Common use of CONDITIONS TO CONSUMMATION OF THE Clause in Contracts

CONDITIONS TO CONSUMMATION OF THE. EXCHANGE Section 7.1 Conditions to Obligations of BANYAN and BANYAN Owners. The obligations of BANYAN and BANYAN Owners to consummate the Exchange shall be subject to the fulfillment, or written waiver by BANYAN, at or prior to the Closing, of each of the following conditions: (a) DGHG shall have delivered to BANYAN each of the documents required by Section 2.2(a) of this Agreement; (b) The representations and warranties of DGHG set out in this Agreement shall be true and correct in all material respects at and as of the time of the Closing as though such representations and warranties were made at and as of such time; (c) DGHG shall have performed and complied in all material respects with all covenants, conditions, obligations and agreements required by this Agreement to be performed or complied with by such parties on or prior to the Closing Date; (d) All consents, approvals, permits, authorizations and orders required to be obtained from, and all registrations, filings and notices required to be made with or given to, any Governmental Authority or Person as provided herein shall have been obtained; (e) BANYAN shall have completed a due diligence review of the business, operations, financial condition and prospects of DGHG and shall have been satisfied with the results of its due diligence review in its sole and absolute discretion; (f) There has been no Material Adverse Effect on the business, condition or prospects of DGHG until the Closing Date; (g) DGHG shall file if applicable with the SEC a Schedule 14(f)-l with respect to any change of control transactions described in this Agreement, and shall have caused the Schedule 14(f)01 to be mailed to each registered holder of its Common Stock; (h) Holders of all of the BANYAN Interests shall have become party to the Exchange; and (i) The outstanding shares of Common Stock of DGHG prior to the Closing shall not exceed 100,000,000 shares. Section 7.2

CONDITIONS TO CONSUMMATION OF THE. EXCHANGE MERGER Section 7.1 5.1. Conditions to Each Party's Obligations of BANYAN and BANYAN Ownersto Effect the Merger. The respective obligations of BANYAN and BANYAN Owners each party hereto to consummate effect the Exchange shall be Merger are subject to the fulfillment, or written waiver by BANYAN, satisfaction at or prior to the Closing, of each Effective Time of the following conditions: (a) DGHG this Agreement shall have delivered to BANYAN each been approved and adopted by the requisite vote of the documents required by Section 2.2(a) stockholders of this Agreementthe Company; (b) no statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or enforced by any United States federal or state court or United States federal or state Governmental Entity that prohibits, restrains, enjoins or restricts the consummation of the Merger; (c) any waiting period applicable to the Merger under the HSR Act shall have terminated or expired; (d) any governmental or regulatory notices, approvals or other requirements necessary to consummate the transactions contemplated hereby and to operate the Business after the Effective Time in all material respects as it was operated prior thereto (other than under the HSR Act) shall have been given, obtained or complied with, as applicable; and (e) the S-4 shall have become effective under the Securities Act and shall not be the subject of any stop order or proceedings seeking a stop order, and Parent shall have received all state securities laws or 32 38 "blue sky" permits and authorizations necessary to issue shares of Parent Common Stock in exchange for Shares in the Merger. Section 5.2. Conditions to the Obligations of the Company. The obligation of the Company to effect the Merger is subject to the satisfaction at or prior to the Effective Time of the following conditions: (a) the representations and warranties of DGHG set out Parent and Acquisition contained in this Agreement shall be true and correct (except to the extent that the aggregate of all breaches thereof would not have a Material Adverse Effect on Parent) at and as of the Effective Time with the same effect as if made at and as of the Effective Time (except to the extent such representations specifically relate to an earlier date, in which case such representations shall be true and correct as of such earlier date, and in any event, subject to the foregoing Material Adverse Effect qualification) and, at the Closing, Parent and Acquisition shall have delivered to the Company a certificate to that effect, executed by two (2) executive officers of Parent and Acquisition; (b) each of the covenants and obligations of Parent and Acquisition to be performed at or before the Effective Time pursuant to the terms of this Agreement shall have been duly performed in all material respects at or before the Effective Time and, at the Closing, Parent and Acquisition shall have delivered to the Company a certificate to that