Common use of Conditions of Merger Clause in Contracts

Conditions of Merger. 5.1 Conditions to the Obligations of Each Party to Effect the Merger. The respective obligations of each party to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of each of the following conditions: (a) This Agreement and the Merger shall have been approved and adopted by the affirmative vote of a majority of shares held by the stockholders of the Company, as required under the laws of the State of Delaware. (b) Any waiting period (and any extension thereof) applicable to the consummation of the Merger under the HSR Act shall have expired or be exterminated. (c) No temporary restraining order, preliminary or permanent injunction, judgment or other order, decree or ruling nor any statute, rule, regulation , SEC stop order or other order shall be in effect which would make the acquisition or holding by Parent or its Affiliates of Shares or shares of Common Stock of the Surviving Corporation illegal or otherwise prevent the consummation of the Merger. 5.2 Conditions Precedent to Parent's and Purchaser's Obligations. In addition to the conditions set forth in Section 5.1, the Parent and Purchaser shall be obligated to perform the acts contemplated for performance by them under Article I only if each of the following conditions is satisfied at or prior to the Closing Date, unless any such condition is waived in writing by Parent and Purchaser: (a) The receipt of cash proceeds of the Financing under the terms and in the amounts set forth pursuant to the terms of the Commitments ("Financing Condition"). (b) The representations and warranties of the Company set forth in Article 2 shall be true and correct as of the Closing Date with the same force and effect as though made again at and as of the Closing Date, except for any representations and warranties that address matters only as of a particular date specifically set forth in such representation, other than the date hereof, (which shall remain true and correct as of such date). (c) The Company shall have performed and complied (x) in all respects with its covenants under Sections 4.1(ii) and 4.1(iii) and (y) in all material respects, individually or in the aggregate, (without giving duplicative effect to any materiality qualification contained in the applicable obligation) with all other covenants and agreements contained in this Agreement required to be performed or complied with by it on or before the Closing Date. (d) Since the date of this Agreement, there shall not have been the occurrence of any event or condition, or series of events or conditions, that has had or would reasonably be expected to have a Material Adverse Effect.

Conditions of Merger. 5.1 Section 7.1 Conditions to the Obligations Obligation of Each each Party to Effect the Merger. The respective obligations of each party Party to effect the Merger shall be subject to the satisfaction at or prior to the Closing Date of the following conditions: (a) the Company Voting Proposal shall have been approved by the Company Stockholders in the manner required under the MGCL, the rules of the NYSE and the Organizational Documents of the Company; (b) no statute, rule, regulation, executive order, decree, ruling, injunction or other order (whether temporary, preliminary or permanent) shall have been enacted, entered, promulgated or enforced by any Governmental Entity of competent jurisdiction and no other legal restraint or prohibition shall be in effect which prohibits, restrains or enjoins the consummation of the Merger; (c) if Parent has made a Stock Election, the Registration Statement shall have become effective under the Securities Act and shall not be the subject of any stop order suspending the effectiveness of the Registration Statement nor shall proceedings for that purpose have been threatened, and any material Blue Sky Law permits and approvals applicable to the registration of the Parent Common Stock to be exchanged for Company Common Stock shall have been obtained; provided that, if this condition cannot be satisfied before the Termination Date and Parent has made a Stock Election, such Stock Election shall be deemed to have been revoked and only Cash Consideration shall be paid in the Merger; (d) all filings required to be made prior to the Closing by any Party or any of its respective Subsidiaries with, and all consents, approvals and authorizations required to be obtained prior to the Closing by any Party or any of its respective Subsidiaries from, any Governmental Entity in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby shall have been made or obtained, except where the failure to obtain such consents would not cause a Company Material Adverse Effect or a Parent Material Adverse Effect and could not reasonably be expected to subject the Parties or their Affiliates or any directors, officers, agents or advisors of any of the foregoing to the risk of criminal liability; (e) if Parent has made a Stock Election, the shares of Parent Common Stock issuable to the holders of Company Shares pursuant to this Agreement shall have been approved for listing on the NYSE upon official notice of issuance; provided that, if this condition cannot be satisfied before the Termination Date and Parent has made a Stock Election, such Stock Election shall be deemed to have been revoked and only Cash Consideration shall be paid in the Merger; and Section 7.2 Conditions to Obligations of the Company to Effect the Merger. The obligation of the Company, CTOP and Pinecreek OP to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of each Closing Date of the following additional conditions: (a) This Agreement and the Merger shall have been approved and adopted by the affirmative vote of a majority of shares held by the stockholders of the Company, as required under the laws of the State of Delaware. (b) Any waiting period (and any extension thereof) applicable to the consummation of the Merger under the HSR Act shall have expired or be exterminated. (c) No temporary restraining order, preliminary or permanent injunction, judgment or other order, decree or ruling nor any statute, rule, regulation , SEC stop order or other order shall be in effect which would make the acquisition or holding by Parent or its Affiliates of Shares or shares of Common Stock of the Surviving Corporation illegal or otherwise prevent the consummation of the Merger. 