of the Company in the Commonwealth of Virginia showing no items not disclosed in the Schedules schedules to this Agreement; (d) The Employment Agreement duly executed by Xxxxxx X. Xxxxxx; (e) the registration rights agreement in the form of Exhibit 7.1(e) (the "Registration Rights Agreement"), providing for, among other things, Xybernaut's undertaking to use its best efforts after the Closing to file with the SEC, within ninety (90) days after the Effective Time, a registration statement on Form S-3 for the registration by Xybernaut of twenty-five percent (25%) the Xybernaut Shares issued pursuant to the Merger, the expenses of which registration shall be borne The Stockholders' Agreement duly executed by the parties in holders of not less than two-thirds of the manner set forth in the Registration Rights AgreementCompany Shares; (f) The Registration Rights Agreement duly executed by the certificates referred to in Section 6.1(l)holders of not less than two-thirds of the Company Shares; (g) [INTENTIONALLY OMITTED]The Escrow Agreement duly executed by the Company and the Stockholders' Representative; (h) a A certificate duly executed by the President of the Company, attesting, with respect to the Company, the resolutions duly and validly adopted by the Board of Directors of the Company evidencing the authorization of its execution and delivery of this Agreement and the other Company Transaction Documents to which the Company is a party and the consummation of the transactions contemplated hereby and thereby, as to its articles Articles of incorporation Organization and bylawsBy-laws, and as to the incumbency of each of its executive corporate officers; (i) a A certificate with respect to the Company from the jurisdiction Secretary of its incorporation The Commonwealth of Massachusetts attesting as to its valid existence as of a date recent to the Closing Date; (j) Approval of the Required Consents; (k) the employment agreement between Xybernaut Merger and Xxxxxxx Xxxxxx substantially in the form annexed hereto as Exhibit 7.1 (k), together with such other provisions as shall be mutually acceptable to the parties thereto (the "Rebibo Employment Agreement), duly executed by Xx. Xxxxxx; (l) the employment agreement between Xybernaut and Xxxxxx Xxxxxxxxx in substantially the form annexed hereto as Exhibit 7.1 (k), together with such other provisions as shall be mutually acceptable to the parties thereto (the "Miskowich Employment Agreement"), duly executed by Xx. Xxxxxxxxx; (m) the employment agreement between Xybernaut and Xxxxxx Xxxxxx in substantially the form annexed hereto as Exhibit 7.1(k), together with such other provisions as shall be mutually acceptable to the parties thereto (the "Xxxxxx Employment Agreement"), duly executed by Xx. Xxxxxx; (n) the Escrow Agreement, duly executed this Agreement by the Representative (as defined in Section 10.14) on behalf of the Principal Shareholders; (o) the Affiliate Agreements; (p) resignations, dated as of the Closing Date, executed by each officer and direct stockholders of the Company; (qk) the investment undertakings required by Section 6.1(g); (r) the certificates and forms required by Section 6.1(l); (s) All of the documentation required by Section 6.1(k7.12(b) with respect hereof; (l) A joint instruction of the Company and the Stockholders (as defined in the Xxxxxxxx Escrow Agreement) pursuant to the Escrow Agreement, dated as of May 5, 1999, among the Company's financial condition, DBI Acquisition Corp., and the other parties identified therein (the "Xxxxxxxx Escrow Agreement") relating to the substitution of the Company Common Stock held thereunder for MedSource Shares; and (tm) the documentation required by Section 6.1(p) with respect to approval Termination of the Merger by Stock Restriction and Put Agreements with each of 1995 Xxxxxx Marital Trust, dated October 17, 1995, 1995 Xxxxx Marital Trust, dated September 18, 1995, and Xxxxxxx Xxxxxxxxx (collectively, the Company Shareholders"Put Agreements") to the extent that the Puts provided in such agreements have not been, subject to the provisions of Section 7.10 hereof, fully exercised prior to the Effective Time.

