Common use of Performance of Obligations; Representations and Warranties Clause in Contracts

Performance of Obligations; Representations and Warranties. Each of Parent and Sub shall have performed in all material respects each of its covenants and agreements contained in this Agreement required to be performed on or prior to the Effective Time, each of the representations and warranties of Parent and Sub contained in this Agreement that is qualified by materiality shall be true and correct on and as of the Effective Time as if made on and as of such date (other than representations and warranties which address matters only as of a certain date which shall be true and correct as of such certain date) and each of the representations and warranties that is not so qualified shall be true and correct in all material respects on and as of the Effective Time as if made on and as of such date (other than representations and warranties which address matters only as of a certain date which shall be true and correct in all material respects as of such certain date), in each case, except as contemplated or permitted by this Agreement, and the Company shall have received a certificate signed on behalf of each of Parent and Sub by its Chief Executive Officer and its Chief Financial Officer to such effect; provided, that, for purposes of determining whether the condition set forth in this Section 6.2(a) has been satisfied, no representation, warranty, covenant or agreement of Parent and Sub shall be deemed untrue, incorrect, not complied with or not performed as a consequence of the existence or absence of any fact, circumstance or event unless such fact, circumstance or event, individually or when taken together with all other facts, circumstances or events inconsistent with the representations, warranties, covenants or agreements of Parent and Sub has had or would have a Material Adverse Effect on Parent and its Subsidiaries taken as a whole (disregarding for this purpose any materiality qualification contained in such representations, warranties, covenants and agreements); provided, further, however that the foregoing proviso shall not apply with respect to (x) actions done with the actual prior knowledge of the Board of Directors of Parent or any of the executive officers of Parent set forth in Section 3.8 or (y) actions set forth in subsections (i), (ii) or (iii) of Section 4.1(a).

Performance of Obligations; Representations and Warranties. Each of Parent and Sub The Company shall have performed in all material respects each of its covenants and agreements contained in this Agreement required to be performed on or prior to the Effective Time, each of the representations and warranties of Parent and Sub the Company contained in this Agreement that is qualified by materiality shall be true and correct on and as of the Effective Time as if made on and as of such date (other than representations and warranties which address matters only as of a certain date which shall be true and correct as of such certain date) and each of the representations and warranties that is not so qualified shall be true and correct in all material respects on and as of the Effective Time as if made on and as of such date (other than representations and warranties which address matters only as of a certain date which shall be true and correct in all material respects as of such certain date), in each case, case except as contemplated or permitted by this Agreement, and the Company Parent shall have received a certificate signed on behalf of each of Parent and Sub the Company by its Chief Executive Officer and its Chief Financial Officer to such effect; provided, that, for purposes of determining whether the condition set forth in this Section 6.2(a6.3(a) has been satisfied, no representation, warranty, covenant or agreement of Parent and Sub the Company shall be deemed untrue, incorrect, not complied with or not performed as a consequence of the existence or absence of any fact, circumstance or event unless such fact, circumstance or event, individually or when taken together with all other facts, circumstances or events inconsistent with the representations, warranties, covenants or agreements of Parent and Sub the Company, has had or would have a Material Adverse Effect on Parent the Company and its Subsidiaries taken as a whole (disregarding for this purpose any materiality qualification contained in such representations, representations or warranties, covenants and agreements); provided, further, however that the foregoing proviso shall not apply with respect to (x) actions done with the actual prior knowledge of the Board of Directors of Parent the Company or any of the executive officers of Parent the Company set forth in Section 3.8 2.8 or (y) actions set forth in subsections (i), (ii) or ), (iii), (viii) and (ix) of Section 4.1(a4.1(b).