effect, executed by two (2) executive officers of Parent and Acquisition; (c) the shares of Parent Common Stock issuable to the Company's stockholders pursuant to this Agreement and such other shares required to be reserved for issuance in connection with the Merger shall have been approved for quotation on the Nasdaq National Market, upon official notice of issuance; (d) the Company shall have received the opinion of tax counsel to the Company or tax counsel to Parent to the effect that (i) the Merger will be treated for Federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code and (ii) each of Parent, Acquisition and the Company will be a party to the reorganization within the meaning of Section 368(b) of the Code, which opinion may rely on the representations set forth in Exhibits B-1 and B-2 and such other representations as such counsel reasonably deems appropriate and such opinion shall not have been withdrawn or modified in any material respect; and (e) the Company shall have received the opinion of legal counsel to Parent and Acquisition as to the matters set forth in Exhibit D. Section 5.3. Conditions to the Obligations of Parent and Acquisition. The respective obligations of Parent and Acquisition to effect the Merger are subject to the satisfaction at or prior to the Effective Time of the following conditions: (a) the representations and warranties of the Company contained in this Agreement (other than those contained in Section 2.24) shall be true and correct (except to the extent that the aggregate of all breaches thereof would not have a Material Adverse Effect on the Company) at and as of the Effective Time with the same effect as if made at and as of the Effective Time (except to the extent such representations specifically relate to an earlier date, in which case such representations shall be true and correct as of such earlier date, and in any event, subject to the foregoing Material Adverse Effect qualification) and the representations and warranties of the Company contained in Section 2.24 shall be true and correct in all respects at and as of the time Effective Time, and, at the Closing, the Company shall have delivered to Parent and Acquisition a certificate to that effect, executed by two (2) executive officers of the Closing as though such representations Company; (b) each of the covenants and warranties were made obligations of the Company to be performed at or before the Effective Time pursuant to the terms of this Agreement shall have been duly performed in all material respects at or before the Effective Time and, at the Closing, the Company shall have delivered to Parent and as Acquisition a certificate to that effect, executed by two (2) executive officers of such timethe Company; (c) DGHG Parent shall have performed received from each affiliate of the Company referred to in Sections 2.21 and complied in all material respects with all covenants, conditions, obligations and agreements required by this Agreement to be performed or complied with by such parties on or prior to 4.12(a) an executed copy of the Closing Dateletter attached hereto as Exhibit A; 33 39 (d) All consents, approvals, permits, authorizations and orders required to be obtained from, and all registrations, filings and notices required to be made with or given to, any Governmental Authority or Person as provided herein there shall have been obtained; (e) BANYAN shall have completed no events, changes or effects, individually or in the aggregate, with respect to the Company or its subsidiaries having, or that would reasonably be expected to have, a due diligence review of the business, operations, financial condition and prospects of DGHG and shall have been satisfied with the results of its due diligence review in its sole and absolute discretion; (f) There has been no Material Adverse Effect on the business, condition or prospects of DGHG until the Closing DateCompany; (ge) DGHG shall file if applicable with the SEC a Schedule 14(f)-l with respect to any change of control transactions described in this Agreement, and Parent shall have caused received the Schedule 14(f)01 opinion of tax counsel to Parent or tax counsel to the Company to the effect that (i) the Merger will be mailed to each registered holder treated for Federal income tax purposes as a reorganization within the meaning of its Common Stock; (hSection 368(a) Holders of all of the BANYAN Interests shall have become Code and (ii) each of Parent, Acquisition and the Company will be a party to the Exchangereorganization within the meaning of Section 368(b) of the Code, which opinion may rely on the representations set forth in Exhibits B-1 and B-2 and such other representations as such counsel reasonably deems appropriate, and such opinion shall not have been withdrawn or modified in any material respect; and (if) The outstanding shares Parent shall have received the opinion of Common Stock of DGHG prior legal counsel to the Closing shall not exceed 100,000,000 shares. Section 7.2Company as to the matters set forth in Exhibit C. ARTICLE 6