Deliveries of the Company. At Concurrently with the Closingexecution of this Agreement, the Company shall deliver or cause is delivering to be delivered the following items to Acquisition Sub and Xybernauteach Investor: (a) a certificate dated the Closing Date and executed by the President of the Company certifying the satisfaction of the conditions referred to in Sections 6.1(a) and (b)Debenture; (b) a certificate of the Secretary of the Company certifying the resolutions duly and validly adopted by the Company's Board of Directors evidencing the authorization of their execution and delivery of this Agreement and the other Company Transaction Documents and the consummation of the transactions contemplated hereby and thereby, and the names and signatures of the officers of the Company authorized to sign this Agreement and the other Company Transaction DocumentsWarrant; (c) the opinion of Xxxxxxxx X. Xxxxa certificate, Esq., counsel to the Company, with respect to the matters set forth in Section 6.1(o); (d) a tax, lien and judgment search of the Company in the Commonwealth of Virginia showing no items not disclosed in the Schedules to this Agreement; (e) the registration rights agreement in the form of Exhibit 7.1(e) (the "Registration Rights Agreement"), providing for, among other things, Xybernaut's undertaking to use its best efforts after the Closing to file with the SEC, within ninety (90) days after the Effective Time, a registration statement on Form S-3 for the registration by Xybernaut of twenty-five percent (25%) the Xybernaut Shares issued pursuant to the Merger, the expenses of which registration shall be borne by the parties in the manner set forth in the Registration Rights Agreement; (f) the certificates referred to in Section 6.1(l); (g) [INTENTIONALLY OMITTED] (h) a certificate duly executed by the President of the Company, attestingdated the date hereof, certifying that there does not exist as of the date hereof a state of facts that would constitute an "Event of Default" under this Agreement or the Debentures (collectively, all such defaults being hereinafter referred to as "Defaults"), or which would, with respect notice or lapse of time, or both, constitute such a Default, and the Company is not in default under the terms, conditions or provisions of its Articles of Incorporation, as amended, its By-laws, or any indenture, mortgage or deed of trust or other material contract, agreement, lease, instrument, court order, judgment, arbitration award, or decree to the Companywhich it is a party or by which it is bound or which state of facts would, the with notice or lapse of time, or both, constitute such a default (collectively, "Other Defaults"); (d) copies of (i) resolutions duly and validly adopted by the Board of Directors of the Company evidencing authorizing and approving this Agreement, the authorization issuance of its execution and delivery the Debentures, the Warrants, the shares of this Agreement and the other Company Transaction Documents to Class B Preferred Stock into which the Company is a party Debentures may be converted, assuming the closing of the Class B Preferred Stock Financing (the "Conversion Preferred Shares"), upon the filing of the Articles Amendment (as defined below), the shares of Common Stock into which the Debentures may be converted as set forth in the Debentures (the "Conversion Common Shares"), upon the filing of the Articles Amendment, the shares of Common Stock to be issued as interest on the Debentures (the "Interest Common Shares") and, upon the filing of the Articles Amendment, the shares of Common Stock to be issued upon exercise of the Warrants (the "Warrant Common Shares"), and the consummation of the all other transactions contemplated hereby and therebyhereby, as and to its articles of incorporation and bylawsthe extent required by applicable law, and as to (ii) action by partial written consent of the incumbency shareholders of each of its executive officers; (i) a certificate with respect to the Company from representing more than 50% of the jurisdiction outstanding voting securities of its incorporation attesting as to its valid existence as of a date recent to the Closing Date; (j) the Required Consents; (k) the employment agreement between Xybernaut and Xxxxxxx Xxxxxx substantially in the form annexed hereto as Exhibit 7.1 (k), together with such other provisions as shall be mutually acceptable to the parties thereto Company (the "Rebibo Employment Agreement)Majority Shareholders") approving, duly executed by Xx. Xxxxxx; (l) the employment agreement between Xybernaut and Xxxxxx Xxxxxxxxx in substantially the form annexed hereto as Exhibit 7.1 (k)among other matters, together with such other provisions as shall be mutually acceptable to the parties thereto an amendment (the "Miskowich Employment AgreementArticles Amendment") to the Company's Amended and Restated Articles of Incorporation, as amended (as further amended by the Articles Amendment, the "Articles of Incorporation"), duly executed by Xx. Xxxxxxxxx; (m) to increase the employment agreement between Xybernaut authorized capital stock of the Company, all such resolutions and Xxxxxx Xxxxxx in substantially the form annexed hereto as Exhibit 7.1(k), together with such other provisions as shall be mutually acceptable to the parties thereto (the "Xxxxxx Employment Agreement"), duly executed by Xx. Xxxxxx; (n) the Escrow Agreement, duly executed written consents being certified by the Representative (as defined in Section 10.14) on behalf of the Principal Shareholders; (o) the Affiliate Agreements; (p) resignations, dated as of the Closing Date, executed by each officer and direct Secretary of the Company; (qe) copies of the investment undertakings required Company's Articles of Incorporation and By-laws as then in effect, all certified by Section 6.1(g)the Secretary of the Company; (f) a Subsistence Certificate for the Company issued by the Secretary of the Commonwealth of the Commonwealth of Pennsylvania, dated as of a recent date; (rg) an opinion letter, from Cozen and X'Xxxxxx, counsel to the certificates Company, addressed to the Investor, dated the date hereof, in form and forms required by Section 6.1(l)substance satisfactory to the Investor; (sh) a certificate of incumbency signed by the documentation required by Section 6.1(kSecretary of the Company, certifying the names, titles and signatures of the Company's officers and directors; (i) with respect to an unqualified opinion of KPMG Peat Marwick LLP on the Company's financial conditionstatements for the fiscal year ended December 31, 1996; and (tj) a receipt for the documentation required by Section 6.1(p) with respect to approval full amount of the Merger by Purchase Price, before deduction of the Company Shareholdersfees and expenses payable under Section 13.6.