Performance of Obligations; Representations and Warranties. Each of Parent and Sub The Company shall have performed in all material respects each of its covenants and complied in all material respects with all agreements contained in this Agreement required to be performed on or prior to the Effective Time, each of the representations and warranties of Parent and Sub conditions contained in this Agreement that is qualified are required to be performed or complied with by materiality shall be true and correct on and as of it prior to or at the Effective Time as if made on and as of such date (other than Closing. The Company’s representations and warranties which address matters only as of a certain date which shall be true and correct as of such certain datecontained in Sections 2.3(a) and each (c) of the representations and warranties that is not so qualified this Agreement shall be true and correct in all material respects as of the Closing with the same effect as though such representations and warranties were made on and as of the Effective Time as if made on and as of Closing, except to the extent that such date (other than representations and warranties expressly relate to an earlier date, in which address matters only as of a certain date which case such representations and warranties shall be true and correct in all material respects as of such certain earlier date), and each of the Company’s representations and warranties in each other Section of Article II of this Agreement shall be true and correct in all respects as of the Closing with the same effect as though such representations and warranties were made on and as of the Closing, except to the extent that such representations and warranties expressly relate to an earlier date, in each case, except which case such representations and warranties shall be true and correct in all respects as contemplated or permitted by this Agreementof such earlier date, and except where the failure of such representations and warranties to be true and correct in all respects would not have or would not be reasonably likely to result in a Company Material Adverse Effect, provided that any such representation and warranty that is itself qualified as to materiality shall not be deemed so qualified for purposes of this condition. Ciena shall have received a certificate dated the Closing Date and signed on behalf of each of Parent and Sub by its the Chief Executive Officer and its Chief Financial Officer to such effect; providedOfficer, President or a Vice-President of the Company, certifying that, for purposes of determining whether the condition set forth conditions specified in this Section 6.2(a5.2(a) has have been satisfied, no representation, warranty, covenant or agreement of Parent and Sub shall be deemed untrue, incorrect, not complied with or not performed as a consequence of the existence or absence of any fact, circumstance or event unless such fact, circumstance or event, individually or when taken together with all other facts, circumstances or events inconsistent with the representations, warranties, covenants or agreements of Parent and Sub has had or would have a Material Adverse Effect on Parent and its Subsidiaries taken as a whole (disregarding for this purpose any materiality qualification contained in such representations, warranties, covenants and agreements); provided, further, however that the foregoing proviso shall not apply with respect to (x) actions done with the actual prior knowledge of the Board of Directors of Parent or any of the executive officers of Parent set forth in Section 3.8 or (y) actions set forth in subsections (i), (ii) or (iii) of Section 4.1(a).

Performance of Obligations; Representations and Warranties. Each of Parent and Sub (i) The Company shall have performed in all material respects each of its covenants and agreements contained in this Agreement required to be performed on or prior to the Effective Time, each . (ii) Each of the representations and warranties of Parent and Sub the Company contained in Section 3.2 of this Agreement shall be true and correct in all respects (except for inaccuracies that are de minimis in the aggregate) on and as of the Effective Time as if made on and as of such date (other than representations and warranties which address matters only as of a certain date which shall be true and correct as of such certain date). (iii) Each of the representations and warranties of the Company contained in Sections 3.1, 3.3, 3.8 and 3.14 of this Agreement shall be true and correct in all material respects on and as of the Effective Time as if made on and as of such date (other than representations and warranties which address matters only as of a certain date which shall be true and correct as of such certain date) and each such representation and warranty that is qualified by materiality shall be true and correct on and as of the Effective Time as if made on and as of such date (other than representations and warranties which address matters only as of a certain date which shall be true and correct as of such certain date). (iv) and each Each of the representations and warranties that is not so qualified of the Company contained in this Agreement (other than the representations and warranties contained in Sections 3.1, 3.2, 3.3, 3.8 and 3.14) shall be true and correct in all material respects on and as of the Effective Time as if made on and as of such date (other than representations and warranties which address matters only as of a certain date which shall be true and correct in all material respects as of such certain date), in each caseexcept where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to “materially”, except as contemplated “Material Adverse Effect” or permitted by this Agreement, and the Company shall have received a certificate signed on behalf of each of Parent and Sub by its Chief Executive Officer and its Chief Financial Officer to such effect; provided, that, for purposes of determining whether the condition similar qualification set forth in this Section 6.2(atherein) has been satisfied, no representation, warranty, covenant or agreement of Parent not had and Sub shall would not reasonably be deemed untrue, incorrect, not complied with or not performed as a consequence of the existence or absence of any fact, circumstance or event unless such fact, circumstance or eventexpected to have, individually or when taken together with all other factsin the aggregate, circumstances or events inconsistent with the representations, warranties, covenants or agreements of Parent and Sub has had or would have a Material Adverse Effect on Parent and its Subsidiaries taken as a whole (disregarding for this purpose any materiality qualification contained in such representations, warranties, covenants and agreements); provided, further, however that the foregoing proviso shall not apply with respect to (x) actions done with the actual prior knowledge of the Board of Directors of Parent or any of the executive officers of Parent set forth in Section 3.8 or (y) actions set forth in subsections (i), (ii) or (iii) of Section 4.1(a)Effect.