CONDITIONS TO CONSUMMATION OF THE. EXCHANGE MERGER Section 7.1 8.1 Conditions to Obligations of BANYAN and BANYAN OwnersEach Party's Obligation to Effect the Merger. The respective obligations of BANYAN and BANYAN Owners each Party to consummate effect the Exchange Merger shall be subject to the fulfillment, or written waiver by BANYAN, satisfaction at or prior to the Closing, of each Effective Time of the following conditions: (a) DGHG Any waiting period applicable to the consummation of the Merger under the HSR Act shall have delivered expired or been terminated, and no action shall have been instituted by the Department of Justice or Federal Trade Commission challenging or seeking to BANYAN each of enjoin the documents required by Section 2.2(a) consummation of this Agreement; transaction, which action shall have not been withdrawn or terminated. (b) The representations Registration Statement shall have become effective in accordance with the provisions of the Securities Act, and warranties no stop order suspending the effectiveness of DGHG set out in this Agreement the Registration Statement shall be true in effect and correct no proceeding for such purpose shall be pending before or threatened by the SEC. (c) This Agreement and the Merger shall have been authorized, approved and adopted by the requisite vote of the stockholders of HCI and the shareholders of Rent-Way, and the Amendment and the issuance of the Rent-Way Shares in all connection with the Merger shall have been authorized and approved by the requisite vote of the shareholders of Rent-Way, in each case in accordance with Applicable Law. (d) No temporary restraining order, preliminary or permanent injunction or other order by any federal or state court in the United States which prohibits the consummation of the Merger shall have been issued and remain in effect. 27 29 (e) Subject to Section 7.12(b), each of HCI and Rent-Way shall have obtained such consents from third parties and Governmental Authorities in addition to the HSR Act as shall be required and which are material respects at to Rent-Way and HCI and to consummation of the transactions contemplated hereby. (f) Each of Rent-Way and HCI shall have received a letter from PricewaterhouseCoopers, LLP dated the Effective Time, addressed to Rent-Way and HCI stating that the Merger will qualify as a pooling of interests transaction under Opinion No. 16 of the Accounting Principles Board and that Rent-Way and HCI meet the conditions to qualify for a pooling of interests transaction under opinion No. 16 of the Accounting Principles Board, "Business Combinations," and the related published interpretations of the American Institute of Certified Public Accountants and the Financial Accounting Standards Board, and the published rules and regulations of the SEC. (g) Each of Rent-Way and HCI shall have received an opinion of Hodgxxx, Xxxx, Xxdrxxx, Xxodx & Xoodyear, LLP, in form and substance reasonably satisfactory to Rent-Way and HCI, dated the date of the Proxy Statement, which opinion shall be reconfirmed as of the time Effective Time, substantially to the effect that the Merger will constitute a reorganization for federal income tax purposes within the meaning of section 368(a)(1)(A) of the Closing as though such representations and warranties were made at and as of such time; (c) DGHG shall have performed and complied in all material respects with all covenants, conditions, obligations and agreements required by this Agreement to be performed or complied with by such parties on or prior to the Closing Date; (d) All consents, approvals, permits, authorizations and orders required to be obtained from, and all registrations, filings and notices required to be made with or given to, any Governmental Authority or Person as provided herein shall have been obtained; (e) BANYAN shall have completed a due diligence review of the business, operations, financial condition and prospects of DGHG and shall have been satisfied with the results of its due diligence review in its sole and absolute discretion; (f) There has been no Material Adverse Effect on the business, condition or prospects of DGHG until the Closing Date; (g) DGHG shall file if applicable with the SEC a Schedule 14(f)-l with respect to any change of control transactions described in this Agreement, and shall have caused the Schedule 14(f)01 to be mailed to each registered holder of its Common Stock; (h) Holders of all of the BANYAN Interests shall have become party to the Exchange; and (i) The outstanding shares of Common Stock of DGHG prior to the Closing shall not exceed 100,000,000 sharesCode. Section 7.28.2