5.2 Conditions Precedent to Parent's and Purchaser's Obligations. In addition to the conditions set forth in Section 5.1, the Parent and Purchaser shall be obligated to perform the acts contemplated for performance by them under Article I only if each of the following conditions is satisfied at or prior to the Closing Date, unless any such condition is waived in writing by Parent and Purchaser: (a) The receipt of cash proceeds of the Financing under the terms and in the amounts set forth pursuant to the terms of the Commitments ("Financing Condition"). (b) The representations and warranties of Parent, Merger Sub, CTOP Merger Sub and Pinecreek Merger Sub contained in this Agreement shall be true and correct (without regard to any materiality or Parent Material Adverse Effect qualifier contained therein), on and as of the Company set forth in Article 2 date hereof and on and as of the Closing Date as if made at and as of the Closing Date (except for any representations and warranties made as of a specified date, which shall be true and correct as of the Closing Date with the same force and effect as though made again at and as of the Closing Datespecified date), except for any where the failure of such representations and warranties that address matters only as of a particular date specifically set forth in such representation, other than the date hereof, (which shall remain to be true and correct as of such date). (c) The Company shall have performed and complied (x) in all respects with its covenants under Sections 4.1(ii) and 4.1(iii) and (y) in all material respectswould not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided, however, that the representations set forth in Section 4.3(Capitalization), Section 4.5(Compliance), Section 4.6(SEC Documents), Section 4.7(Absence of Certain Changes), 4.10(Taxes), 4.12(Proxy Statement; Form S-4 Registration Statement; Other Information) and 4.13 (without giving duplicative effect to any materiality qualification contained Authorization for Parent Common Stock) need only be true and correct for purposes of satisfying the condition set forth in the applicable obligationthis Section 7.2(a) if Parent has made and not revoked a Stock Election. (b) Parent shall have performed or complied in all material respects with all other covenants and agreements contained in obligations required by this Agreement required to be performed or complied with by it on at or before prior to the Closing Date. (c) There shall not be instituted, pending or threatened any Action by a Governmental Entity as a result of this Agreement or any of the transactions contemplated herein which would reasonably be expected (i) to result in a claim, action, suit, proceeding or investigation, whether civil, criminal or administrative, against a director, officer or employee of the Company or (ii) if Parent has made a Stock Election, to have a Parent Material Adverse Effect (assuming for purposes of this Section 7.2(c) that the Merger shall have occurred); (d) Since The Company shall have received a certificate executed on behalf of Parent by the Chief Executive Officer or Chief Financial Officer of Parent to the effect set forth in clauses (a) and (b) of this Section 7.2. (e) if Parent has made a Stock Election, the Company shall have received an opinion of counsel, based upon customary representations including those contained in this Agreement or in certificates of officers of the Parties and others, dated as of the Closing Date, to the effect that, commencing with its inception Parent was organized in conformity with the requirements for qualification and taxation as a REIT under the Code, and its method of operation has enabled it to meet, and Parent has met, through the Closing Date, the requirements for qualification and taxation as a REIT under the Code and Parent's proposed method of operation will enable it to continue to meet the requirements for qualification and taxation as a REIT under the Code; provided that, if this condition cannot be satisfied before the Termination Date and Parent has made a Stock Election, such Stock Election shall be deemed to have been revoked and only Cash Consideration shall be paid in the Merger. Section 7.3 Conditions to Obligations of Parent, Merger Sub, CTOP Merger Sub and Pinecreek Merger Sub to Effect the Merger. The obligations of Parent, Merger Sub, CTOP Merger Sub and Pinecreek Merger Sub to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions: (a) The representations and warranties of the Company, CTOP and Pinecreek OP contained in (i) Section 3.2(Authorization; Validity and Effect of Agreement); Section 3.3(Capitalization), Section 3.12(f) (Severance), Section 3.17(Opinion of Financial Advisor), Section 3.18(Brokers), Section 3.19(Vote Required), Section 3.21(Takeover