Common use of Conditions to Obligations of Parent and Merger Sub Clause in Contracts

Conditions to Obligations of Parent and Merger Sub. The obligation of Parent and Merger Sub to consummate the First Merger shall also be subject to the satisfaction or waiver of the following conditions by Parent at or prior to the Closing: (a) (i) The representations and warranties of the Company set forth in Article IV (other than Sections 4.12(b) and 4.4(a)) which are qualified by a “Material Adverse Effect” qualification shall be true and correct in all respects as so qualified at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date and (ii) the representations and warranties of the Company set forth in Article IV (other than Sections 4.12(b) and 4.4(a)) which are not qualified by a “Material Adverse Effect” qualification shall be true and correct at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except for such failures to be true and correct as would not have, in the aggregate, a Material Adverse Effect on the Company, (iii) the representations and warranties set forth in Section 4.4(a) shall be true and correct in all material respects on the date hereof and on the Closing Date as if made on and as of such dates, other than with respect to any issuances permitted pursuant to this Agreement, and (iv) the representation set forth in Section 4.12(b) shall be true and correct in all respects on the Closing Date as if made on and as of such date; provided, however, that, with respect to clauses (i), (ii), (iii) and (iv) above, representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clause (i), (ii), (iii) or (iv), as applicable) only as of such date or period. (b) The Company shall have performed and complied with all of its covenants hereunder to be performed or complied with by it prior to the Effective Time in all material respects through the Closing. (c) The Company shall have delivered to Parent a certificate duly executed by the Company’s chief executive officer and chief financial officer on behalf of the Company to the effect that each of the conditions specified above in Sections 6.2(a) and 6.2(b) is satisfied in all respects. (d) Parent shall have received from L▇▇▇▇▇ & W▇▇▇▇▇▇ LLP, counsel to Parent, a written opinion dated the Closing Date to the effect that, on the basis of the facts, representations and assumptions set forth or referred to in such opinion, for United States federal income tax purposes, the Transaction will constitute a “reorganization” within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to Parent shall be entitled to rely upon assumptions, representations, warranties and covenants, including those contained in the Tax Representation Letters described in Section 5.1(l).

Conditions to Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate consummate, or cause to be consummated, the First Merger shall also be are subject to the satisfaction or waiver of the following conditions additional conditions, any one or more of which may be waived in writing by Parent at or prior to the Closingand Merger Sub: (a) (i) The representations and warranties of the Company set forth in Article IV (other than Sections 4.12(b) and 4.4(a)) which are qualified by a “Material Adverse Effect” qualification Fundamental Representations shall be true and correct in all material respects, in each case as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects as so qualified at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements, (ii) the representation and at warranty of the Company contained in the second sentence of Section 4.24 shall be true and correct as of the Closing Date as though made at and as of the Closing Date in all respects and (iiiii) each of the representations and warranties of the Company set forth contained in Article IV (this Agreement other than Sections 4.12(b) the Company Fundamental Representations and 4.4(a)) which are not qualified by a “the second sentence of Section 4.24 (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Company Material Adverse Effect” Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect; (b) Each of the covenants of the Company to be performed as of or prior to the Closing shall have been performed in all material respects; and (c) There shall not have occurred a Company Material Adverse Effect after the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except for such failures to be true and correct as would not have, in the aggregate, a Material Adverse Effect on the Company, (iii) the representations and warranties set forth in Section 4.4(a) shall be true and correct in all material respects on the date hereof and on the Closing Date as if made on and as of such dates, other than with respect to any issuances permitted pursuant to this Agreement, and (iv) the representation set forth in Section 4.12(b) shall be true and correct in all respects on the Closing Date as if made on and as of such date; provided, however, that, with respect to clauses (i), (ii), (iii) and (iv) above, representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clause (i), (ii), (iii) or (iv), as applicable) only as of such date or period. (b) The Company shall have performed and complied with all of its covenants hereunder to be performed or complied with by it prior to the Effective Time in all material respects through the Closing. (c) The Company shall have delivered to Parent a certificate duly executed by the Company’s chief executive officer and chief financial officer on behalf of the Company to the effect that each of the conditions specified above in Sections 6.2(a) and 6.2(b) is satisfied in all respects. (d) Parent shall have received from L▇▇▇▇▇ & W▇▇▇▇▇▇ LLP, counsel to Parent, a written opinion dated the Closing Date to the effect that, on the basis of the facts, representations and assumptions set forth or referred to in such opinion, for United States federal income tax purposes, the Transaction will constitute a “reorganization” within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to Parent shall be entitled to rely upon assumptions, representations, warranties and covenants, including those contained in the Tax Representation Letters described in Section 5.1(l).

Conditions to Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate effect the First Merger shall also be are subject to the satisfaction or or, to the extent permitted by applicable Law, waiver of the following conditions by Parent or Merger Sub at or prior to the ClosingEffective Time of each of the following conditions: (a) (i) The representations and warranties of the Company Ivory set forth in Article IV (other than Sections 4.12(b) and 4.4(a)) which are qualified by a “this Agreement, when read without any exception or qualification as to materiality or Ivory Material Adverse Effect” qualification , shall be true and correct as of the date hereof and as of the Closing Date, as if such representations and warranties were made as of the date hereof and as of the Closing Date (except as to any such representation or warranty which speaks as of a specific date, which must be true and correct as of such specific date) except where the failure to be so true and correct would not, individually or in the aggregate, reasonably be expected to (i) have an Ivory Material Adverse Effect, (ii) prevent or materially delay the consummation of the Merger. The representations contained in the first, second, and sixth sentences of Sections 4.1(b) shall be true in all respects as so qualified at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date and (ii) the representations and warranties contained in Section 4.1(c) shall be true in all material respects; provided that a variation of up to one percent (1%) in the aggregate of the Company outstanding Common Share, Preferred Share and Option amounts set forth in Article IV the first, second and sixth sentences of Section 4.1(b) shall not make such representation and warranty incorrect. Parent shall have received a certificate signed on behalf of Ivory by an executive officer of Ivory to the effect of the foregoing sentences. (other than b) Ivory shall have performed or complied (x) in all material respect with its obligations, covenants and agreements under this Agreement and (y) in all respects with all of the obligations, covenants and agreements set forth in Sections 4.12(b5.1(b), (c) and 4.4(a)(h) (except for equity grants, issuances and repurchases of less than one percent (1%) in the aggregate and which are not qualified de minimis in amount) in each case, required to be performed by it under this Agreement at or prior to the Closing Date, and Parent shall have received a “Material Adverse Effect” qualification certificate signed on behalf of Ivory by an executive officer of Ivory to such effect. (c) Ivory shall be true and correct at and own all of the shares of MySpace that it owns as of the date of this Agreement free and at and as clear of all Liens (including any restriction on the Closing Date as though made at and as right to vote, sell or otherwise dispose of the Closing Datesuch capital stock of other ownership interests, except for such failures to be true restrictions on transfer imposed by federal and correct as would not have, in the aggregate, a Material Adverse Effect on the Company, (iiistate securities laws) the representations and warranties set forth in Section 4.4(a) shall be true and correct in all material respects on the date hereof and on the Closing Date as if made on and as of such dates, other than with respect to any issuances permitted Liens pursuant to this the Stockholders Agreement, and (iv) the representation set forth in Section 4.12(b) shall be true and correct in all respects on the Closing Date as if made on and as of such date; provided, however, that, with respect to clauses (i), (ii), (iii) and (iv) above, representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clause (i), (ii), (iii) or (iv), as applicable) only as of such date or period. (b) The Company shall have performed and complied with all of its covenants hereunder to be performed or complied with by it prior to the Effective Time in all material respects through the Closing. (c) The Company shall have delivered to Parent a certificate duly executed by the Company’s chief executive officer and chief financial officer on behalf of the Company to the effect that each of the conditions specified above in Sections 6.2(a) and 6.2(b) is satisfied in all respects. (d) Parent shall have received from L▇▇▇▇▇ & W▇▇▇▇▇▇ LLP, counsel to Parent, a written opinion dated the Closing Date to the effect that, on the basis of the facts, representations and assumptions set forth or referred to in such opinion, for United States federal income tax purposes, the Transaction will constitute a “reorganization” within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to Parent shall be entitled to rely upon assumptions, representations, warranties and covenants, including those contained in the Tax Representation Letters described in Section 5.1(l).