CONDITIONS TO CONSUMMATION OF THE. EXCHANGE Section 7.1 MERGER 9.1 Conditions to Obligations of BANYAN and BANYAN OwnersEach Party's Obligation to Effect the Merger. The respective obligations of BANYAN and BANYAN Owners each party to consummate the Exchange Merger and to take the other actions required to be taken by it at the Closing shall be subject to the fulfillment, or written waiver by BANYANsatisfaction, at or prior to the Closing, of each of the following conditions: conditions (any of which may be waived by both the Company and Verio, in whole or in part): (a) DGHG Any waiting period applicable to the consummation of the Merger under the HSR Act shall have delivered to BANYAN each of the documents required by Section 2.2(a) of this Agreement; expired or been terminated. (b) The Registration Statement shall have become effective in accordance with the provisions of the Securities Act, and shall be effective at the Effective Time, no stop order suspending effectiveness of the Registration Statement shall have been issued, and no action, suit, proceeding or investigation by the SEC to suspend the effectiveness thereof shall have been initiated and be continuing. (c) All necessary approvals under federal and state securities laws and other authorizations relating to the issuance or trading of the Verio Common Stock to be issued to Company shareholders in connection with the Merger shall have been received. (d) The shares of Verio Common Stock to be issued in the Merger shall have been approved for listing on the Nasdaq National Market. (e) This Agreement and the Transactions shall have been approved and adopted by the favorable vote of a majority of the shares of the outstanding capital stock of the Company entitled to vote thereon at a shareholders meeting at which a quorum is present in accordance with Legal Requirements. (f) No preliminary or permanent injunction or other order by any federal, state or foreign court of competent jurisdiction which prohibits the consummation of the Merger shall have been issued and remain in effect. No statute, rule, regulation, executive order, stay, decree, or judgment shall have been enacted, entered, issued, promulgated or enforced by any court or governmental authority which prohibits or restricts the consummation of the Merger. Other than the filing of the Agreement of Merger with the Secretary of State of California, all authorizations, consents, orders or approvals of, or declarations or filings with, and all expirations of waiting periods imposed by, any Governmental Body which are necessary for the consummation of the Merger, other than those the failure to obtain which would not materially adversely affect the consummation of the Merger or in the aggregate have a material adverse effect on the Surviving Corporation and its subsidiaries, taken as a whole, shall have been filed, occurred or been obtained (all such permits, approvals, filings and consents and the lapse of all such waiting periods being referred to as the "Requisite Regulatory Approvals") and all such Requisite Regulatory Approvals shall be in full force and effect. (g) There shall not be any action taken, or any statute, rule, regulation or order enacted, entered, enforced or deemed applicable to the Merger, by any federal or state Governmental Body which, in connection with the grant of a Requisite Regulatory Approval, imposes any condition or restriction upon the Surviving Corporation or its subsidiaries (or, in the case of any disposition of assets required in connection with such Requisite Regulatory Approval, upon Verio or its subsidiaries or the Company or its subsidiaries), including, without limitation, requirements relating to the disposition of assets, which in any such case would so materially adversely impact the economic or business benefits of the Transactions as to render inadvisable the consummation of the Merger. 9.2 Additional Conditions to Verio's and Merger Sub's Obligation to Consummate the Merger. Verio's and Merger Sub's obligations to consummate the Merger and to take the other actions required to be taken by Verio and Merger Sub at the Closing is subject to the satisfaction, at or prior to the Closing, of each of the following conditions (any of which may be waived by Verio, in whole or in part): (a) All of the representations and warranties made by the Company and each of DGHG set out the Shareholders in this Agreement and the other Transactional Agreements (considered collectively) shall be true and correct have been accurate in all material respects at and as of the time date of the Closing as though such representations this Agreement, and warranties were made at and as of such time; (c) DGHG shall have performed and complied be accurate in all material respects as of the 33 34 Closing Time (without giving effect to any Disclosure Schedule Update) (other than any such inaccuracies resulting from actions taken at the written request of or with the written consent of Verio). (b) The Company or the Shareholders, as the case may be, shall have executed and delivered each of the agreements, instruments and documents required to be executed and delivered, and performed all covenants, conditions, obligations and agreements actions required by the Company or any of the Shareholders, as the case may be, pursuant to Section 