Deliveries of the Company. At On the ClosingClosing Date, the Company shall deliver or cause to be delivered the following items to Acquisition Sub and Xybernauteach Purchaser hereunder: (a) Notes having a certificate dated face amount equal to the Closing Date and executed by the President Aggregate Subscription Amount of the Company certifying the satisfaction of the conditions referred to in Sections 6.1(a) and (b)such Purchaser; (b) a certificate copies of resolutions adopted by the Board of Directors of the Company, and certified by the Secretary of the Company certifying Company, (i) authorizing and approving the resolutions duly and validly adopted by the Company's Board of Directors evidencing the authorization of their execution and delivery of Articles, this Agreement and the other Company Transaction Documents agreements and documents required to be delivered hereby, (ii) the issuance of the Securities, and (iii) the consummation of the all other transactions contemplated hereby and thereby, and the names and signatures of the officers of the Company authorized to sign this Agreement and the other Company Transaction Documentshereby; (c) a copy of a written consent of the Company's shareholders approving the adoption and filing with the Commonwealth of Pennsylvania of the Articles; (d) copies of the Company's Second Amended and Restated Articles of Incorporation and Third Amended and Restated Bylaws as then in effect, certified by the Secretary of the Company; (e) a Subsistence Certificate for the Company issued by the Secretary of the Commonwealth of the Commonwealth of Pennsylvania, as of a recent date; (f) an opinion of from Xxxxxxx, Phleger & Xxxxxxxx X. Xxxx, Esq.LLP, counsel to the Company, with respect to the matters set forth in Section 6.1(o); (d) a tax, lien and judgment search of the Company in the Commonwealth of Virginia showing no items not disclosed in the Schedules to this Agreement; (e) the registration rights agreement in the form of attached hereto as Exhibit 7.1(e) (the "Registration Rights Agreement"), providing for, among other things, Xybernaut's undertaking to use its best efforts after the Closing to file with the SEC, within ninety (90) days after the Effective Time, a registration statement on Form S-3 for the registration by Xybernaut of twenty-five percent (25%) the Xybernaut Shares issued pursuant to the Merger, the expenses of which registration shall be borne by the parties in the manner set forth in the Registration Rights Agreement; (f) the certificates referred to in Section 6.1(l);B-1 ----------- (g) [INTENTIONALLY OMITTED]a certificate of incumbency signed by the Secretary of the Company, certifying the names, titles and signatures of certain of the Company's officers; (h) a certificate duly executed by the President an unqualified opinion of KPMG Peat Marwick LLP on the Company's financial statements for the fiscal year ended December 31, attesting, with respect to the Company, the resolutions duly and validly adopted by the Company evidencing the authorization of its execution and delivery of this Agreement and the other Company Transaction Documents to which the Company is a party and the consummation of the transactions contemplated hereby and thereby, as to its articles of incorporation and bylaws, and as to the incumbency of each of its executive officers1998; (i) a certificate with respect to the Amended and Restated Registration Rights Agreement ("REGISTRATION RIGHTS AGREEMENT") between the Company from and the jurisdiction of its incorporation attesting signatories thereto in the form attached hereto as to its valid existence as of a date recent to the Closing Date;Exhibit C; --------- (j) the Required Consents;Amended and Restated Shareholders' Agreement ("SHAREHOLDERS' AGREEMENT") between the Company and the signatories thereto in the form attached hereto as Exhibit D; --------- (k) the employment agreement between Xybernaut and Xxxxxxx Xxxxxx substantially in the form annexed hereto as Exhibit 7.1 (k), together with such other provisions as shall be mutually acceptable to the parties thereto (the "Rebibo Employment License Agreement), duly executed by Xx. Xxxxxx; (l) receipt for the employment agreement between Xybernaut and Xxxxxx Xxxxxxxxx in substantially the form annexed hereto as Exhibit 7.1 (k), together with such other provisions as shall be mutually acceptable to the parties thereto (the "Miskowich Employment Agreement"), duly executed by Xx. Xxxxxxxxx; (m) the employment agreement between Xybernaut and Xxxxxx Xxxxxx in substantially the form annexed hereto as Exhibit 7.1(k), together with such other provisions as shall be mutually acceptable to the parties thereto (the "Xxxxxx Employment Agreement"), duly executed by Xx. Xxxxxx; (n) the Escrow Agreement, duly executed by the Representative (as defined in Section 10.14) on behalf full amount of the Principal Shareholders; (o) the Affiliate Agreements; (p) resignations, dated as of the Closing Date, executed Purchase Price paid by each officer and direct of the Company; (q) the investment undertakings required by Section 6.1(g); (r) the certificates and forms required by Section 6.1(l); (s) the documentation required by Section 6.1(k) with respect to the Company's financial condition; and (t) the documentation required by Section 6.1(p) with respect to approval of the Merger by the Company Shareholderssuch Purchaser.