Provisions Inapplicable) and Section 3.22(Affiliate Transactions) of this Agreement shall be true and correct in all material respects on and as of the date hereof and on and as of Closing Date as if made at and as of the Closing Date (except for any representations and warranties made as of a specified date, which shall be true and correct in all material respects as of the specified date) and (ii) in all other sections of Article III of this AgreementAgreement shall be true and correct (without regard to any materiality or Company Material Adverse Effect qualifier contained therein), there on and as of the date hereof and on and as of the Closing Date as if made at and as of the Closing Date (except for any representations and warranties made as of a specified date, which shall be true and correct as of the specified date), except where the failure of such representations and warranties to be true and correct would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. (b) The Company shall have performed or complied in all material respects with all obligations required by this Agreement to be performed or complied with by them at or prior to the Closing Date. (c) Parent shall have received a certificate executed on behalf of the Company by the Chief Executive Officer or Chief Financial Officer of the Company to the effect set forth in clauses (a) and (b) of this Section 7.3. (d) There shall not have been be instituted, pending or threatened any Action by a Governmental Entity as a result of this Agreement or any of the occurrence of any event or condition, or series of events or conditions, that has had or transactions contemplated herein which would reasonably be expected to have a Company Material Adverse EffectEffect or a Parent Material Adverse Effect (assuming for purposes of this Section 7.3(d) that the Merger shall have occurred). (e) Parent shall have received the opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ in the form attached as Exhibit A (based upon customary representations including those contained in this Agreement or in certificates of officers of the Parties and others), dated as of the Closing Date.

Conditions of Merger. 5.1 40 SECTION VI.1 Conditions to the Obligations Obligation of Each Party to Effect the Merger. The respective obligations of each party to effect the Merger shall be subject to the fulfillment satisfaction (or, to the extent permitted by applicable law, waiver) at or prior to the Effective Time of each Closing Date of the following conditions: (a) This Agreement and the Merger shall have been approved and adopted by the affirmative vote of the holders of a majority of the outstanding shares held by the stockholders of the Company, as required under the laws of the State of DelawareCompany Common Stock. (b) No statute, rule, regulation, executive order, decree, ruling, injunction or other order (whether temporary, preliminary or permanent) shall have been enacted, entered, promulgated or enforced by any court or governmental authority of competent jurisdiction which prohibits, restrains, enjoins or restricts the consummation of the Merger; provided, however, that the parties shall use their reasonable best efforts to cause any such decree, ruling, injunction or other order to be vacated or lifted. (c) Any waiting period (and any extension thereof) applicable to the consummation of the Merger under the HSR Act and any applicable foreign antitrust or competition laws shall have expired terminated or be exterminated. (c) No temporary restraining order, preliminary or permanent injunction, judgment or other order, decree or ruling nor any statute, rule, regulation , SEC stop order or other order shall be in effect which would make the acquisition or holding by Parent or its Affiliates of Shares or shares of Common Stock of the Surviving Corporation illegal or otherwise prevent the consummation of the Merger. 5.2 Conditions Precedent to Parent's and Purchaser's Obligations. In addition to the conditions set forth in Section 5.1, the Parent and Purchaser shall be obligated to perform the acts contemplated for performance by them under Article I only if each of the following conditions is satisfied at or prior to the Closing Date, unless any such condition is waived in writing by Parent and Purchaser: (a) The receipt of cash proceeds of the Financing under the terms and in the amounts set forth pursuant to the terms of the Commitments ("Financing Condition"). (b) The representations and warranties of the Company set forth in Article 2 shall be true and correct as of the Closing Date with the same force and effect as though made again at and as of the Closing Date, except for any representations and warranties that address matters only as of a particular date specifically set forth in such representation, other than the date hereof, (which shall remain true and correct as of such date). (c) The Company shall have performed and complied (x) in all respects with its covenants under Sections 4.1(ii) and 4.1(iii) and (y) in all material respects, individually or in the aggregate, (without giving duplicative effect to any materiality qualification contained in the applicable obligation) with all other covenants and agreements contained in this Agreement required to be performed or complied with by it on or before the Closing Dateexpired. (d) Since The Form S-4 and any required post-effective amendment thereto shall have become effective under the date of this Agreement, there Securities Act and shall not be the subject of any stop order or proceedings seeking a stop order, and any material "blue sky" and other state securities laws applicable to the registration of the Parent Common Stock to be exchanged for Company Common Stock in the Merger shall have been complied with. (e) The shares of Parent Common Stock issuable to the occurrence holders of any event or conditionCompany Common Stock pursuant to this Agreement shall have been approved for listing on the NYSE, or series subject to official notice of events or conditions, that has had or would reasonably be expected to have a Material Adverse Effectissuance.