4.22 and Article 6, except as Verio has otherwise consented in writing. (c) Each of the members of the Company's management listed on Schedule 1 shall have executed and delivered to Verio a lock-up letter in the form of Exhibit E hereto. (d) Each of the employees of the Company specified on Schedule 2 shall have executed and delivered to Verio a Noncompetition and Nonsolicitation Agreement in the form of Exhibit F hereto, with such changes to Section 3 thereof as may be agreed between each such employee and Verio. (e) All of the other covenants and obligations that the Company or any Shareholder is required to comply with or to perform pursuant to this Agreement to be performed or complied with by such parties on any other Transactional Agreement at or prior to the Closing Date; (dconsidered collectively) All consentsshall have been duly complied with and performed in all material respects. (f) Each individual that has executed a Voting Agreement shall have entered into a Registration Rights Agreement with Verio. (g) Each of the Consents identified or required to have been identified in Section 4.20 of the Disclosure Schedule shall have been obtained and shall be in full force and effect, approvalsother than those Consents the absence of which shall not have a material adverse effect on the Company. (h) There shall not have been any material adverse change in the Company's business, permitscondition, authorizations and orders assets, liabilities, operations or financial performance since the date of this Agreement. (i) In addition to the documents required to be obtained fromreceived under this Section 9.2, and all registrationsVerio shall also have received the following documents: (i) the opinion letter from Fenwick & West LLP, filings and notices required counsel to be made with or given tothe Company, any Governmental Authority or Person as provided herein shall have been obtained; (e) BANYAN shall have completed a due diligence review of the business, operations, financial condition and prospects of DGHG and shall have been satisfied with the results of its due diligence review in its sole and absolute discretion; (f) There has been no Material Adverse Effect on the business, condition or prospects of DGHG until dated the Closing Date, in the form attached as Exhibit H; (gii) DGHG shall file if applicable with a certificate (the SEC a Schedule 14(f)-l with respect to "Company Closing Certificate"), dated the Closing Date, duly executed by the Company, (1) certifying that (A) each of the representations and warranties made by the Company or any change of control transactions described Shareholder in this Agreement, Agreement and shall have caused in the Schedule 14(f)01 to be mailed to each registered holder of its Common Stock; (h) Holders of other Transactional Agreements was accurate in all material respects as of the BANYAN Interests shall date of the applicable Agreement and is accurate in all material respects as of the Closing Date as if made on the Closing Date, (B) each of the covenants and obligations that the Company or any Shareholder is required to have become party complied with or performed pursuant to this Agreement or any of the Exchange; and (i) The outstanding shares of Common Stock of DGHG other Transactional Agreements at or prior to the Closing has been duly complied with and performed in all material respects, and (C) each of the conditions set forth in Section 9.2 has been satisfied in all respects, and (2) providing the information required by Section 6.12; (iii) duly executed Affiliate Agreements from each Affiliate of the Company; (iv) copies of resolutions of the Company, certified by a Secretary, Assistant Secretary or other appropriate officer of the Company, authorizing the execution, delivery and performance of the Transactional Agreements and the Transactions, and copies of resolutions of the meeting of shareholders of the Company (or written consent in lieu thereof), certified by a Secretary, Assistant Secretary or other appropriate officer of the Company, authorizing the execution, delivery and performance of the Transactional Agreements and the Transactions; (v) good standing certificate for the States of California and Florida; (vi) the updated capitalization information for the Company required by Section 4.3(a), certified as true and correct by an executive officer of the Company; and 34 35 (vii) such other documents as Verio may request in good faith for the purpose of (i) evidencing the accuracy of any representation or warranty made by the Company or any Shareholder, (ii) evidencing the compliance by the Company, or the performance by the Company of, any covenant or obligation set forth in this Agreement or any of the other Transactional Agreements, (iii) evidencing the satisfaction of any condition set forth in Section 9.1 or this Section 9.2, or (iv) otherwise facilitating the consummation or performance of any of the Transactions. (j) Since the date of this Agreement, there shall not exceed 100,000,000 