Performance of Obligations; Representations and Warranties. Each of Parent and Sub shall have performed in all material respects each of its covenants and agreements contained in this Agreement required to be performed on at or prior to the Effective Time, each of the representations and warranties of Parent and Sub contained in this Agreement that is qualified by as to materiality shall be true and correct on at and as of the Effective Time as if made on at and as of such date time (other than representations and warranties which address matters only as of a certain date date, which shall be true and correct as of such certain date) and ), each of the representations and warranties that is not so qualified shall be true and correct in all material respects on and as of the Effective Time as if made on and as of such date (other than representations and warranties which address matters only as of a certain date date, which shall be true and correct in all material respects as of such certain date), in each case, case except as otherwise contemplated or permitted by this Agreement, and the Company shall have received a certificate certificates signed on behalf of each of Parent and Sub by its Chief Executive Financial Officer and its Chief Financial Officer President or any Executive Vice-President (the "Parent Closing Certificate") to such effect; providedPROVIDED, thatHOWEVER, for purposes of determining whether the that this condition set forth in this Section 6.2(a) has been satisfied, no representation, warranty, covenant or agreement of Parent and Sub shall be deemed untrue, incorrect, (i) not complied with to have been satisfied if the cumulative effect of all inaccuracies in such representations and warranties (without regard to any qualification in any particular representation or not performed warranty as a consequence to materiality or Parent Material Adverse Effect (other than the proviso to the last sentence of the existence or absence of any fact, circumstance or event unless such fact, circumstance or event, individually or when taken together with all other facts, circumstances or events inconsistent with the representations, warranties, covenants or agreements of Parent and Sub Section 2.1)) has had or would reasonably be expected to have a Parent Material Adverse Effect on Parent and its Subsidiaries taken as a whole (disregarding for this purpose any materiality qualification contained in such representations, warranties, covenants and agreements); provided, further, however that the foregoing proviso shall not apply with respect to (x) actions done with the actual prior knowledge of the Board of Directors of Parent or any of the executive officers of Parent set forth in Section 3.8 or (y) actions set forth in subsections (i), (ii) to have been satisfied (with respect only to the representations and warranties of Parent and Sub) if the cumulative effect of all inaccuracies in such representations and warranties (without regard to any qualification in any particular representation or warranty as to materiality or Parent Material Adverse Effect (iiiother than as aforesaid)) of Section 4.1(a)has not had and would not reasonably be expected to have a Parent Material Adverse Effect.

Performance of Obligations; Representations and Warranties. Each of Parent and Sub (i) The Company shall have performed in all material respects each of its covenants and agreements contained in this Agreement required to be performed on or prior to the Effective Time, (ii) each of the representations and warranties of Parent and Sub the Company contained in this Agreement that is qualified by materiality shall have been true and correct when made, and shall be true and correct on and as of the Effective Time as if made on and as of such date (other than representations and warranties which address matters only as of a certain date which shall be true and correct as of such certain date) and (iii) each of the representations and warranties that is not so qualified shall have been true and correct in all material respects when made, and shall be true and correct in all material respects on and as of the Effective Time as if made on and as of such date (other than representations and warranties which address matters only as of a certain date which shall be true and correct in all material respects as of such certain date), in each case, case except as contemplated or permitted by this Agreement; provided that, except for the representations and warranties in Sections 3.1, 3.2, 3.3, 3.4, 3.7, 3.18 or 3.19 which shall not be subject to this proviso, clauses (ii) and (iii) of this Section 6.3(a) shall be deemed to be fulfilled so long as such failures of such representations and warranties referred to therein to be so true and correct (considered without any materiality qualifier set forth therein for the Company purposes of this section), would not, individually or in the aggregate, have a Material Adverse Effect on the Company. Parent shall have received a certificate signed on behalf of each of Parent and Sub the Company by its Chief Executive Officer and or its Chief Financial Officer to such effect; provided, that, for purposes of determining whether the condition set forth in this Section 6.2(a) has been satisfied, no representation, warranty, covenant or agreement of Parent and Sub shall be deemed untrue, incorrect, not complied with or not performed as a consequence of the existence or absence of any fact, circumstance or event unless such fact, circumstance or event, individually or when taken together with all other facts, circumstances or events inconsistent with the representations, warranties, covenants or agreements of Parent and Sub has had or would have a Material Adverse Effect on Parent and its Subsidiaries taken as a whole (disregarding for this purpose any materiality qualification contained in such representations, warranties, covenants and agreements); provided, further, however that the foregoing proviso shall not apply with respect to (x) actions done with the actual prior knowledge of the Board of Directors of Parent or any of the executive officers of Parent set forth in Section 3.8 or (y) actions set forth in subsections (i), (ii) or (iii) of Section 4.1(a).