Conditions of Merger. 5.1 Section 7.1 Conditions to the Obligations Obligation of Each each Party to Effect the Merger. The respective obligations of each party Party to effect the Merger shall be subject to the satisfaction at or prior to the Closing Date of the following conditions: (a) this Agreement and the Merger shall have been approved by the stockholders of the Company in the manner required under the DGCL and the certificate of incorporation of the Company; (b) this Agreement and the Merger shall have been approved by the stockholders of HCPI in the manner required under the MGCL and the charter of HCPI. (c) no statute, rule, regulation, executive order, decree, ruling, injunction or other order (whether temporary, preliminary or permanent) shall have been enacted, entered, promulgated or enforced by any Governmental Entity of competent jurisdiction and no other legal restraint or prohibition shall be in effect which prohibits, restrains, enjoins or restricts the consummation of the Merger; provided, however, that the Parties shall use their reasonable best efforts to cause any such decree, ruling, injunction or other order to be vacated or lifted; (d) the Registration Statement shall have become effective under the Securities Act and shall not be the subject of any stop order suspending the effectiveness of the Registration Statement nor shall proceedings for that purpose have been threatened, and any material Blue Sky Law permits and approvals applicable to the registration of the HCPI Common Stock to be exchanged for Company Stock shall have been obtained; (e) all filings required to be made prior to the Closing by any Party or any of its respective Subsidiaries with, and all consents, approvals and authorizations required to be obtained prior to the Closing by any Party or any of its respective Subsidiaries from, any Governmental Entity in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby shall have been made or obtained, except where the failure to obtain such consents would not cause a Company Material Adverse Effect or a HCPI Material Adverse Effect and could not reasonably be expected to subject the Parties or their Affiliates or any directors, trustees, officers, agents or advisors of any of the foregoing to the risk of criminal liability; (f) all consents or approvals of all Persons (other than Governmental Entities) required for, in connection with, or as a result of the execution, delivery and performance of this Agreement or the consummation of the transactions contemplated hereby shall have been obtained and shall be in full force and effect, except for those the failure of which to obtain would not cause a Company Material Adverse Effect or a HCPI Material Adverse Effect; and (g) the shares of HCPI Common Stock issuable to the holders of Company Stock pursuant to this Agreement shall have been approved for listing on the NYSE upon official notice of issuance. Section 7.2 Conditions to Obligations of the Company to Effect the Merger. The obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of each Closing Date of the following additional conditions: (a) This Each representation and warranty of HCPI contained in this Agreement that is qualified by materiality shall be true and correct at and as of the Effective Time as if made at and as of the Effective Time and each representation and warranty of HCPI that is not so qualified shall be true and correct in all material respects at and as of the Effective Time as if made as of the Effective Time, in each case, except (i) as contemplated or permitted by this Agreement and (ii) to the Merger extent that any such representation or warranty shall have been approved expressly made as of an earlier date, in which case such representation and adopted by the affirmative vote of a majority of shares held by the stockholders of the Companywarranty shall have been true and correct, or true and correct in all material respects, as required under the laws case may be, as of the State of Delaware.such earlier date; (b) Any waiting period (and any extension thereof) applicable to the consummation of the Merger under the HSR Act HCPI shall have expired performed or complied in all material respects with all obligations required by this Agreement to be exterminated. (c) No temporary restraining order, preliminary performed or permanent injunction, judgment or other order, decree or ruling nor any statute, rule, regulation , SEC stop order or other order shall be in effect which would make the acquisition or holding complied with by Parent or its Affiliates of Shares or shares of Common Stock of the Surviving Corporation illegal or otherwise prevent the consummation of the Merger. 