shareshave been commenced or threatened against Verio, or against any Person affiliated with Verio, any Proceeding (i) involving any challenge to, or seeking Damages or other relief in connection with, any of the Transactions, or (ii) that may have the effect of preventing, delaying, making illegal or otherwise interfering with any of the Transactions or any of the Transactional Agreements or having a material adverse effect on the Company. (k) No Person shall have made or threatened any claim asserting that such Person (i) may be the holder or the beneficial owner of, or may have the right to acquire or to obtain beneficial ownership of, any capital stock or other securities of the Company, or (ii) may be entitled to all or any portion of the consideration to be issued in connection with the Merger pursuant to Section 7.23.1. (l) Neither the consummation nor the performance of any of the Transactions or any of the Transactional Agreements will, directly or indirectly (with or without notice or lapse of time), contravene or conflict with or result in a violation of, or cause Verio or any Person affiliated with Verio to suffer any material adverse consequence under (i) any applicable Legal Requirement or Order or (ii) any Legal Requirement or Order that has been proposed by or before any Governmental Body. (m) Each Person (other than Verio and Merger Sub) shall have executed and delivered prior to or on the Closing Date all Transactional Agreements to which it is to be a party. (n) Verio shall have received from the Company the reports of Company Transaction Expenses required to be delivered pursuant to Section 6.12. (o) The holders of no more than ten percent (10%) of the outstanding shares of Company Common Stock shall have demanded and not lost or withdrawn, or shall be eligible to demand, dissenters' rights. (p) Each of the Company's employees and consultants shall have entered into a Proprietary Information and Inventions Agreement substantially in the form of Exhibit C-1 or C-2 hereto or such other form as shall have been provided to and approved by Verio. (q) Each of the employment agreements between the Company and the Company Specified Officers shall have been terminated as required by Section 6.20, and Verio shall be satisfied in its reasonable discretion that there are no Company employee benefit plans, arrangements, agreements or understandings that would, whether upon the closing of the Merger or otherwise in connection with the Merger (including after the passage of time and the taking of any action such as the termination of an employee), constitute "excess parachute payments" within the meaning of Section 280G of the Code. (r) Verio, since the date of this Agreement, shall have raised such additional financing, on terms and conditions satisfactory to Verio in its sole discretion, to allow it to fulfill its obligations under this Agreement with respect to the conversion of shares of Company Common Stock as provided in Section 3.1. 9.3 Additional Conditions to the Company's Obligation to Consummate the Merger. The Company's obligation to consummate the Merger and to take the other actions required to be taken by the Company at the Closing shall be subject to the satisfaction, at or prior to the Closing, of each of the following conditions (any of which may be waived by the Company, in whole or in part): (a) All of the representations and warranties made by Verio and Merger Sub in this Agreement (considered collectively) shall have been accurate in all material respects as of the date of this Agreement and shall be accurate in all material respects as of the Closing Time. 35 36 (b) The Company shall have received the following documents: (i) a certificate (the "Verio Closing Certificate"), dated the Closing Date, duly executed by Verio, certifying that (A) each of the representations and warranties made by Verio and the Merger Sub in this Agreement and in the other Transactional Agreements was accurate in all material respects as of the date of the applicable Agreement and is accurate in all material respects as of the Closing Date as if made on the Closing Date, (B) each of the covenants and obligations that Verio or the Merger Sub is required to have complied with or performed pursuant to this Agreement or any of the other Transactional Agreements at or prior to the Closing has been duly complied with and performed in all material respects, and (C) each of the conditions set forth in Section 9.3 has been satisfied in all respects; and (ii) such other documents as the Company may request in good faith for the purpose of (A) evidencing the accuracy of any representation or warranty made by Verio and Merger Sub, (B) evidencing the compliance by Verio and Merger Sub with, or the performance by Verio and Merger Sub of, any covenant or obligation set forth in this Agreement or any of the other Transactional Agreements, (C) evidencing the satisfaction of any condition set forth in this Article 9, or (D) otherwise facilitating the