Conditions to Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate effect the First Merger shall also be further subject to the satisfaction or waiver of the following conditions by Parent at or prior to the ClosingEffective Time of each of the following conditions: (a) (i) The the representations and warranties of the Company set forth in Article IV Sections 3.3(a), (other than Sections 4.12(bb) and 4.4(a)(c) which are qualified by a “Material Adverse Effect” qualification shall each be true and correct in all respects as so qualified at and in each case as of the date of this Agreement and at and as of the Closing Date Effective Time as though made at and as of the Closing Date Effective Time (except those representations and warranties that speak of an earlier date, which shall be true and correct as of such earlier date) (provided, that for purposes of this Section 7.2(a) only, the representations and warranties of the Company set forth in Sections 3.3(a), (b) and (c) shall collectively be deemed satisfied if the aggregate number of outstanding shares of Company Common Stock underlying the Company Options and Restricted Stock Units set forth in Sections 3.3(a), (b) and (c) is inaccurate by no more than an immaterial amount) and (ii) the representations and warranties of the Company in this Agreement (other than the representations and warranties set forth in Article IV Sections 3.3(a), (other than Sections 4.12(bb) and 4.4(a(c)) which are not qualified by a “Material Adverse Effect” qualification shall be true and correct at and (without giving effect to any “materiality” or Material Adverse Effect qualifications contained therein), in each case as of the date of this Agreement and at and as of the Closing Date Effective Time as though made at and as of the Closing DateEffective Time (except those representations and warranties that speak of an earlier date, except for such failures to which shall be true and correct as would not haveof such earlier date), except where the failure of any such representations and warranties referred to in clause (ii) above to be so true and correct, individually or in the aggregate, would not result in a Company Material Adverse Effect on the Company, Effect; (iiib) the representations and warranties set forth in Section 4.4(a) Company shall be true and correct have performed in all material respects on the date hereof obligations, and on complied in all material respects with the Closing Date as if made on agreements and as covenants, required to be performed by or complied with by it under this Agreement at or prior to the Effective Time; (c) Parent shall have received a certificate of such datesthe chief executive officer or the chief financial officer of the Company, certifying that the conditions set forth in Sections 7.2(a) and 7.2(b) have been satisfied; and (d) there shall not be any action, investigation, proceeding or litigation instituted, commenced, pending or threatened by or before any Governmental Entity relating to the Merger, the Mortgage Business Sale or any of the other than with respect transactions contemplated by this Agreement in which a Governmental Entity is a party that would or is reasonably likely to any issuances permitted pursuant to (i) restrain, enjoin, prevent, restrict, prohibit or make illegal the acquisition of some or all of the shares of Company Common Stock by Parent or Merger Sub or the consummation of the Merger or the other transactions contemplated by this Agreement, or (ii) result in a Governmental Investigation or material Governmental Damages being imposed on Parent or the Surviving Corporation or any of their respective Affiliates; (e) The Merger and the other transactions contemplated by this Agreement and the Mortgage Business Sale Agreement shall have been approved by the New York State Insurance Department; (ivf) the representation set forth The consents, approvals, notifications, or certificates listed in Section 4.12(b7.2(f) of the Company Disclosure Schedule hereto shall be true have been obtained and correct in all respects on the Closing Date as if made on and as copies of such date; provided, however, that, with respect consents shall have been delivered by Company to clauses (i), (ii), (iii) and (iv) above, representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clause (i), (ii), (iii) or (iv), as applicable) only as of such date or period.Parent; (bg) The Company shall have performed filed all forms, reports, and complied with all of its covenants hereunder other documents required to be performed filed with the SEC with respect to periods from January 1, 2006 through the Effective Time; (h) The 2006 Audited Company Financial Statements shall not reflect a consolidated financial condition or complied with by it prior results of operations of the Company, its consolidated Subsidiaries and its consolidated Company Joint Ventures that is different from the consolidated financial condition or results of operations of the Company, its consolidated Subsidiaries and its consolidated Company Joint Ventures reflected in the Unaudited Company Financial Statements, unless such difference would not constitute, or would not reasonably be expected to constitute, a Material Adverse Effect; (i) All of the conditions to the Effective Time obligations of the purchaser under the Mortgage Business Sale Agreement to consummate the Mortgage Business Sale (other than the condition that the Merger shall have been consummated) shall have been satisfied or waived in all material respects through accordance with the Closing.terms thereof, and such purchaser shall otherwise be ready, willing and able (including with respect to access to financing) to consummate the transactions contemplated thereby; and (cj) The Company shall have delivered to Parent a certificate duly the Mortgage Business Purchaser Acknowledgement Agreements fully executed by the Company’s chief executive officer applicable Agency and chief financial officer on behalf of the Company to and/or the effect that each of the conditions specified above in Sections 6.2(a) and 6.2(b) is satisfied in all respectsapplicable Mortgage Entity. (d) Parent shall have received from L▇▇▇▇▇ & W▇▇▇▇▇▇ LLP, counsel to Parent, a written opinion dated the Closing Date to the effect that, on the basis of the facts, representations and assumptions set forth or referred to in such opinion, for United States federal income tax purposes, the Transaction will constitute a “reorganization” within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to Parent shall be entitled to rely upon assumptions, representations, warranties and covenants, including those contained in the Tax Representation Letters described in Section 5.1(l).

Conditions to Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate effect the First Merger shall also be are further subject to the satisfaction (or waiver of the following conditions by Parent at waiver, if permissible under applicable Law) on or prior to the ClosingClosing Date of the following conditions: (a) (i) The representations and warranties of the Company Fundamental Representations set forth in Article IV (other than Sections 4.12(b) and 4.4(a)) which are qualified by a “Material Adverse Effect” qualification this Agreement shall be true and correct in all material respects as so qualified at of the date hereof and as of the Closing, except the Fundamental Representations made as of an earlier date or time, which need be true and correct only as of such earlier date or time. The representations of the Company set forth in this Agreement other than the Fundamental Representations shall be true and at and correct as of the Closing Date as though made at date hereof and as of the Closing Date except (i) for representations and warranties that speak as of a specific date or time (which need be true and correct only as of such date or time) and (ii) for breaches of the representations and warranties of the Company set forth in Article IV ARTICLE III (other than Sections 4.12(bthe Fundamental Representations) and 4.4(a)) which are not qualified by a “Material Adverse Effect” qualification shall be true and correct at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except for such failures to be true and correct as would not havethat, in the aggregate, would not have a Material Adverse Effect on the Company, (iii) the representations and warranties set forth in Section 4.4(a) shall be true and correct in all material respects on the date hereof and on the Closing Date as if made on and as of such dates, other than with respect to any issuances permitted pursuant to this Agreement, and (iv) the representation set forth in Section 4.12(b) shall be true and correct in all respects on the Closing Date as if made on and as of such date; provided, however, that, with respect to clauses (i), (ii), (iii) and (iv) above, representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clause (i), (ii), (iii) or (iv), as applicable) only as of such date or period.Effect; (b) The Company shall have performed and complied with all of its covenants hereunder to be performed or complied with by it prior to the Effective Time in all material respects through all obligations required to be performed by it under this Agreement at or prior to the Closing.Closing Date; (c) There shall not be any event that is continuing that would individually, or in the aggregate, reasonably be expected to have a Material Adverse Effect; (d) Parent shall have received a certificate, signed by the chief executive officer or chief financial officer of the Company, certifying as to the matters set forth in Section 5.8, Section 8.2(a), Section 8.2(b) and ‎Section 8.2(c); (e) The Company shall have executed and delivered to the Parent a copy of each Transaction Documents to which it is a party; (f) The Company shall have delivered to Parent the Employment Agreement with B▇▇ ▇▇▇▇; (g) The Company shall cause the Stockholders set forth on Schedule 8.2(g) (the “Key Stockholders”) to execute and deliver to Parent the Lock-Up Agreement; (h) Parent shall have received copies of third party consents set forth on Schedule 8.2(h) in form and substance reasonably satisfactory to the Parent, and no such consents have been revoked and the PIPE Financing and such listing shall have been approved by Nasdaq subject to official notice of issuance; (i) Parent shall have received a certificate, signed by an officer of the Company, certifying that true, complete and correct copies of the Organizational Documents of the Company and each of its Subsidiaries, as in effect on the Closing Date, are attached to such certificate; (j) Parent shall have received a certificate, signed by an officer of the Company, certifying that true, complete and correct copies of (i) the unanimous written consent of the Stockholders, and (ii) the resolutions of the directors of the Company authorizing the execution and delivery of this Agreement and the other Transaction Documents to which it is a party and performance by the Company of the Transactions, including the Merger, each having been duly and validly adopted and being in full force and effect as of the Closing Date, are attached to such certificate; and (k) The Company shall have delivered to Parent a certificate duly executed by the Company’s chief executive officer and chief financial officer on behalf of good standing with respect to the Company to the effect that each from State of the conditions specified above in Sections 6.2(a) Delaware and 6.2(b) is satisfied in all respectsState of California. (dl) Parent The Company shall have received from L▇▇▇▇▇ & W▇▇▇▇▇▇ LLP, counsel cause the Stockholder set forth on Schedule 1.6 to Parent, execute and deliver a written opinion dated counterpart of the Investor Rights Agreement; (m) The Company shall cause the Key Stockholders to execute and deliver a counterpart of the voting agreement attached hereto as Exhibit J (the “Voting Agreement”). If the Closing Date to the effect thatoccurs, on the basis all Closing conditions set forth in Section 8.1 and Section 8.2 that have not been fully satisfied as of the facts, representations Closing will be deemed to have been waived by Parent and assumptions set forth or referred to in such opinion, for United States federal income tax purposes, the Transaction will constitute a “reorganization” within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to Parent shall be entitled to rely upon assumptions, representations, warranties and covenants, including those contained in the Tax Representation Letters described in Section 5.1(l)Merger Sub.