5.2 Conditions Precedent to Parent's and Purchaser's Obligations. In addition to the conditions set forth in Section 5.1, the Parent and Purchaser shall be obligated to perform the acts contemplated for performance by them under Article I only if each of the following conditions is satisfied it at or prior to the Closing Date, unless any such condition is waived in writing by Parent and Purchaser: (a) The receipt of cash proceeds of the Financing under the terms and in the amounts set forth pursuant to the terms of the Commitments ("Financing Condition"). (b) The representations and warranties of the Company set forth in Article 2 shall be true and correct as of the Closing Date with the same force and effect as though made again at and as of the Closing Date, except for any representations and warranties that address matters only as of a particular date specifically set forth in such representation, other than the date hereof, (which shall remain true and correct as of such date).; (c) The Company shall have performed and complied received a certificate executed on behalf of HCPI by the Chief Executive Officer or Chief Financial Officer of HCPI to the effect set forth in clauses (x) in all respects with its covenants under Sections 4.1(ii) and 4.1(iiia) and (yb) of this Section 7.2; (d) The Company shall have received an opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, dated as of the Closing Date, in form and substance reasonably satisfactory to the Company, substantially to the effect that, on the basis of facts, representations and assumptions set forth in such opinion that are consistent with the state of facts existing as of such time, for federal income tax purposes, (i) the Merger will constitute a "reorganization" within the meaning of Section 368(a) of the Code, and (ii) Company and HCPI will each be a party to that reorganization within the meaning of Section 368(b) of the Code. In rendering such opinion, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ may receive and rely upon representations including those contained in this Agreement or in certificates of officers of the Parties and others; (e) The Company shall have received the opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ in the form attached as Exhibit C hereto (based upon customary representations including those contained in this Agreement or in certificates of officers of the Parties and others), dated the Closing Date, to the effect that, (i) commencing with its taxable year ended December 31, 1985, HCPI was organized in conformity with the requirements for qualification and taxation as a REIT under the Code, and (ii) its method of operation has enabled it and its proposed method of operation will enable it to continue to meet the requirements for qualification and taxation as a REIT under the Code; and (f) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP shall have delivered to the Company the letter described in clause (a) of Section 6.14 at the time provided in clause (a) of Section 6.14. Section 7.3 Conditions to Obligations of HCPI to Effect the Merger. The obligations of HCPI to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions: (a) Each representation and warranty of the Company contained in this Agreement that is qualified by materiality shall be true and correct at and as of the Effective Time as if made at and as of the Effective Time and each representation and warranty of the Company that is not so qualified shall be true and correct in all material respects at and as of the Effective Time as if made as of the Effective Time, in each case, except (i) as contemplated or permitted by this Agreement and (ii) to the extent that any such representation or warranty shall have been expressly made as of an earlier date, in which case such representation and warranty shall have been true and correct, or true and correct in all material respects, individually as the case may be, as of such earlier date; (b) The Company shall have performed or complied in the aggregate, (without giving duplicative effect to any materiality qualification contained in the applicable obligation) all material respects with all other covenants and agreements contained in obligations required by this Agreement required to be performed or complied with by it on at or before prior to the Closing Date.; (c) HCPI shall have received a certificate executed on behalf of the Company by the Chief Executive Officer or Chief Financial Officer of the Company to the effect set forth in clauses (a) and (b) of this Section 7.3; (d) Since HCPI shall have received an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, dated as of the date Closing Date, in form and substance reasonably satisfactory to HCPI, substantially to the effect that, on the basis of facts, representations and assumptions set forth in such opinion that are consistent with the state of facts existing as of such time, for federal income tax purposes, (i) the Merger will constitute a "reorganization" within the meaning of Section 368(a) of the Code, and (ii) Company and HCPI will each be a party to that reorganization within the meaning of Section 368(b) of the Code. In rendering such opinion, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ may receive and rely upon representations including those contained in this AgreementAgreement or in certificates of officers of the Parties or others; (e) HCPI shall have received the opinion of ▇▇▇▇▇, there ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and the opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ in the forms attached hereto as Exhibit D and Exhibit E, respectively (based upon customary representations including those contained in this Agreement or in certificates of officers of the Parties and others), dated the Closing Date, that, taken together, are to the effect that, commencing with its taxable year ended December 31, 1987, the Company was organized in conformity with the requirements for qualification and taxation as a REIT under the Code, and its method of operation has enabled it to meet, through the Effective Time, the requirements for qualification and taxation as a REIT under the Code; (f) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP shall not have been delivered to HCPI the occurrence letters described in clause (a) of any event or conditionSection 6.13, or series at the time provided in clause (a) of events or conditions, that has had or would reasonably be expected to have a Material Adverse Effect.Section 6.13