Performance of Obligations; Representations and Warranties. Each of Parent (i) The Company Stockholder Approval shall have been obtained. (ii) Stockholder and Sub the Company shall have performed and complied in all material respects each of its with all agreements and covenants and agreements contained in this Agreement that are required to be performed on or complied with by Stockholder or the Company, as applicable, prior to or at the Effective Time, each Closing. (iii) Each of the representations and warranties of Parent and Sub the Company contained in this Agreement that is qualified by materiality shall be true and correct on and as of the Effective Time as if made on and as of such date ARTICLE III (other than representations and warranties which address matters only as of a certain date which shall be true and correct as of such certain date) and each of the representations and warranties of the Company set forth in Section 3.11(a)(x) (which shall true and correct only as of the date hereof)) (A) that is not so are qualified as to materiality or Material Adverse Effect shall be true and correct in all respects and (B) that are not so qualified shall be complete and correct in all material respects respects, in each case, on and as of the Effective Time Closing with the same effect as if though such representations and warranties were made on and as of the Closing, except (a) for changes permitted by this Agreement, and (b) to the extent that such date (other than representations and warranties expressly relate to an earlier date, in which address matters only case such representations or warranties (x) that are qualified as of a certain date which to materiality or Material Adverse Effect shall be true and correct in all respects and (y) that are not so qualified shall be complete and correct in all material respects as of such certain date)respects, in each case, except on and as contemplated or permitted by this Agreement, of such earlier date with the same effect as though such representations and the Company warranties were made on and as of such earlier date. Parent shall have received a certificate dated as of the Closing Date and signed on behalf by the President of each of Parent the Company, certifying that the conditions specified in Sections 7.2(a)(i) and Sub by its Chief Executive Officer and its Chief Financial Officer to such effect; provided, that, for purposes of determining whether the condition set forth in this Section 6.2(a(iii) has have been satisfied, no representation, warranty, covenant . (iv) Each of the representations and warranties of Stockholder contained in ARTICLE IV (A) that are qualified as to materiality or agreement of Parent and Sub material adverse effect shall be deemed untruetrue and correct in all respects and (B) that are not so qualified shall be complete and correct in all material respects, incorrectin each case, not complied with or not performed on and as a consequence of the existence or absence of any fact, circumstance or event unless such fact, circumstance or event, individually or when taken together with all other facts, circumstances or events inconsistent Closing with the representationssame effect as though such representations and warranties were made on and as of the Closing, warrantiesexcept for changes permitted by this Agreement and except to the extent that such representations and warranties expressly relate to an earlier date, covenants in which case such representations or agreements of Parent and Sub has had warranties (x) that are qualified as to materiality or would have a Material Adverse Effect on Parent shall be true and its Subsidiaries taken as a whole (disregarding for this purpose any materiality qualification contained correct in such representations, warranties, covenants all respects and agreements); provided, further, however that the foregoing proviso shall not apply with respect to (x) actions done with the actual prior knowledge of the Board of Directors of Parent or any of the executive officers of Parent set forth in Section 3.8 or (y) actions set forth that are not so qualified shall be complete and correct in subsections (i)all material respects, (iiin each case, on and as of the Closing. Parent shall have received a certificate dated as of the Closing Date and signed by an authorized officer of Stockholder, certifying that the conditions specified in Sections 7.2(a)(i) or and (iii) of Section 4.1(a)have been satisfied.