Conditions to Obligations of Parent and Merger Sub. (a) The obligation obligations of Parent and Merger Sub to consummate complete the First Closing and effect the Merger shall also be under Article III of this Agreement are further subject to the satisfaction (or waiver in writing by Parent and Merger Sub) of the following conditions by Parent at precedent on or prior to before the ClosingEffective Time: (a) (i) The representations and warranties of the Company set forth in Article IV (other than Sections 4.12(b4.1(c)(i)-(iii) and 4.4(aSection 4.1(e)) which are qualified by a “Material Adverse Effect” qualification , shall be true and correct in all respects as so qualified at and (except for any de minimis inaccuracies) as of the date of this Agreement and at and as of the Closing Date as though made at as of the Closing Date (except to the extent that any such representation and warranty speaks as of any earlier date, in which case such representation and warranty shall be true and correct as of such earlier date); (ii) The representations and warranties of the Company set forth in Sections 4.1(a), 4.1(c)(iv), 4.2, 4.3(iii), the third sentence of Section 4.1(d) and Section 4.18 shall be true and correct as of the date of this Agreement, and as of the Closing Date as though made as of the Closing Date (except to the extent that any such representation and warranty speaks as of any earlier date, in which case such representation and warranty shall be true and correct as of such earlier date) in all material respects; (iiiii) the representations and warranties of the Company set forth in Article IV (other than Sections 4.12(bthe first two sentences of Section 4.1(b) and 4.4(a)) which are not qualified by a “Material Adverse Effect” qualification the second sentence of Section 4.16 shall be true and correct at and in all respects as of the date of this Agreement and at and as of the Closing Date as though made at as of the Closing Date; and (iv) other than the representations and warranties listed in the immediately preceding clauses (i), (ii) and (iii), each of the representations and warranties of the Company contained in this Agreement shall be true and correct as of the date of this Agreement and as of the Closing DateDate (without giving effect to any materiality, Company Material Adverse Effect or like qualifications therein) as though made on and as of such date and time (except to the extent that any such representation and warranty speaks as of any earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), except, in each case, for such failures to be true and correct as would not havenot, individually or in the aggregate, have or reasonably be expected to have a Company Material Adverse Effect on the Company, (iii) the representations and warranties set forth in Section 4.4(a) shall be true and correct in all material respects on the date hereof and on the Closing Date as if made on and as of such dates, other than with respect to any issuances permitted pursuant to this Agreement, and (iv) the representation set forth in Section 4.12(b) shall be true and correct in all respects on the Closing Date as if made on and as of such date; provided, however, that, with respect to clauses (i), (ii), (iii) and (iv) above, representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clause (i), (ii), (iii) or (iv), as applicable) only as of such date or periodEffect. (b) The Company shall have duly performed and complied with, in all material respects, the covenants, obligations and agreements contained in this Agreement to be performed and complied with all of its covenants hereunder to be performed or complied with by it at or prior to the Effective Time in all material respects through the Closing. (c) The No Company Material Adverse Effect shall have delivered to Parent a certificate duly executed by occurred since the Company’s chief executive officer and chief financial officer on behalf date of the Company to the effect that each of the conditions specified above in Sections 6.2(a) and 6.2(b) is satisfied in all respectsthis Agreement. (d) Parent and Merger Sub shall have received from L▇▇▇▇▇ & W▇▇▇▇▇▇ LLP, counsel to Parent, a written opinion dated the Closing Date to the effect that, certificate executed on the basis behalf of the facts, representations and assumptions Company by its Chief Executive Officer or Chief Financial Officer confirming that the conditions set forth or referred to in such opinionclauses (a), for United States federal income tax purposes, the Transaction will constitute a “reorganization” within the meaning of Section 368(a(b) and (c) of the Code. In rendering such opinion, counsel to Parent shall be entitled to rely upon assumptions, representations, warranties and covenants, including those contained in the Tax Representation Letters described in this Section 5.1(l)7.2 have been duly satisfied.

Conditions to Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate effect the First Merger shall also be are subject to the satisfaction or waiver of the following conditions by Parent satisfaction, at or prior to the Closing, of each of the following conditions: (a) (i) The representations and warranties of the Company set forth in Article IV Sections 2.1 (other than Sections 4.12(bDue Organization; Subsidiaries Etc.), 2.3 (Capitalization, Etc.), 2.5 (first sentence only and not including clause (a) thereof) (Absence of Changes), 2.20 (Authority; Binding Nature of Agreement), 2.21 (Vote Required) and 4.4(a)2.24 (Financial Advisor) which are qualified by a “Material Adverse Effect” qualification of the Agreement shall be true and correct have been accurate in all material respects as so qualified at and as of the date of this Agreement the Agreement, and shall be accurate in all material respects at and as of the Closing Date as though made at and as of the Closing Date and (ii) the representations and warranties of the Company set forth in Article IV (other than Sections 4.12(b) and 4.4(a)) which are not qualified by a “Material Adverse Effect” qualification shall be true and correct at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except for such failures to be true and correct as would not have, in the aggregate, a Material Adverse Effect on the Company, (iii) the representations and warranties set forth in Section 4.4(a) shall be true and correct in all material respects on the date hereof and on the Closing Date as if made on and as of such datesClosing Date (it being understood that, for purposes of determining the accuracy of such representations and warranties, (i) all “Material Adverse Effect” qualifications and other than with respect materiality qualifications contained in such representations and warranties shall be disregarded, (ii) any update of or modification to any issuances permitted the Company Disclosure Schedule made or purported to have been made after the date of the Agreement shall be disregarded and (iii) the truth and correctness of those representations or warranties that address matters only as of a specific date shall be measured (subject to the applicable materiality standard as set forth in this Section 6.2(a)) only as of such date). Solely for the purposes of this Section 6.2(a), if one or more inaccuracies in the representations and warranties set forth in Sections 2.1 (Due Organization; Subsidiaries Etc.), 2.3 (Capitalization, Etc.), 2.5 (first sentence only and not including clause (a) thereof) (Absence of Changes), 2.20 (Authority; Binding Nature of Agreement), 2.21 (Vote Required) and 2.24 (Financial Advisor) would cause the aggregate amount required to be paid by Parent or Merger Sub to effectuate the Merger, consummate the Transactions to be consummated on the Closing Date and pay all fees and expenses in connection therewith, whether pursuant to Section 1 or otherwise, to increase by $250,000 or more, such inaccuracy or inaccuracies will be considered material for purposes of this Agreement, Section 6.2(a). (b) The representations and (iv) warranties of the representation Company set forth in Section 4.12(b2.5(b) (No Material Adverse Effect) shall be true and correct have been accurate in all respects on as of the date of the Agreement (it being understood that, for purposes of determining the accuracy of such representations and warranties, (i) any update of or modification to the Company Disclosure Schedule made or purported to have been made after the date of the Agreement shall be disregarded and (ii) the truth and correctness of those representations and warranties that address matters only as of a specific date shall be measured (subject to the applicable standard as set forth in this Section 6.2(b)) as of such date). (c) The representations and warranties of the Company set forth in the Agreement (other than those referred to in clauses “a” or “b” above) shall have been accurate in all respects as of the date of the Agreement, and shall be accurate in all respects at and as of the Closing Date as if made on and as of such date; provided, howeverexcept that any inaccuracies in such representations and warranties will be disregarded if the circumstances giving rise to all such inaccuracies (considered collectively) do not constitute, and would not reasonably be expected to have, a Material Adverse Effect (it being understood that, with respect to clauses for purposes of determining the accuracy of such representations and warranties, (i)) all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded, (ii), ) any update of or modification to the Company Disclosure Schedule made or purported to have been made after the date of the Agreement shall be disregarded and (iii) the truth and (iv) above, correctness of those representations and or warranties that are made address matters only as of a particular specific date or period shall be true and correct measured (in subject to the manner applicable materiality standard as set forth in clause (i), (ii), (iii) or (iv), as applicableabove) only as of such date or perioddate). (bd) The Company shall have performed and complied with all of its covenants hereunder to be performed or complied with by it prior to the Effective Time in all material respects through with any covenant or obligation that the ClosingCompany is required to comply with or to perform under the Agreement prior to the Closing Date, or, if not complied with or performed in all material respects, such noncompliance or failure to perform shall have been cured. (ce) The Company Parent and Merger Sub shall have delivered to Parent a certificate duly received certificates executed by the Company’s chief executive officer and chief financial officer on behalf of the Company to by the effect that each chief executive officer or chief financial officer of the Company, certifying that the conditions specified above set forth in Sections 6.2(a), (b), (c), (d) and 6.2(b(j) is satisfied in all respectshave been satisfied. (df) Since the date of this Agreement, there shall not have occurred a Material Adverse Effect that shall be continuing as of the Closing Date. (g) There shall not have been issued by any court of competent jurisdiction or remain in effect any temporary restraining order, preliminary or permanent injunction or other order preventing the consummation of the Merger nor shall any action have been taken, or any Legal Requirement or order promulgated, entered, enforced, enacted, issued or deemed applicable to the Merger by any Governmental Body which directly or indirectly prohibits, or makes illegal, the acceptance for payment of or payment for shares of Company Common Stock or the consummation of the Merger; provided, however, that Parent and Merger Sub shall not be permitted to invoke this Section 6.2(g) unless they shall have taken all actions required under this Agreement to have any such order lifted. (h) There shall not be pending any Legal Proceeding by a Governmental Body having authority over Parent, Merger Sub or any Acquired Corporation (i) challenging or seeking to restrain or prohibit the consummation of the Merger, (ii) seeking to restrain or prohibit Parent’s or its Affiliates ownership or operation of the business of the Acquired Corporations, or of Parent or its Affiliates, or to compel Parent or any of its Affiliates to dispose of or hold separate all or any portion of the business or assets of the Acquired Corporations or of Parent or its Affiliates or (iii) seeking to impose or confirm material limitations on the ability of Parent or any of its Affiliates effectively to exercise full rights of ownership of the shares of Company Common Stock. (i) Parent shall have received from L▇▇▇▇▇ & W▇▇▇▇▇▇ LLPthe Bank of America Consent and Waiver, counsel fully executed and in a form acceptable to Parent, a written opinion dated the Closing Date to the effect thatand an accurate copy of each other Consent, on the basis of the facts, representations filing and assumptions set forth or referred to notice identified in such opinion, for United States federal income tax purposes, the Transaction will constitute a “reorganization” within the meaning of Section 368(aPart 6.2(i) of the Code. In rendering such opinionCompany Disclosure Schedule hereto, counsel each of which Consents shall be in a form reasonably acceptable to Parent. (j) The Amendment and Waivers and Separation Agreements shall continue to be in full force and effect as of the Effective Time. (k) Parent shall be entitled to rely upon assumptions, representations, warranties and covenants, including those contained in have received the Tax Representation Letters described in Section 5.1(l)resignations of the Acquired Corporations’ respective directors.