consummation or performance of any of the Transactions. (c) All of the covenants and obligations that either Verio or Merger Sub is required to comply with or to perform pursuant to this Agreement at or prior to the Closing (considered collectively) shall have been duly complied with and performed in all material respects. (d) Verio shall have executed an delivered a Registration Rights Agreement to each individual that has executed and delivered to Verio a Voting Agreement. (e) Subject to the terms and conditions of this Agreement, Verio and Merger Sub shall have executed and delivered prior to or on the Closing Date all Transactional Agreements to which it is to be a party. (f) Neither the consummation nor the performance of any of the Transactions or any of the Transactional Agreements will, directly or indirectly (with or without notice or lapse of time), contravene or conflict with or result in a violation of, or cause the Shareholders to suffer any material adverse consequences under, (a) any applicable Legal Requirement or Order or (b) any Legal Requirement or Order that has been proposed by or before any Governmental Body. (g) There shall not have been any material adverse change in Verio's business, condition, assets, liabilities, operations or financial performance since the date of this Agreement; provided, however, that a decrease in the trading price of Verio Common Stock shall not of itself be considered a material adverse change. (h) The person designated by the Company as a member of the Verio Board of Directors pursuant to Section 8.10(d) shall have been appointed to the Verio Board of Directors (if so designated), effective at the Effective Time. ARTICLE 10

CONDITIONS TO CONSUMMATION OF THE. EXCHANGE MERGER Section 7.1 6.1. Conditions to Each Party's Obligations of BANYAN and BANYAN Ownersto Effect the Merger. The respective obligations of BANYAN and BANYAN Owners each party hereto to consummate effect the Exchange shall be Merger are subject to the fulfillment, or written waiver by BANYAN, satisfaction at or prior to the Closing, of each Effective Time of the following conditions: (a) DGHG this Agreement shall have delivered to BANYAN each been approved and adopted by the requisite vote of the documents required stockholders of the Company and, the Share Issuance shall have been approved by Section 2.2(a) the requisite vote of this Agreementthe stockholders of AGT; (b) The representations no statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or enforced by any United States court or United States governmental authority and warranties of DGHG set out continued in this Agreement shall be true and correct in all material respects at and as effect which prohibits, restrains, enjoins or restricts the consummation of the time of the Closing as though such representations and warranties were made at and as of such timeMerger; (c) DGHG any waiting period applicable to the Merger under the HSR Act shall have performed terminated or expired, and complied in all material respects any other governmental or regulatory notices or approvals required with all covenants, conditions, obligations and agreements required by this Agreement to be performed or complied with by such parties on or prior respect to the Closing Datetransactions contemplated hereby shall have been either filed or received; (d) All consents, approvals, permits, authorizations and orders required to be obtained from, and all registrations, filings and notices required to be made with or given to, any Governmental Authority or Person as provided herein the S-4 shall have been obtainedbecome effective under the Securities Act and shall not be the subject of any stop order or proceedings seeking a stop order and AGT shall have received all state securities laws or "blue sky" permits and authorizations necessary to issue shares of AGT Common Stock in exchange for the Shares in the Merger; (e) BANYAN shall have completed a due diligence review of the business, operations, financial condition and prospects of DGHG and AGT Common Stock issuable in the Merger shall have been satisfied with authorized for quotation on the results NASDAQ, upon official notice of its due diligence review in its sole issuance; and absolute discretion; (f) There has the number of directors of AGT shall have been no Material Adverse Effect on the business, condition or prospects of DGHG until the Closing Date; (g) DGHG shall file if applicable with the SEC a Schedule 14(f)-l with respect to any change of control transactions described in this Agreementincreased by two, and the vacancies created thereby shall have caused the Schedule 14(f)01 been initially filled by Marnx Xxxxxxxxx, Xx. xxx a designee to be mailed to each registered holder of its Common Stock; (h) Holders of all of determined jointly by the BANYAN Interests shall have become party to the Exchange; Company and (i) The outstanding shares of Common Stock of DGHG prior to the Closing shall not exceed 100,000,000 sharesAGT. Section 7.26.2.