Performance of Obligations; Representations and Warranties. Each of Parent and Sub (i) The Company shall have performed in all material respects each of its covenants and agreements contained in this Agreement required to be performed on or prior to the Effective Time, Closing Date; (ii) each of the representations and warranties of the Company contained in Section 3.2 (Capital Structure), Section 3.3 (Authority), Section 3.6 (Registration Statement and Joint Proxy Statement), Section 3.11(a)(ii) (Certain Agreements) (only insofar as such representation and warranty relates to contractual provisions that would be binding on Parent and Sub contained in this Agreement that is qualified by materiality its Subsidiaries (other than the Company and its Subsidiaries) after the Merger and the Subsequent Merger), Section 3.17 (State Takeover Statutes; Certain Charter Provisions), Section 3.18 (Required Vote of Company Stockholders) and Section 3.21 (Rights Agreement) shall be true and correct in all material respects as of the date of this Agreement and on and as of the Effective Time Closing Date as if made on and as of such date (other than representations and warranties which address matters only as of a certain date which shall be true and correct as of such certain date) and than, in each of the representations and warranties that is not so qualified shall be true and correct in all material respects on and as of the Effective Time as if made on and as of such date (other than case, representations and warranties which address matters only as of a certain date which shall be true and correct in all material respects as of such certain date); and (iii) each of the representations and warranties of the Company contained in this Agreement (other than those contained in the preceding clause), when read without any exception or qualification as to materiality or Material Adverse Effect, shall be true and correct as of the date of this Agreement and on and as of the Closing Date as if made on and as of such date (other than, in each case, representations and warranties which address matters only as of a certain date which shall be true and correct as of such certain date), except where the failure to be so true and correct would not, individually or in the aggregate with respect to all such failures, have a Material Adverse Effect on the Company or reasonably be likely to materially adversely affect the ability of the Company to effect the Merger in accordance with this Agreement, in the case of each of clauses (ii) and (iii) of this Section 6.3 (a) except as contemplated or permitted by this Agreement, and the Company Parent shall have received a certificate signed on behalf of each of Parent and Sub the Company by its Chief Executive Officer and its Chief Financial Officer to such effect; provided, that, for purposes of determining whether the condition set forth in this Section 6.2(a) has been satisfied, no representation, warranty, covenant or agreement of Parent and Sub shall be deemed untrue, incorrect, not complied with or not performed as a consequence of the existence or absence of any fact, circumstance or event unless such fact, circumstance or event, individually or when taken together with all other facts, circumstances or events inconsistent with the representations, warranties, covenants or agreements of Parent and Sub has had or would have a Material Adverse Effect on Parent and its Subsidiaries taken as a whole (disregarding for this purpose any materiality qualification contained in such representations, warranties, covenants and agreements); provided, further, however that the foregoing proviso shall not apply with respect to (x) actions done with the actual prior knowledge of the Board of Directors of Parent or any of the executive officers of Parent set forth in Section 3.8 or (y) actions set forth in subsections (i), (ii) or (iii) of Section 4.1(a).

Performance of Obligations; Representations and Warranties. Each of Parent and Sub (i) The Company shall have performed in all material respects each of its covenants and agreements contained in this Agreement required to be performed on or prior to the Effective Time, Closing Date; (ii) each of the representations and warranties of the Company contained in Section 3.2 (Capital Structure), Section 3.3 (Authority), Section 3.6 (Registration Statement and Joint Proxy Statement), Section 3.11(a)(ii) (Certain Agreements) (only insofar as such representation and warranty relates to contractual provisions that would be binding on Parent and Sub contained in this Agreement that is qualified by materiality its Subsidiaries (other than the Company and its Subsidiaries) after the Merger and the Subsequent Merger), Section 3.17 (State Takeover Statutes; Certain Charter Provisions), Section 3.18 (Required Vote of Company Stockholders) and Section 3.21 (Rights Agreement) shall be true and correct in all material respects as of the date of this Agreement and on and as of the Effective Time Closing Date as if made on and as of such date (other than representations and warranties which address matters only as of a certain date which shall be true and correct as of such certain date) and than, in each of the representations and warranties that is not so qualified shall be true and correct in all material respects on and as of the Effective Time as if made on and as of such date (other than case, representations and warranties which address matters only as of a certain date which shall be true and correct in all material respects as of such certain date); and (iii) each of the representations and warranties of the Company contained in this Agreement (other than those contained in the preceding clause), when read without any exception or qualification as to materiality or Material Adverse Effect, shall be true and correct as of the date of this Agreement and on and as of the Closing Date as if made on and as of such date (other than, in each case, representations and warranties which address matters only as of a certain date which shall be true and correct as of such certain date), except where the failure to be so true and correct would not, individually or in the aggregate with respect to all such failures, have a Material Adverse Effect on the Company or reasonably be likely to materially adversely affect the ability of the Company to effect the Merger in accordance with this Agreement, in the case of each of clauses (ii) and (iii) of this Section 6.3(a) except as contemplated or permitted by this Agreement, and the Company Parent shall have received a certificate signed on behalf of each of Parent and Sub the Company by its Chief Executive Officer and its Chief Financial Officer to such effect; provided, that, for purposes of determining whether the condition set forth in this Section 6.2(a) has been satisfied, no representation, warranty, covenant or agreement of Parent and Sub shall be deemed untrue, incorrect, not complied with or not performed as a consequence of the existence or absence of any fact, circumstance or event unless such fact, circumstance or event, individually or when taken together with all other facts, circumstances or events inconsistent with the representations, warranties, covenants or agreements of Parent and Sub has had or would have a Material Adverse Effect on Parent and its Subsidiaries taken as a whole (disregarding for this purpose any materiality qualification contained in such representations, warranties, covenants and agreements); provided, further, however that the foregoing proviso shall not apply with respect to (x) actions done with the actual prior knowledge of the Board of Directors of Parent or any of the executive officers of Parent set forth in Section 3.8 or (y) actions set forth in subsections (i), (ii) or (iii) of Section 4.1(a).