Conditions to Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate effect the First Merger shall also be are further subject to the satisfaction (or waiver of the following conditions by Parent at waiver, if permissible under applicable Law) on or prior to the ClosingClosing Date of the following conditions: (a) The Fundamental Representations (iother than Section 3.5(a)) The representations and warranties of the Company set forth in Article IV this Agreement shall be true and correct in all material respects as of the date hereof and as of the Closing Date, except the Fundamental Representations (other than Sections 4.12(b) and 4.4(aSection 3.5(a)) made as of an earlier date or time, which are qualified by a “Material Adverse Effect” qualification need be true and correct only as of such earlier date or time. Section 3.5(a) shall be true and correct in all respects as so qualified at and as of the date of this Agreement and at hereof and as of the Closing Date as though Date, except (i) for the portions of Section 3.5(a) made at and as of the Closing Date an earlier date or time, which need be true and correct only as of such earlier date or time and (ii) for breaches of Section 3.5(a) that, in the aggregate, would not result in a misrepresentation as to securities of the Company valued at less than $100,000. The representations of the Company set forth in this Agreement other than the Fundamental Representations shall be true and correct as of the date hereof and as the Closing Date except (i) for representations and warranties that speak as of a specific date or time, which need be true and correct only as of such date or time and (ii) for breaches of the representations and warranties of the Company set forth in Article IV ARTICLE III (other than Sections 4.12(bthe Fundamental Representations) and 4.4(a)) which are not qualified by a “Material Adverse Effect” qualification shall be true and correct at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except for such failures to be true and correct as would not havethat, in the aggregate, would not have a Material Adverse Effect on the Company, (iii) the representations and warranties set forth in Section 4.4(a) shall be true and correct in all material respects on the date hereof and on the Closing Date as if made on and as of such dates, other than with respect to any issuances permitted pursuant to this Agreement, and (iv) the representation set forth in Section 4.12(b) shall be true and correct in all respects on the Closing Date as if made on and as of such date; provided, however, that, with respect to clauses (i), (ii), (iii) and (iv) above, representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clause (i), (ii), (iii) or (iv), as applicable) only as of such date or period.Effect; (b) The Company shall have performed and complied with all of its covenants hereunder to be performed or complied with by it prior to the Effective Time in all material respects through all obligations required to be performed by it under this Agreement at or prior to the Closing.Closing Date; (c) There shall not be any event that is continuing that would individually, or in the aggregate, reasonably be expected to have a Material Adverse Effect; (d) Parent shall have received a certificate, signed by the chief executive officer or chief financial officer of the Company, certifying as to the matters set forth Section 8.2(a), Section 8.2(b) and ‎Section 8.2(c); (e) The Company Preferred Stock Conversion shall have been consummated; (f) The Company SAFE Conversion shall have been consummated; (g) The Company shall have executed and delivered to the Parent a copy of each Transaction Document to which it is a party; (h) The Stockholders set forth on Schedule 8.2(h) (the “Key Stockholders”) shall have executed and delivered to Parent the Lock-Up Agreement; (i) Parent shall have received a certificate, signed by an officer of the Company, certifying that true, complete and correct copies of the Organizational Documents of the Company, as in effect on the Closing Date, are attached to such certificate; (j) Parent shall have received a certificate, signed by an officer of the Company, certifying that true, complete and correct copies of the resolutions of the directors of the Company authorizing the execution and delivery of this Agreement and the other Transaction Documents to which it is a party and performance by the Company of the Transactions, including the Merger, having been duly and validly adopted and being in full force and effect as of the Closing Date, are attached to such certificate; (k) Parent has received from Parent Investors in the PIPE Financing at least $50,000,000; and (l) The Company shall have delivered to Parent a certificate duly executed by of good standing with respect to the Company’s chief executive officer Company from State of Delaware and chief financial officer on behalf the State of California. If the Closing occurs, all Closing conditions set forth in Section 8.1 and Section 8.2 that have not been fully satisfied as of the Company Closing will be deemed to the effect that each of the conditions specified above in Sections 6.2(a) have been waived by Parent and 6.2(b) is satisfied in all respectsMerger Sub. (d) Parent shall have received from L▇▇▇▇▇ & W▇▇▇▇▇▇ LLP, counsel to Parent, a written opinion dated the Closing Date to the effect that, on the basis of the facts, representations and assumptions set forth or referred to in such opinion, for United States federal income tax purposes, the Transaction will constitute a “reorganization” within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to Parent shall be entitled to rely upon assumptions, representations, warranties and covenants, including those contained in the Tax Representation Letters described in Section 5.1(l).

Conditions to Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate effect the First Merger shall also be are further subject to the satisfaction or waiver of the following conditions by Parent at or prior to the ClosingEffective Time of the following conditions: (a) (i) The the representations and warranties of the Company set forth in Article IV (other than Sections 4.12(b) and 4.4(a)) which this Agreement that are qualified by a “Company Material Adverse Effect” qualification shall be true and correct in all respects as so qualified at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date and (ii) the representations and warranties of the Company set forth in Article IV (other than Sections 4.12(b) and 4.4(a)) which this Agreement that are not so qualified by shall be true and correct, in each case, in all material respects as of the Effective Time as though made on and as of such date (unless any such representation or warranty is made only as of a “Material Adverse Effect” qualification specific date, in which event such representation and warranty shall be true and correct at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except for such failures to be or true and correct in all material respects, as would not havethe case may be, as of such specified date), except where the failure of any such representations and warranties referred to in clause (ii) to be so true and correct, in the aggregate, has not had, and would not reasonably be expected to have a Company Material Adverse Effect on the CompanyEffect; provided, (iii) that the representations and warranties set forth in Section 4.4(a4.3 (Capitalization), Section 4.4 (Authority) and Section 4.23 (Brokers) shall be true and correct in all material respects on as of the date hereof and on the Closing Date Effective Time as if though made on and as of such datesdate (unless any such representation or warranty is made only as of a specific date, other than with respect to any issuances permitted pursuant to this Agreement, in which event such representation and (iv) the representation set forth in Section 4.12(b) warranty shall be true and correct or true and correct in all respects on material respects, as the Closing Date as if made on and case may be, as of such specified date; provided, however, that, with respect to clauses (i), (ii), (iii) and (iv) above, representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clause (i), (ii), (iii) or (iv), as applicable) only as of such date or period.; (b) The the Company shall have performed in all material respects the obligations, and complied in all material respects with all of its covenants hereunder the agreements and covenants, required to be performed by, or complied with by by, it under this Agreement at or prior to the Effective Time in all material respects through the Closing.Time; (c) The the Company shall have delivered to Parent and Merger Sub a certificate duly executed certificate, dated on the Closing Date, signed by the Company’s its chief executive officer and chief financial or another senior officer on behalf of the Company Company, to the effect that each of the conditions specified above contained in Sections 6.2(a8.2(a), (b) and 6.2(b(d) is have been satisfied in all respects.; (d) Parent since the date of this Agreement there shall not have occurred a Company Material Adverse Effect; (e) the Company’s Contract EBITDA for the twelve (12) months ending on July 31, 2007 shall be not less than $32 million; and (f) the Company’s Contract EBITDA for the twelve (12) months ending on October 31, 2007 shall be not less than $31 million; provided, however, that the condition set forth in this Section 8.2(f) shall be inapplicable in the event that each of the other conditions (other than those conditions that by their terms are to be satisfied at the Closing) set forth in Section 8.1 and Section 8.2 shall have received from L▇▇▇▇▇ & W▇▇▇▇▇▇ LLPbeen satisfied prior to November 7, counsel 2007; provided, further, that (i) the Marketing Period has expired prior to ParentNovember 15, a written opinion dated 2007 and (ii) the Closing Date failure to close prior to November 15, 2007 shall not be the effect that, on result of any failure by the basis of the facts, representations and assumptions set forth Company to fulfill its obligations or referred to in such opinion, for United States federal income tax purposes, the Transaction will constitute a “reorganization” within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to Parent shall be entitled to rely upon assumptions, representations, warranties and covenants, including those contained in the Tax Representation Letters described in Section 5.1(l)comply with its covenants hereunder.