Conditions of Merger. 5.1 Conditions The Merger is conditioned on the following: 1. That the parties to this Plan of Merger have not suffered an uninsured loss on account of fire, flood, accident, or other calamity of such a character as to interfere materially with the continuous operation of their businesses or materially affect adversely their condition, financial or otherwise, regardless of whether or not such loss shall have been insured. 2. That no material transactions shall have been entered into by the parties to this Plan of Merger other than transactions in the ordinary course of business between the date of their last financial statements and the Effective Time, other than as referred to in certain documents. 3. Except as disclosed to the Obligations other parties, that no material adverse change in the aggregate shall have occurred in the financial condition of Each Party the parties to Effect this Plan of Merger since the Mergerdate of their last financial statements. 4. The That none of the properties or assets of the parties shall have been sold or otherwise disposed of other than in the ordinary course of business during such period, except with the written consent of the other parties. 5. That the parties shall have performed and complied with the provisions and conditions of this Agreement on their respective obligations of each party part to effect the Merger shall be subject to the fulfillment at or performed and complied with prior to the Effective Time of each Time, and that certain representations and warranties made by the parties are true and correct in all material respects, both when made and as of the following conditions:Effective Time. (a) This Agreement and the 6. That this Plan of Merger shall have been approved and adopted by the affirmative vote of a majority of shares held by the stockholders appropriate corporate action of the Company, as required under the laws parties to this Plan of the State of Delaware. (b) Any waiting period (Merger and any extension thereof) applicable that corporate votes and resolutions to that effect have been delivered by each party to the consummation of the Merger under the HSR Act shall have expired or be exterminated. (c) No temporary restraining order, preliminary or permanent injunction, judgment or other order, decree or ruling nor any statute, rule, regulation , SEC stop order or other order shall be in effect which would make the acquisition or holding by Parent or its Affiliates of Shares or shares of Common Stock of the Surviving Corporation illegal or otherwise prevent the consummation of the Merger. 5.2 Conditions Precedent to Parent's and Purchaser's Obligations. In addition to the conditions set forth in Section 5.1, the Parent and Purchaser shall be obligated to perform the acts contemplated for performance by them under Article I only if each of the following conditions is satisfied at or others prior to the Closing Date, unless any such condition is waived in writing by Parent and Purchaser: (a) The receipt of cash proceeds of the Financing under the terms and in the amounts set forth pursuant to the terms of the Commitments ("Financing Condition"). (b) The representations and warranties of the Company set forth in Article 2 shall be true and correct as of the Closing Date with the same force and effect as though made again at and as of the Closing Date, except for any representations and warranties that address matters only as of a particular date specifically set forth in such representation, other than the date hereof, (which shall remain true and correct as of such date). (c) The Company shall have performed and complied (x) in all respects with its covenants under Sections 4.1(ii) and 4.1(iii) and (y) in all material respects, individually or in the aggregate, (without giving duplicative effect to any materiality qualification contained in the applicable obligation) with all other covenants and agreements contained in this Agreement required to be performed or complied with by it on or before the Closing Date. (d) Since the date of this Agreement, Plan of Merger. 7. That there shall not have been full compliance with the occurrence applicable securities or "blue sky" laws and regulations of any event state or conditionother governmental body having jurisdiction over the Merger, which have not been preempted by Federal law or series with respect to which a claim of events or conditions, that has had or would preemption could reasonably be expected made. 8. That the parties hereto shall have received certain opinions of counsel satisfactory to such parties in form and substance. 9. That the Parent Corporation shall have held a Material Adverse Effectmeeting of its Board of Directors at which meeting all of its directors shall have resigned seriatim and the persons designated by the Surviving Corporation shall have been elected as directors of the Parent Corporation, and that the Parent Corporation shall have provided the Surviving Corporation with a certified copy of the actions taken at such meeting.