Performance of Obligations; Representations and Warranties. Each of Parent and Sub The ---------------------------------------------------------- Company shall have performed in all material respects each of its covenants and agreements contained in this Agreement required to be performed on or prior to the Effective Time, each of the representations and warranties of Parent and Sub the Company contained in this Agreement that is qualified by materiality shall have been true and correct when made, and shall be true and correct on and as of the Effective Time as if made on and as of such date (other than representations and warranties which address matters only as of a certain date which shall be true and correct as of such certain date) and ), each of the representations and warranties that is not so qualified shall have been true and correct in all material respects when made, and shall be true and correct in all material respects on and as of the Effective Time as if made on and as of such date (other than representations and warranties which address matters only as of a certain date which shall be true and correct in all material respects as of such certain date), in each case, case except as contemplated or permitted by this Agreement, provided, however, that for the purpose of this Section 6.3(a) and of Section 7.1(c), in the case of the representations and warranties made in Section 3.7 hereof relating to the period between the date of this Agreement and the Company Effective Time, such representations and warranties shall only be deemed to not be true and correct if the aggregate effect of the matters as to which they are not true and correct would constitute a Post Signing Material Adverse Change as defined in Section 6.3(e) hereof. Parent shall have received a certificate signed on behalf of each of Parent and Sub the Company by its Chief Executive Officer and its Chief Financial Officer to such effect; provided, that, for purposes of determining whether the condition set forth in this Section 6.2(a) has been satisfied, no representation, warranty, covenant or agreement of Parent and Sub shall be deemed untrue, incorrect, not complied with or not performed as a consequence of the existence or absence of any fact, circumstance or event unless such fact, circumstance or event, individually or when taken together with all other facts, circumstances or events inconsistent with the representations, warranties, covenants or agreements of Parent and Sub has had or would have a Material Adverse Effect on Parent and its Subsidiaries taken as a whole (disregarding for this purpose any materiality qualification contained in such representations, warranties, covenants and agreements); provided, further, however that the foregoing proviso shall not apply with respect to (x) actions done with the actual prior knowledge of the Board of Directors of Parent or any of the executive officers of Parent set forth in Section 3.8 or (y) actions set forth in subsections (i), (ii) or (iii) of Section 4.1(a).

Performance of Obligations; Representations and Warranties. Each of Parent and Sub The Company shall have performed in all material respects each of its covenants and agreements contained in this Agreement required to be performed on or prior to the Effective Time, each of the representations and warranties of Parent and Sub the Company contained in this Agreement that is qualified by materiality shall be true and correct on and as of the Effective Time as if made on and as of such date (other than representations and warranties which address matters only as of a certain date which shall be true and correct as of such certain date) and each of the representations and warranties that is not so qualified shall be true and correct in all material respects on and as of the Effective Time as if made on and as of such date (other than representations and warranties which address matters only as of a certain date which shall be true and correct in all material respects as of such certain date), in each case, case except as contemplated or permitted by this Agreement, and the Company Parent shall have received a certificate signed on behalf of each of Parent and Sub the Company by its Chief Executive Officer and its Chief Financial Officer to such effect; provided. 35 42 (b) Tax Opinion. Parent shall have received an opinion of Wyatx, thatXxrrxxx & Xombx, for purposes xx form and substance reasonably satisfactory to Parent, dated the Effective Time, substantially to the effect that on the basis of determining whether the condition facts, representations and assumptions set forth in this such opinion which are consistent with the state of facts existing as of the Effective Time, for federal income tax purposes: (i) the Merger will constitute a "reorganization" within the meaning of Section 6.2(a368(a) has been satisfiedof the Code, and the Company, Sub and Parent will each be a party to that reorganization within the meaning of Section 368(b) of the Code; (ii) no representationgain or loss will be recognized by Parent, warranty, covenant Sub or agreement the Company as a result of the Merger; (iii) no gain or loss will be recognized by the stockholders of the Company upon the conversion of their shares of Company Common Stock into shares of Parent and Sub shall be deemed untrueCommon Stock pursuant to the Merger, incorrect, not complied with or not performed as a consequence of the existence or absence of any fact, circumstance or event unless such fact, circumstance or event, individually or when taken together with all other facts, circumstances or events inconsistent with the