Conditions to Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate effect the First Merger shall also be are subject to the satisfaction or waiver of the following conditions by Parent satisfaction, at or prior to the Closing, of each of the following conditions: (a) (i) The representations and warranties of the Company set forth in Article IV (other than Sections 4.12(b) and 4.4(a)) which are qualified by a “Material Adverse Effect” qualification shall be true and correct in all respects as so qualified at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date and (ii) the representations and warranties of the Company set forth in Article IV Sections 2.3(a), 2.3(c) (other than Sections 4.12(bfirst two sentences) and 4.4(a)2.3(d) which are not qualified by a “Material Adverse Effect” qualification (second sentence) (Capitalization) of the Agreement shall be true and correct at and have been accurate in all respects as of the date of this Agreement the Agreement, and shall be accurate in all respects at and as of the Closing Date as though made at and as of the Closing Date, except for such failures to be true and correct as would not have, in the aggregate, a Material Adverse Effect on the Company, (iii) the representations and warranties set forth in Section 4.4(a) shall be true and correct in all material respects on the date hereof and on the Closing Date as if made on and as of such datesClosing Date, except (other than with respect a result of a willful breach by the Company of Section 4.2, to the extent any issuances permitted pursuant such willful breach relates to the subject matter of Sections 2.3(a), 2.3(c) (first two sentences) or 2.3(d) (second sentence) (Capitalization) of the Agreement) where the failure to be so accurate in all respects would not reasonably be expected to result in additional cost, expense or liability to the Company, Parent and their Affiliates, individually or in the aggregate, of more than $4,000,000 (it being understood that, for purposes of determining the accuracy of such representations and warranties, (i) all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded, (ii) any update of or modification to the Company Disclosure Schedule made or purported to have been made after the date of the Agreement shall be disregarded and (iii) the truth and correctness of those representations or warranties that address matters only as of a specific date shall be measured (subject to the applicable materiality standard as set forth in this Section 6.2(a)) only as of such date). (b) the representations and warranties of the Company set forth in Sections 2.15(e) (first three sentences) (Code Section 280G matters), Section 2.16(i) (change in control benefits), 2.20 (Authority; Binding Nature of Agreement), 2.21 (Vote Required) and 2.24 (Financial Advisor) of the Agreement shall have been accurate in all material respects as of the date of the Agreement, and shall be accurate in all material respects at and as of the Closing Date as if made on and as of such Closing Date (ivit being understood that, for purposes of determining the accuracy of such representations and warranties, (i) all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded, (ii) any update of or modification to the Company Disclosure Schedule made or purported to have been made after the date of the Agreement shall be disregarded and (iii) the representation truth and correctness of those representations or warranties that address matters only as of a specific date shall be measured (subject to the applicable materiality standard as set forth in this Section 4.12(b6.2(b)) only as of such date). (c) the representations and warranties of the Company set forth in Sections 2.5(b) (No Material Adverse Effect) shall be true and correct have been accurate in all respects as of the date of the Agreement, and shall be accurate in all respects at and as of the Closing Date as if made on and as of such Closing Date (it being understood that, for purposes of determining the accuracy of such representations and warranties, (i) any update of or modification to the Company Disclosure Schedule made or purported to have been made after the date of the Agreement shall be disregarded and (ii) the truth and correctness of those representations and warranties that address matters only as of a specific date shall be measured (subject to the applicable standard as set forth in this Section 6.2(c)) as of such date). (d) the representations and warranties of the Company set forth in the Agreement (other than those referred to in clauses “a”, “b” or “c” above) shall have been accurate in all respects as of the date of the Agreement, and shall be accurate in all respects at and as of the Closing Date as if made on and as of such date, except that any inaccuracies in such representations and warranties will be disregarded if the circumstances giving rise to all such inaccuracies (considered collectively) do not constitute, and would not reasonably be expected to have, a Material Adverse Effect (it being understood that, for purposes of determining the accuracy of such representations and warranties, (i) all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded, (ii) any update of or modification to the Company Disclosure Schedule made or purported to have been made after the date of the Agreement shall be disregarded and (iii) the truth and correctness of those representations or warranties that address matters only as of a specific date shall be measured (subject to the applicable materiality standard as set forth above) only as of such date). (e) the Company shall have performed or complied in all material respects with any covenant or obligation that the Company is required to comply with or to perform under the Agreement prior to the Closing Date, or, if not complied with or performed in all material respects, such noncompliance or failure to perform shall have been cured. (f) Parent and Merger Sub shall have received certificates executed on behalf of the Company by the chief executive officer or chief financial officer of the Company, certifying that the conditions set forth in Sections 6.2(a), (b), (c). (d) and (e) have been satisfied. (g) since the date of this Agreement, there shall not have occurred a Material Adverse Effect that shall be continuing as of the Closing Date. (h) There shall not have been issued by any court of competent jurisdiction or remain in effect any temporary restraining order, preliminary or permanent injunction or other order preventing the consummation of the Merger nor shall any action have been taken, or any Legal Requirement or order promulgated, entered, enforced, enacted, issued or deemed applicable to the Merger by any Governmental Body which directly or indirectly prohibits, or makes illegal, the acceptance for payment of or payment for shares of Company Common Stock or the consummation of the Merger; provided, however, that, with respect that Parent and Merger Sub shall not be permitted to clauses invoke this Section 6.2(h) unless they shall have taken all actions required under this Agreement to have any such order lifted. (i)) there shall not be pending any Legal Proceeding by a Governmental Body having authority over Parent, Merger Sub or any Acquired Corporation (i) challenging or seeking to restrain or prohibit the consummation of the Merger, (ii)) seeking to restrain or prohibit Parent’s or its Affiliates ownership or operation of the business of the Acquired Corporations, or of Parent or its Affiliates, or to compel Parent or any of its Affiliates to dispose of or hold separate all or any portion of the business or assets of the Acquired Corporations or of Parent or its Affiliates or (iii) and (iv) above, representations and warranties that are made as seeking to impose or confirm material limitations on the ability of a particular date Parent or period shall be true and correct (in the manner set forth in clause (i), (ii), (iii) or (iv), as applicable) only as of such date or period. (b) The Company shall have performed and complied with all any of its covenants hereunder Affiliates effectively to be performed or complied with by it prior to the Effective Time in all material respects through the Closing. (c) The Company shall have delivered to Parent a certificate duly executed by the Company’s chief executive officer and chief financial officer on behalf exercise full rights of ownership of the shares of Company to the effect that each of the conditions specified above in Sections 6.2(a) and 6.2(b) is satisfied in all respectsCommon Stock. (d) Parent shall have received from L▇▇▇▇▇ & W▇▇▇▇▇▇ LLP, counsel to Parent, a written opinion dated the Closing Date to the effect that, on the basis of the facts, representations and assumptions set forth or referred to in such opinion, for United States federal income tax purposes, the Transaction will constitute a “reorganization” within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to Parent shall be entitled to rely upon assumptions, representations, warranties and covenants, including those contained in the Tax Representation Letters described in Section 5.1(l).

Conditions to Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate effect the First Merger shall also be further subject to the satisfaction or waiver of the following conditions by Parent satisfaction, at or prior to the Closing, of each of the following conditions: (a) (i) The representations and warranties of the Company set forth in Article IV (other than Sections 4.12(b) and 4.4(a)) which are qualified by a “Material Adverse Effect” qualification shall be true and correct in all respects as so qualified at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date and (ii) the representations and warranties of the Company set forth in Article IV Sections 2.3(a), 2.3(c) (other than Sections 4.12(bfirst sentence), and 2.3(d) and 4.4(a)(second sentence) which are not qualified by a “Material Adverse Effect” qualification (Capitalization) of the Agreement shall be true and correct at and have been accurate in all respects as of the date of this the Agreement and shall be accurate in all respects at and as of the Closing Date as though made at and as of the Closing Date, except for such failures to be true and correct as would not have, in the aggregate, a Material Adverse Effect on the Company, (iii) the representations and warranties set forth in Section 4.4(a) shall be true and correct in all material respects on the date hereof and on the Closing Date as if made on and as of such datesClosing Date, except (other than with respect a result of a willful breach by the Company) where the failure to be so accurate in all respects would not reasonably be expected to result in additional cost, expense or liability to the Company, Parent and their Affiliates, individually or in the aggregate that is more than $1,200,000 (it being understood that, for purposes of determining the accuracy of such representations and warranties, (i) any issuances permitted pursuant update of or modification to the Company Disclosure Schedule made or purported to have been made after the date of the Agreement shall be disregarded and (ii) the truth and correctness of those representations or warranties that address matters only as of a specific date shall be measured (subject to the applicable materiality standard as set forth in this Section 6.2(a)) only as of such date; (b) the representations and warranties of the Company set forth in Sections 2.3 (Capitalization) (other than Sections 2.3(a), 2.3(c) (first sentence) and 2.3(d) (second sentence)), 2.19 (Authority; Binding Nature of Agreement), 2.21 (Vote Required) and 2.24 (Financial Advisor) of the Agreement shall have been accurate in all material respects as of the date of the Agreement, and shall be accurate in all material respects at and as of the Closing Date as if made on and as of such Closing Date (ivit being understood that, for purposes of determining the accuracy of such representations and warranties, (i) all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded, (ii) any update of or modification to the Company Disclosure Schedule made or purported to have been made after the date of the Agreement shall be disregarded and (iii) the representation truth and correctness of those representations or warranties that address matters only as of a specific date shall be measured (subject to the applicable materiality standard as set forth in this Section 6.2(b)) only as of such date). (c) the representations and warranties of the Company set forth in Section 4.12(b2.5(b) (No Material Adverse Effect) shall be true and correct have been accurate in all respects as of the date of the Agreement and shall be accurate in all respects at and as of the Closing Date as if made on and as of such Closing Date (it being understood that any update of or modification to the Company Disclosure Schedule made or purported to have been made after the date of the Agreement shall be disregarded); (d) the representations and warranties of the Company set forth in the Agreement (other than those referred to in clauses “(a)”, “(b)” or “(c)”) above) shall have been accurate in all respects as of the date of the Agreement, and shall be accurate in all respects at and as of the Closing Date as if made on and as of such date; provided, howeverexcept that any inaccuracies in such representations and warranties will be disregarded if the circumstances giving rise to all such inaccuracies (considered collectively) do not constitute, and would not reasonably be expected to have, a Material Adverse Effect (it being understood that, with respect to clauses for purposes of determining the accuracy of such representations and warranties, (i)) all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded, (ii), ) any update of or modification to the Company Disclosure Schedule made or purported to have been made after the date of the Agreement shall be disregarded and (iii) the truth and (iv) above, correctness of those representations and or warranties that are made address matters only as of a particular specific date or period shall be true and correct measured (in subject to the manner applicable materiality standard as set forth in clause (i), (ii), (iii) or (iv), as applicableabove) only as of such date or period.date); (be) The the Company shall have performed and complied with all of its covenants hereunder to be performed or complied with by it prior to the Effective Time in all material respects through with any covenant or obligation that the Closing.Company is required to comply with or to perform under the Agreement prior to the Closing Date, or, if not complied with or performed in all material respects, such noncompliance or failure to perform shall have been cured; (cf) The Company Parent and Merger Sub shall have delivered to Parent a certificate duly received certificates executed by the Company’s chief executive officer and chief financial officer on behalf of the Company to by the effect that each chief executive officer or chief financial officer of the Company, certifying that the conditions specified above set forth in Sections 6.2(a) and 6.2(b) is satisfied in all respects. ), (b), (c), (d) Parent and (e) have been satisfied; and (g) Since the date of this Agreement, there shall not have received from L▇▇▇▇▇ & W▇▇▇▇▇▇ LLP, counsel to Parent, occurred a written opinion dated Material Adverse Effect that shall be continuing as of the Closing Date to the effect that, on the basis of the facts, representations and assumptions set forth or referred to in such opinion, for United States federal income tax purposes, the Transaction will constitute a “reorganization” within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to Parent shall be entitled to rely upon assumptions, representations, warranties and covenants, including those contained in the Tax Representation Letters described in Section 5.1(l)Date.