Conditions of Merger. 5.1 Conditions to the Obligations of Each Party to Effect the Merger. The ---------------------------------------------------------------- respective obligations of each party to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of each of the following conditions: (a) This Agreement and the Merger shall have been approved and adopted by the affirmative requisite vote of a majority of shares held by the stockholders of the Company, as required under the laws of the State of Delaware. (b) Any waiting period (and any extension thereof) applicable to the consummation of the Merger under the HSR Act shall have expired or be exterminatedbeen terminated. (c) No temporary restraining order, preliminary or permanent injunction, judgment or other order, decree or ruling nor any statute, rule, regulation , SEC stop order or other order shall be in effect which would make the acquisition or holding by Parent or its Affiliates of Shares or shares of Common Stock of the Surviving Corporation illegal or otherwise prevent the consummation of the Merger. 5.2 Conditions Precedent to Parent's and Purchaser's Obligations. In addition to the conditions set forth in Section 5.1, the Parent ------------------------------------------------------------ and Purchaser shall be obligated to perform the acts contemplated for performance by them under Article I only if each of the following conditions is satisfied at or prior to the Closing Date, unless any such condition is waived in writing by Parent and Purchaser: (a) The receipt of cash proceeds of the Financing under the terms and in the amounts set forth pursuant to the terms of the Commitments ("Financing Condition"). (b) The representations and warranties of the Company set forth in Article 2 (other than Section 2.3(a)) shall be true and correct in all material respects (without giving duplicative effect to any materiality qualification contained in the applicable representation or warranty) as of the Closing Date with the same force and effect as though made again at and as of the Closing Date, except for any representations and warranties that address matters only as of a particular date specifically set forth in such representation, other than the date hereof, (which shall remain true and correct in all material respects (without giving duplicative effect to any materiality qualification contained in the applicable representation or warranty) as of such date). (b) The representations and warranties of the Company set forth in Section 2.3(a) shall be true and correct in all respects as of the Closing Date with the same force and effect as though made again at and as of the Closing Date, except for any representations and warranties that address matters only as of a particular date (which shall remain true and correct in all respects as of such date). (c) The Company shall have performed and complied (xi) in all respects with its covenants under Sections 4.1(ii4.1(a)(ii) and 4.1(iii4.1(a)(iii) and (yii) in all material respects, individually or in the aggregate, respects (without giving duplicative effect to any materiality qualification contained in the applicable obligation) with all other covenants and agreements contained in this Agreement required to be performed or complied with by it on or before the Closing Date. (d) Since the date of this Agreement, there shall not have been the occurrence of any event or condition, or series of events or conditions, condition that has had or would reasonably be expected to have a Material Adverse EffectEffect other than changes relating to or arising out of the economy in general or the industries of the Company and its Subsidiaries in general and not specifically relating to the Company or any of its Subsidiaries. (e) The Company shall have executed and delivered to Purchaser and Parent at and as of the Closing a certificate, duly executed by the Company's President and Chief Financial Officer, in form and substance reasonably satisfactory to Parent and Parent's counsel, certifying that to such officers' knowledge, the conditions specified in (a), (b), (c) and (d) have been satisfied. (f) The Company and the Purchaser shall have obtained the Pre-Closing License Approvals referred to in Section 4.14. (g) There shall not have occurred a Special Regulatory Event. (h) The Company shall have obtained the third party consents listed in Section 5.2(h) of the Company Disclosure Letter. (i) The Company shall have resolved certain outstanding regulatory issues as provided in Section 5.2(i) of the Company Disclosure Letter.