representations, warranties, covenants or agreements of Parent and Sub has had or would have a Material Adverse Effect on Parent and its Subsidiaries taken as a whole (disregarding for this purpose any materiality qualification contained in such representations, warranties, covenants and agreements); provided, further, however that the foregoing proviso shall not apply except with respect to cash, if any, received in lieu of fractional shares of Parent Common Stock; (xiv) actions done with the actual prior knowledge aggregate tax basis of the Board of Directors shares of Parent or any Common Stock received in exchange for shares of Company Common Stock pursuant to the Merger (including a fractional share of Parent Common Stock for which cash is received) will be the same as the aggregate tax basis of such shares of Company Common Stock; (v) the holding period for shares of Parent Common Stock received in exchange for shares of Company Common Stock pursuant to the Merger will include the holder's holding period for such shares of Company Common Stock, provided such shares of Company Common Stock were held as capital assets by the holder at the Effective Time; and (vi) a stockholder of the executive officers Company who receives cash in lieu of a fractional share of Parent set forth Common Stock will recognize gain or loss equal to the difference, if any, between such stockholder's basis in Section 3.8 or the fractional share (ydetermined under clause (iv) actions set forth above) and the amount of cash received. In rendering such opinion, Wyatx, Xxrrant & Combx xxx rely upon representations contained herein and may receive and rely upon representations from Parent, the Company, and others, including representations from Parent substantially similar to the representations in subsections (i), (ii) or (iii) of Section 4.1(a)the Parent Tax Certificate attached to the Parent Letter and representations from the Company substantially similar to the representations in the Company Tax Certificate attached to the Company Letter.

Performance of Obligations; Representations and Warranties. Each of Parent and Sub the Buyer Parties shall have performed in all material respects each of its covenants and complied in all material respects with all agreements contained in this Agreement required to be performed on or prior to the Effective Time, each of the representations and warranties of Parent and Sub conditions contained in this Agreement that is qualified are required to be performed or complied with by materiality shall be true and correct on and as of it prior to or at the Effective Time as if made on and as of such date (other than Closing. The Buyer Parties’ representations and warranties which address matters only as contained in Section 3.9 of a certain date which shall be true and correct as of such certain date) and each of the representations and warranties that is not so qualified shall be true and correct in all material respects on and as of the Effective Time as if made on and as of such date (other than representations and warranties which address matters only as of a certain date which this Agreement shall be true and correct in all material respects as of the Closing with the same effect as though such certain representations and warranties were made on and as of the Closing, and each of the representations and warranties of the Buyer Parties contained in each other section of Article III of this Agreement shall be true and correct in all respects as of the Closing with the same effect as though such representations and warranties were made on and as of the Closing, except to the extent that such representations and warranties expressly relate to an earlier date), in each casewhich case such representations and warranties shall be true and correct in all respects as of such earlier date and except where the failure of such representation and warranty to be true and correct in all respects would not have and would not be reasonably likely to result in a Ciena Material Adverse Effect, except provided that any such representation and warranty that is itself qualified as contemplated or permitted by to materiality shall not be deemed so qualified for purposes of this Agreement, and the condition. The Company shall have received certificates dated the Closing Date and signed by the Chairman, President or a certificate signed on behalf Senior Vice-President of each of Parent and Sub by its Chief Executive Officer and its Chief Financial Officer to such effect; providedCiena, that, for purposes of determining whether certifying that the condition set forth conditions specified in this Section 6.2(a5.3(a) has have been satisfied, no representation, warranty, covenant or agreement of Parent and Sub shall be deemed untrue, incorrect, not complied with or not performed as a consequence of the existence or absence of any fact, circumstance or event unless such fact, circumstance or event, individually or when taken together with all other facts, circumstances or events inconsistent with the representations, warranties, covenants or agreements of Parent and Sub has had or would have a Material Adverse Effect on Parent and its Subsidiaries taken as a whole (disregarding for this purpose any materiality qualification contained in such representations, warranties, covenants and agreements); provided, further, however that the foregoing proviso shall not apply with respect to (x) actions done with the actual prior knowledge of the Board of Directors of Parent or any of the executive officers of Parent set forth in Section 3.8 or (y) actions set forth in subsections (i), (ii) or (iii) of Section 4.1(a).