Conditions to Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate effect the First Merger shall also be are further subject to the satisfaction (or waiver of the following conditions by Parent at waiver, if permissible under applicable Law) on or prior to the ClosingClosing Date of the following conditions: (a) The Fundamental Representations (iother than Section 3.5(a)) The representations and warranties of the Company set forth in Article IV (other than Sections 4.12(b) and 4.4(a)) which are qualified by a “Material Adverse Effect” qualification this Agreement shall be true and correct in all material respects as so qualified at of the date hereof and as of the Closing, except the Fundamental Representations (other than Section 3.5(a)) made as of an earlier date or time, which need be true and correct only as of this Agreement such earlier date or time. Section 3.5(a) shall be true and at correct in all material respects as of the date hereof and as of the Closing Date as though Closing, except (i) for the portions of Section 3.5(a) made at and as of the Closing Date an earlier date or time, which need be true and correct only as of such earlier date or time and (ii) for breaches of Section 3.5(a) that, in the aggregate, would not result in a misrepresentation as to securities of the Company valued at less than $100,000. The representations of the Company set forth in this Agreement other than the Fundamental Representations shall be true and correct as of the date hereof and as the Closing except (i) for representations and warranties that speak as of a specific date or time (which need be true and correct only as of such date or time) and (ii) for breaches of the representations and warranties of the Company set forth in Article IV ARTICLE III (other than Sections 4.12(bthe Fundamental Representations) and 4.4(a)) which are not qualified by a “Material Adverse Effect” qualification shall be true and correct at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except for such failures to be true and correct as would not havethat, in the aggregate, would not have a Company Material Adverse Effect on the Company, (iii) the representations and warranties set forth in Section 4.4(a) shall be true and correct in all material respects on the date hereof and on the Closing Date as if made on and as of such dates, other than with respect to any issuances permitted pursuant to this Agreement, and (iv) the representation set forth in Section 4.12(b) shall be true and correct in all respects on the Closing Date as if made on and as of such date; provided, however, that, with respect to clauses (i), (ii), (iii) and (iv) above, representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clause (i), (ii), (iii) or (iv), as applicable) only as of such date or period.Effect; (b) The Company shall have performed and complied with all of its covenants hereunder to be performed or complied with by it prior to the Effective Time in all material respects through all obligations required to be performed by it under this Agreement at or prior to the Closing.Closing Date; (c) Since the date of this Agreement, here shall not be any event that is continuing that would individually, or in the aggregate, reasonably be expected to have a Company Material Adverse Effect; (d) Parent shall have received a certificate, signed by the CFO, certifying as to the matters set forth in Section 8.2(a), Section 8.2(b) and Section 8.2(c); (e) The Company shall have executed and delivered to Parent a copy of each Transaction Document to which it is a party; (f) Each Company Shareholder shall have executed and delivered to Parent the Lock-Up Agreement; (g) The Company shall have delivered to Parent a certificate duly copies of the Employment Agreements executed by the Company’s chief executive officer and chief financial officer on behalf of the Company to the effect that each of the conditions specified above in Sections 6.2(a) and 6.2(b) is satisfied in all respects.Key Employee; (dh) Parent shall have received from L▇▇▇▇▇ & W▇▇▇▇▇▇ LLPa certificate, counsel signed by an officer of the Company, certifying that true, complete and correct copies of the Organizational Documents of the Company and each of its Subsidiaries, as in effect on the Closing Date, are attached to such certificate; (i) Parent shall have received copies of third party consents set forth on Schedule 8.2(i) in form and substance reasonably satisfactory to Parent, and no such consents have been revoked and the Transaction Financing and such listing shall have been approved by Nasdaq subject to official notice of issuance; (j) The OneShop Retail Closing shall have occurred; (k) The Company shall have entered into the Collaboration Agreement and the MobilityOne Shareholders Agreement, both of which shall be in full force and effect and enforceable in accordance with their terms; (l) Parent shall have received a written opinion dated certificate, signed by an officer of the Company, certifying that true, complete and correct copies of the resolutions of the directors of the Company authorizing the execution and delivery of this Agreement and the other Transaction Documents to which it is a party and performance by the Company of the Transactions, including the Merger, having been duly and validly adopted and being in full force and effect as of the Closing Date, are attached to such certificate; and (m) The Company shall have delivered to Parent good standing certificates (or similar documents applicable for such jurisdictions) for the Company certified as of a date no earlier than twenty (20) days prior to the Closing Date from the proper Governmental Authority of the Company’s jurisdiction of organization and from each other jurisdiction in which the Company is qualified to do business as a foreign corporation or other entity as of the Closing, in each case to the effect that, on the basis of the facts, representations and assumptions set forth extent that good standing certificates or referred to similar documents are generally available in such opinion, for United States federal income tax purposes, the Transaction will constitute a “reorganization” within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to Parent shall be entitled to rely upon assumptions, representations, warranties and covenants, including those contained in the Tax Representation Letters described in Section 5.1(l)jurisdictions.

Conditions to Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate effect the First Merger shall also be subject to the satisfaction or waiver waiver, of the following conditions by Parent at or prior to the Closingconditions: (a) (i) The representations and warranties of the Company set forth contained in Article IV Sections 3.3(a), 3.4(a)-(c) (other than Sections 4.12(b) except for de minimis inaccuracies), and 4.4(a)) which are qualified by a “Material Adverse Effect” qualification 3.21 of this Agreement shall be true and correct in all respects as so qualified at of the Effective Time as though made on and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date and Effective Time, (ii) the representations and warranties of the Company set forth contained in Article IV (other than Sections 4.12(bSection 3.5(g) and 4.4(a)) which are not qualified by a “Material Adverse Effect” qualification shall be true and correct at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except for such failures to be true and correct as would not have, in the aggregate, a Material Adverse Effect on the Company, (iii) the representations and warranties set forth in Section 4.4(a) shall be true and correct in all material respects on (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect”) as of the date hereof and on the Closing Date Effective Time as if though made on and as of such dates, other than with respect to any issuances permitted pursuant to this Agreementthe Effective Time, and (iviii) all other representations and warranties of the representation set forth Company contained in Section 4.12(b) this Agreement shall be true and correct in all respects on (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect”) as of the Closing Date Effective Time as if though made on and as of the Effective Time, except where the failure of such date; provided, however, that, with respect to clauses (i), (ii), representations and warranties described in this clause (iii) to be true and (iv) abovecorrect has not had, individually or in the aggregate, a Company Material Adverse Effect; provided in each case that representations and warranties that are made as of a particular specific date or period shall need only be true and correct (subject, in the manner set forth case of the representations and warranties described in clause clauses (iii) and (iii), (ii), (iiito such qualifications) or (iv), as applicable) only as of such date or periodspecified date. (b) The Company shall have performed and complied with all of its covenants hereunder to be performed or complied with by it prior to the Effective Time in all material respects through with its obligations or covenants contained in this Agreement at or prior to the Closing. (c) Since the Agreement Date, there shall not have occurred any event that has had, or would reasonably be expected to have, a Company Material Adverse Effect. (d) The Company shall have provided to Parent a certificate dated the Closing Date signed on its behalf by the chief financial officer of the Company to the effect that the conditions set forth in Section 6.2(a), Section 6.2(b) and Section 6.2(c) have been satisfied. (e) At least two Business Days prior to Closing, the Company shall have delivered to Parent a certificate duly executed by the Company’s chief executive officer and chief financial officer on behalf payoff letter from each holder of the types of Company to the effect that each of the conditions Indebtedness specified above in Sections 6.2(aclauses (i) and 6.2(b) is satisfied in all respects. (d) Parent shall have received from L▇▇▇▇▇ & W▇▇▇▇▇▇ LLP, counsel to Parent, a written opinion dated the Closing Date to the effect that, on the basis of the facts, representations and assumptions set forth or referred to in such opinion, for United States federal income tax purposes, the Transaction will constitute a “reorganization” within the meaning of Section 368(aii) of the Code. In rendering definition of “Indebtedness” indicating that upon payment of a specific amount, such opinion, counsel to Parent Indebtedness shall be entitled paid in full and, if applicable, any related security interest shall be automatically released and Parent or its designees shall, to rely upon assumptionsthe extent applicable, representationsbe authorized to file releases of all Encumbrances relating thereto on the assets and properties of the Company, warranties and covenantsincluding, including those contained in to the Tax Representation Letters described in Section 5.1(l)extent applicable Uniform Commercial Code termination statements, or such other customary documents or endorsements necessary to evidence the release of the securities interests of all holders.