Conditions of Merger. 5.1 6.1 Conditions to for the Obligations Benefit of Each Party to Effect the MergerCompany, Adherex and Adherex US. The respective obligations of each party of the Company, Adherex and Adherex US to effect the Merger shall be subject to the fulfillment satisfaction at or prior to the Effective Time of each of the following conditions: (a) This Agreement and the Merger and this Agreement, with or without amendment, shall have been approved and adopted by the affirmative vote Stockholders in accordance with the provisions of a majority of shares held Delaware Law, and the Merger shall have been approved by the stockholders Shareholders at the Adherex Meeting by the Shareholders in accordance with the provisions of all applicable laws, the CompanyCertificate of Incorporation, as required under the laws By-Laws, the Constating Documents and the requirements of the State of Delaware.any applicable regulatory authorities; (b) Any waiting period the TSX shall have approved the terms of the Merger and shall have conditionally approved the listing thereon of each of the Merger Shares and the Warrant Shares, subject to compliance with the usual requirements of the TSX; (c) each of the persons who will be officers and directors of Adherex following the Effective Time and each other person who will hold, directly or indirectly, more than 5% of the Common Shares following the Effective Time and each affiliate of any extension such person (each such officer, director, shareholder and affiliate thereof, a “Restricted Party”) applicable to shall enter into an agreement with Adherex substantially in the form attached at Exhibit “G” hereto (each, a “Lock-up Agreement”); (d) all other consents, orders, regulations and approvals, including regulatory and judicial approvals and orders required or necessary or desirable for the completion of the transactions provided for in this Agreement and the Merger shall have been obtained or received from the persons, authorities or bodies having jurisdiction in the circumstances; (e) there shall not be in force any order or decree of a court of competent jurisdiction, any federal, provincial, municipal or other governmental department or any commission, board, agency or regulatory body restraining, interfering with or enjoining the consummation of the Merger under the HSR Act shall have expired or be exterminated. (c) No temporary restraining order, preliminary or permanent injunction, judgment or other order, decree or ruling nor any statute, rule, regulation , SEC stop order or other order shall be in effect which would make the acquisition or holding transactions contemplated by Parent or its Affiliates of Shares or shares of Common Stock of the Surviving Corporation illegal or otherwise prevent the consummation of the Merger. 5.2 Conditions Precedent to Parent's and Purchaser's Obligations. In addition to the conditions set forth in Section 5.1, the Parent and Purchaser shall be obligated to perform the acts contemplated for performance by them under Article I only if each of the following conditions is satisfied at or prior to the Closing Date, unless any such condition is waived in writing by Parent and Purchaser: (a) The receipt of cash proceeds of the Financing under the terms and in the amounts set forth pursuant to the terms of the Commitments ("Financing Condition"). (b) The representations and warranties of the Company set forth in Article 2 shall be true and correct as of the Closing Date with the same force and effect as though made again at and as of the Closing Date, except for any representations and warranties that address matters only as of a particular date specifically set forth in such representation, other than the date hereof, (which shall remain true and correct as of such date). (c) The Company shall have performed and complied (x) in all respects with its covenants under Sections 4.1(ii) and 4.1(iii) and (y) in all material respects, individually or in the aggregate, (without giving duplicative effect to any materiality qualification contained in the applicable obligation) with all other covenants and agreements contained in this Agreement required to be performed or complied with by it on or before the Closing Date. (d) Since the date of this Agreement, there including, without limitation, the Merger; and (f) none of the consents, orders, regulations or approvals contemplated herein shall not have been contain terms or conditions or require undertakings or security deemed unsatisfactory or unacceptable by either of Adherex or the occurrence of any event or conditionCompany, or series of events or conditions, that has had or would reasonably be expected to have a Material Adverse Effectacting reasonably.