Performance of Obligations; Representations and Warranties. Each of (i) Parent and Sub shall have performed in all material respects each of its covenants and agreements contained in this Agreement and the Indemnification Escrow Agreement required to be performed on at or prior to the Effective Time, Closing; (ii) each of the representations and warranties of Parent and Sub contained in this Agreement that is not qualified by materiality shall be true and correct on and as of the Effective Time as if made on and as of such date (other than representations and warranties which address matters only as of a certain date which shall be true and correct as of such certain date) and each of the representations and warranties that is not so qualified materiality, material adverse effect or similar variation thereof shall be true and correct in all material respects on and as of the Effective Time Closing Date as if made on and as of such date (other than any such representations and warranties which address matters only as of a certain date date, which shall be true and correct in all material respects as of such certain date) (iii) each of the representations and warranties of Parent contained in this Agreement that are qualified by materiality, material adverse effect or any variation thereof shall be true and correct in all respects on and as of the Closing Date as if made on and as of such date (other than any such representations and warranties which address matters only as of a certain date, which shall be true and correct in all respects as of such certain date), in each case, except as contemplated or permitted by this Agreement, and (iv) the Company shall have received a certificate certificate, dated as of the Closing Date, signed on behalf of each Parent by a duly authorized officer of Parent and Sub by its Chief Executive Officer and its Chief Financial Officer Parent, to such effect; provided, that, for . For purposes of determining whether the condition set forth in this Section 6.2(a) has been satisfied, no representation, warranty, covenant or agreement accuracy of Parent representations and Sub shall be deemed untrue, incorrect, not complied with or not performed as a consequence of the existence or absence of any fact, circumstance or event unless such fact, circumstance or event, individually or when taken together with all other facts, circumstances or events inconsistent with the representations, warranties, covenants or agreements of Parent and Sub has had or would have a Material Adverse Effect on Parent and its Subsidiaries taken as a whole (disregarding for this purpose any materiality qualification contained in such representations, warranties, covenants and agreements); provided, further, however that the foregoing proviso shall not apply with respect to (x) actions done with the actual prior knowledge of the Board of Directors of Parent or any of the executive officers warranties of Parent set forth in this Agreement for purposes of this Section 3.8 or (y) actions set forth in subsections (i7.2(a), any update of or modification to the disclosure schedules of Parent made or purported to have been made after the date hereof (iior any information provided by Parent under Section 5.1 or otherwise) or (iii) of Section 4.1(a)shall be disregarded.

Performance of Obligations; Representations and Warranties. Each of Parent and Sub The Company shall have performed in all material respects each of its covenants and agreements contained in this Agreement required to be performed on at or prior to the Effective Time, each of the representations and warranties of Parent and Sub the Company contained in this Agreement that is qualified by as to materiality shall be true and correct on at and as of the Effective Time as if made at and as of such time (other than representations and warranties which address matters only as of a certain date, which shall be true and correct as of such certain date), each of the representations and warranties that is not so qualified shall be true and correct in all material respects at and as of the Effective Time as if made on and as of such date (other than representations and warranties which address matters only as of a certain date which shall be true and correct as of such certain date) and each of the representations and warranties that is not so qualified shall be true and correct in all material respects on and as of the Effective Time as if made on and as of such date (other than representations and warranties which address matters only as of a certain date , which shall be true and correct in all material respects as of such certain date), in each case, except as contemplated or permitted by this Agreement, and the Company Parent shall have received a certificate signed on behalf of each of Parent and Sub the Company by its Chief Executive Officer and its Chief Financial Officer (the "Company Closing Certificate") to such effect; providedPROVIDED, thatHOWEVER, for purposes of determining whether the that this condition set forth in this Section 6.2(a) has been satisfied, no representation, warranty, covenant or agreement of Parent and Sub shall be deemed untrue, incorrect, (i) not complied with to have been satisfied if the cumulative effect of all inaccuracies in such representations and warranties (without regard to any qualification in any particular representation or not performed warranty as a consequence to materiality or Company Material Adverse Effect (other than the two provisos to the last sentence of the existence or absence of any fact, circumstance or event unless such fact, circumstance or event, individually or when taken together with all other facts, circumstances or events inconsistent with the representations, warranties, covenants or agreements of Parent and Sub Section 3.1(a))) has had or would reasonably be expected to have a Company Material Adverse Effect on Parent and its Subsidiaries taken as a whole (disregarding for this purpose any materiality qualification contained in such representations, warranties, covenants and agreements); provided, further, however that the foregoing proviso shall not apply with respect to (x) actions done with the actual prior knowledge of the Board of Directors of Parent or any of the executive officers of Parent set forth in Section 3.8 or (y) actions set forth in subsections (i), (ii) to have been satisfied (with respect only to the representations and warranties of the Company) if the cumulative effect of all inaccuracies in such representations and warranties (without regard to any qualification in any particular representation or warranty as to materiality or Company Material Adverse Effect (iiiother than as aforesaid)) of Section 4.1(a)has not had and would not reasonably be expected to have a Company Material Adverse Effect.