Conditions to Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate effect the First Merger shall also be are further subject to the satisfaction (or waiver of the following conditions by Parent at waiver, if permissible under applicable Law) on or prior to the ClosingClosing Date of the following conditions: (a) The Fundamental Representations (iother than Section 3.5(a)) The representations and warranties of the Company set forth in Article IV (other than Sections 4.12(b) and 4.4(a)) which are qualified by a “Material Adverse Effect” qualification this Agreement shall be true and correct in all material respects as so qualified at of the date hereof and as of the Closing, except the Fundamental Representations (other than Section 3.5(a)) made as of an earlier date or time, which need be true and correct only as of this Agreement such earlier date or time. Section 3.5(a) shall be true and at correct in all material respects as of the date hereof and as of the Closing Date as though Closing, except (i) for the portions of Section 3.5(a) made at and as of the Closing Date an earlier date or time, which need be true and correct only as of such earlier date or time and (ii) for breaches of Section 3.5(a) that, in the aggregate, would not result in a misrepresentation as to securities of the Company valued at less than $1,000,000. The representations of the Company set forth in this Agreement other than the Fundamental Representations shall be true and correct as of the date hereof and as the Closing except (i) for representations and warranties that speak as of a specific date or time (which need be true and correct only as of such date or time) and (ii) for breaches of the representations and warranties of the Company set forth in Article IV ARTICLE III (other than Sections 4.12(bthe Fundamental Representations) and 4.4(a)) which are not qualified by a “Material Adverse Effect” qualification shall be true and correct at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except for such failures to be true and correct as would not havethat, in the aggregate, would not have a Company Material Adverse Effect on the Company, (iii) the representations and warranties set forth in Section 4.4(a) shall be true and correct in all material respects on the date hereof and on the Closing Date as if made on and as of such dates, other than with respect to any issuances permitted pursuant to this Agreement, and (iv) the representation set forth in Section 4.12(b) shall be true and correct in all respects on the Closing Date as if made on and as of such date; provided, however, that, with respect to clauses (i), (ii), (iii) and (iv) above, representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clause (i), (ii), (iii) or (iv), as applicable) only as of such date or period.Effect; (b) The Company shall have performed and complied with all of its covenants hereunder to be performed or complied with by it prior to the Effective Time in all material respects through all obligations required to be performed by it under this Agreement at or prior to the Closing.Closing Date; (c) Since the date of this Agreement, here shall not be any event that is continuing that would individually, or in the aggregate, reasonably be expected to have a Company Material Adverse Effect; (d) Parent shall have received a certificate, signed by the chief executive officer or chief financial officer of the Company, certifying as to the matters set forth in Section 8.2(a), Section 8.2(b) and Section 8.2(c); (e) The Company Preferred Stock Conversion shall have been consummated; (f) The Company shall have executed and delivered to the Parent a copy of each Transaction Document to which it is a party; (g) The Stockholders set forth on Schedule 8.2(g) (the “Key Stockholders”) shall have executed and delivered to Parent the applicable Lock-Up Agreements; (h) The Company shall have delivered to Parent executed copies of the Employment Agreements; provided that this condition shall apply if and only if the Parent and the Company have mutually agreed in writing as to the key employees required to enter into such employment agreements as set forth in Section 5.3; (i) Parent shall have received a certificate, signed by an officer of the Company, certifying that true, complete and correct copies of the Organizational Documents of the Company and each of its Subsidiaries, as in effect on the Closing Date, are attached to such certificate; (j) Parent shall have received copies of third party consents set forth on Schedule 8.2(j) in form and substance reasonably satisfactory to the Parent, and no such consents have been revoked and the PIPE Financing and such listing shall have been approved by Nasdaq subject to official notice of issuance; (k) Parent shall have received a certificate, signed by an officer of the Company, certifying that true, complete and correct copies of the resolutions of the directors of the Company authorizing the execution and delivery of this Agreement and the other Transaction Documents to which it is a party and performance by the Company of the Transactions, including the Merger, having been duly and validly adopted and being in full force and effect as of the Closing Date, are attached to such certificate; and (l) The Company shall have delivered to Parent a certificate duly executed by the Company’s chief executive officer and chief financial officer on behalf of good standing with respect to the Company to the effect that each from State of the conditions specified above in Sections 6.2(a) and 6.2(b) is satisfied in all respectsDelaware. (d) Parent shall have received from L▇▇▇▇▇ & W▇▇▇▇▇▇ LLP, counsel to Parent, a written opinion dated the Closing Date to the effect that, on the basis of the facts, representations and assumptions set forth or referred to in such opinion, for United States federal income tax purposes, the Transaction will constitute a “reorganization” within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to Parent shall be entitled to rely upon assumptions, representations, warranties and covenants, including those contained in the Tax Representation Letters described in Section 5.1(l).

Conditions to Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate effect the First Merger shall also be further subject to the satisfaction or waiver of the following conditions by Parent at or prior to the ClosingEffective Time of the following conditions: (a) (i) The the representations and warranties of the Company set forth in Article IV (other than Sections 4.12(b) and 4.4(a)) which this Agreement that are qualified by a “as to Company Material Adverse Effect” qualification Effect shall be true and correct in all respects as so qualified at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date and (ii) the representations and warranties of the Company set forth in Article IV (other than Sections 4.12(b) and 4.4(a)) which this Agreement that are not so qualified by a “Material Adverse Effect” qualification shall be true and correct at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except for such failures to be true and correct as would not have, in the aggregate, a Material Adverse Effect on the Company, (iii) the representations and warranties set forth in Section 4.4(a) shall be true and correct in all material respects on respects, in each case as of the date hereof and on the Closing Date Effective Time as if though made on and as of such datesdate (unless any such representation or warranty is made only as of a specific date, other than with respect to any issuances permitted pursuant to this Agreement, in which event such representation and (iv) the representation set forth in Section 4.12(b) warranty shall be true and correct or true and correct in all respects on material respects, as the Closing Date as if made on and case may be, as of such specified date; provided, however, that, with respect to clauses (i), (ii), (iii) and (iv) above, except where the failure of any such representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth referred to in clause (i)ii) to be so true and correct, (ii)in the aggregate, (iii) or (iv), as applicable) only as of such date or period.has not had and would not reasonably be expected to have a Company Material Adverse Effect; (b) The the Company shall have performed in all material respects the obligations, and complied in all material respects with all of its covenants hereunder the agreements and covenants, required to be performed by or complied with by it under this Agreement at or prior to the Effective Time in all material respects through the Closing.Closing Date; (c) The Company Parent shall have delivered to Parent received a certificate duly executed by of the Chief Executive Officer, President or Vice President of the Company’s chief executive officer and chief financial officer on behalf of the Company to the effect , certifying that each of the conditions specified above set forth in Sections 6.2(a7.2(a) and 6.2(b(b) is satisfied in all respects.have been satisfied; and (d) Parent shall have received from L▇▇▇▇▇ the opinion, based on appropriate representations of the Company and Parent, of King & W▇▇▇▇▇▇ LLPSpalding, counsel to Parent, a written opinion dated the Closing Date to the effect that, on that the basis of the facts, representations and assumptions set forth or referred to in such opinion, Merger will be treated for United States federal income tax purposes, the Transaction will constitute purposes as a “reorganization” reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to Parent shall be entitled to rely upon assumptions, representations, warranties and covenants, including those contained in the Tax Representation Letters described in Section 5.1(l).

Conditions to Obligations of Parent and Merger Sub. The obligation respective obligations of Parent and Merger Sub to consummate effect the First Merger shall also be subject to the satisfaction or waiver of the following conditions by Parent at or prior to the ClosingEffective Time of the following conditions: (a) (i) The representations and warranties of there shall not have occurred any change, occurrence or development that, individually or in the aggregate, has had or would reasonably be expected to have, a Company set forth in Article IV (other than Sections 4.12(b) and 4.4(a)) which are qualified by a “Material Adverse Effect” qualification shall be true and correct in all respects as so qualified at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date and ; (iib) the representations and warranties of the Company set forth contained in Article IV (other than Sections 4.12(b) and 4.4(a)) which are not qualified by a “Material Adverse Effect” qualification shall be true and correct at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except for such failures to be true and correct as would not have, in the aggregate, a Material Adverse Effect on the Company, (iii) the representations and warranties set forth in Section 4.4(a) shall be true and correct in all material respects on the date hereof and on the Closing Date as if made on and as of such dates, other than with respect to any issuances permitted pursuant to this Agreement, and (iv) the representation set forth in Section 4.12(b) shall be true and correct in all respects on the Closing Date as if made on and as of such date; provided, however, that, with respect to clauses (i), (ii), (iii) and (iv) above, representations and warranties that are made as of a particular date or period shall be true and correct (without giving effect to any limitation on any representation or warranty indicated by the words “Company Material Adverse Effect”, “in all material respects”, “in any material respect”, “material”, or “materially”) at such time (except to the manner set forth extent expressly made as of an earlier date, in clause (i), (ii), (iii) or (iv), as applicable) only which case as of such date earlier date), in each case except where all failures of the representations and warranties to be so true and correct would not, or period.would not reasonably be expected to, in the aggregate, have a Company Material Adverse Effect; (bc) The the Company shall have performed in all material respects each obligation and complied in all material respects with all each agreement or covenant of its covenants hereunder the Company required to be performed or complied with by it prior to the Effective Time in all material respects through the Closing.under this Agreement; (cd) The the outstanding indebtedness of the Company as of the Closing Date shall not exceed Four Million Three Hundred Forty-Four Thousand Four Hundred Forty-Five Dollars ($4,344,445.00); provided, that, if the Closing does not occur on or before July 15, 2011, the Company shall be permitted to incur $500,000 of additional indebtedness with a per annum interest rate of not more than 12% for every 30 day period after such date; (e) the Parent shall have delivered to Parent received a certificate duly executed by the Company’s chief executive officer and chief financial officer on behalf of the Company to by the effect that each chief executive officer or chief financial officer of the Company, certifying that the conditions specified above set forth in Sections 6.2(a7.2(b)-(a) and 6.2(b) is satisfied in all respects. through (d) Parent shall have received from Lbeen satisfied; (f) each of ▇▇▇▇▇ & W▇▇▇▇▇▇▇ LLPand ▇▇▇ ▇▇▇▇▇ shall have entered into a noncompetition and nonsolicitation agreement with the Parent in form and substance reasonably acceptable to Parent and ▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇, counsel as applicable; (g) there shall not have occurred and be pending any general suspension of, or limitation on trading in securities on Nasdaq; (h) U.M. AccelMed, Limited Partnership shall have agreed in a writing acceptable to the Parent to cancel its warrants to purchase an aggregate of 4,404,772 shares of common stock of the Company; (i) The Tail Wind Fund, Ltd. and Solomon Strategic Holders, Inc. shall have agreed in a writing acceptable to Parent to cancel warrants to purchase 1,239,396 and 210,961 shares of common stock of the Company, respectively, in exchange of an aggregate amount equal to $249,000 in shares of Parent Common Stock as determined in accordance Common Exchange Ratio set forth herein; provided that if the Parent determines in its reasonable discretion that such shares may not be exempt from registration under the Federal securities laws as a result of the Fairness Hearing, than such $249,000 will be paid in cash; (j) The Tail Wind Fund, Ltd. and Solomon Strategic Holders, Inc. shall have agreed in a writing acceptable to Parent, with respect to certain convertible notes, that (i) a written opinion dated “Change in Control Transaction” (as defined in such convertible notes) will only occur upon the Closing Date closing such transaction and (ii) the 30% premium ($206,250) to the effect that, be paid upon such Change in Control Transaction will be calculated on the basis date of signing this Agreement but will be paid to The Tail Wind Fund, Ltd. and Solomon Strategic Holders, Inc. on the date of the facts, representations and assumptions set forth or referred to in such opinion, for United States federal income tax purposes, the Transaction will constitute a “reorganization” within the meaning of Section 368(a) closing of the Code. In rendering Change in Control Transaction or the date the Change in Control Transaction is terminated and 50% of such opinion30% premium will be paid in shares of Parent Common Stock as determined in accordance Common Exchange Ratio, counsel with the balance payable in cash; provided that if the Parent determines in its reasonable discretion that such shares may not be exempt from registration under the Federal securities laws as a result of the Fairness Hearing, than such 30% premium ($206,250) will be paid in cash; and (k) Mizrahi Tefahot Bank Ltd. shall have agreed in a writing acceptable to Parent shall be entitled to rely upon assumptions, representations, warranties and covenants, including those contained receive $225,000 in cash in lieu of 350,000 shares of common stock of the Tax Representation Letters described Company pursuant to a certain warrant agreement with the Company in Section 5.1(l)connection with the closing of the transactions contemplated hereby.

Conditions to Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate effect the First Merger shall also be further subject to the satisfaction or waiver of the following conditions by Parent at or prior to the ClosingEffective Time of the following conditions: (a) (i) The the representations and warranties of the Company set forth in Article IV (other than Sections 4.12(b) and 4.4(a)) which are qualified by a “Material Adverse Effect” qualification Section 3.4 shall be true and correct in all respects as so qualified at of the Effective Time as though made on and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date and such time, (ii) the representations and warranties of the Company set forth in Article IV Section 3.3(a) (other except for deviations of not more than Sections 4.12(b) and 4.4(a0.3% of the number of the Company’s outstanding Shares disclosed in Section 3.3(a)) which are not qualified by a “Material Adverse Effect” qualification shall be true and correct at as of the Effective Time as though made on and as of the date of this Agreement such time, and at and as of the Closing Date as though made at and as of the Closing Date, except for such failures to be true and correct as would not have, in the aggregate, a Material Adverse Effect on the Company, (iii) the representations and warranties of the Company set forth in Section 4.4(athis Agreement, other than those specified in the foregoing clauses (i) and (ii), shall be true and correct in all material respects on as of the date hereof and on the Closing Date Effective Time as if though made on and as of such dates, other than with respect date except where the failure of any such representations and warranties to any issuances permitted pursuant to this Agreement, and (iv) the representation set forth in Section 4.12(b) shall be so true and correct (without giving effect to any “materiality” or “Material Adverse Effect” or similar qualifiers set forth therein), individually or in all respects on the Closing Date as if made on aggregate, has not had, and as of such datewould not reasonably be expected to have, a Material Adverse Effect; provided, however, provided that, with respect to for the purposes of clauses (i), (ii), (iii) and (iv) aboveiii), representations and warranties any representation or warranty of the Company set forth in this Agreement that are is made only as of a particular specified date or period shall be required to be true and correct (in the manner set forth subject to standard specified in clause (i), (ii), (iii) or (iviii), as applicable) only as of such date or period.date; (b) The the Company shall have performed in all material respects the obligations, and complied in all material respects with all of its covenants hereunder the agreements and covenants, required to be performed by, or complied with by by, it under this Agreement at or prior to the Effective Time in all material respects through the Closing.Time; (c) The Company shall have delivered to Parent a certificate duly executed by the Company’s chief executive officer and chief financial officer on behalf of the Company to the effect that each of the conditions specified above in Sections 6.2(a) and 6.2(b) is satisfied in all respects. (d) Parent shall have received from L▇▇▇▇▇ & W▇▇▇▇▇▇ LLP, counsel to Parent, a written opinion dated the Closing Date to the effect that, on the basis certificate of the factsCo-Chief Executive Officers or the Chief Financial Officer of the Company, representations and assumptions certifying that the conditions set forth or referred to in such opinionSections 7.2(a) and (b) have been satisfied; and (d) the Company shall have filed with the SEC its Annual Report on Form 10-K for the fiscal year ended February 3, for United States federal income tax purposes, the Transaction will constitute a “reorganization” within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to Parent shall be entitled to rely upon assumptions, representations, warranties and covenants, including those contained in the Tax Representation Letters described in Section 5.1(l)2007.

Conditions to Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate effect the First Merger shall also be are further subject to the satisfaction (or waiver of the following conditions by Parent at waiver, if permissible under applicable Law) on or prior to the ClosingClosing Date of the following conditions: (a) The Fundamental Representations (iother than Section 3.5(a)) The representations and warranties of the Company set forth in Article IV (other than Sections 4.12(b) and 4.4(a)) which are qualified by a “Material Adverse Effect” qualification this Agreement shall be true and correct in all material respects as so qualified at of the date hereof and as of the Closing, except the Fundamental Representations (other than Section 3.5(a)) made as of an earlier date or time, which need be true and correct only as of this Agreement such earlier date or time. Section 3.5(a) shall be true and at correct in all material respects as of the date hereof and as of the Closing Date as though Closing, except (i) for the portions of Section 3.5(a) made at and as of the Closing Date an earlier date or time, which need be true and correct only as of such earlier date or time and (ii) for breaches of Section 3.5(a) that, in the aggregate, would not result in a misrepresentation as to securities of the Company valued at less than $250,000. The representations of the Company set forth in this Agreement other than the Fundamental Representations shall be true and correct as of the date hereof and as the Closing except (i) for representations and warranties that speak as of a specific date or time (which need be true and correct only as of such date or time) and (ii) for breaches of the representations and warranties of the Company set forth in Article IV III (other than Sections 4.12(bthe Fundamental Representations) and 4.4(a)) which are not qualified by a “Material Adverse Effect” qualification shall be true and correct at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except for such failures to be true and correct as would not havethat, in the aggregate, would not have a Company Material Adverse Effect on the Company, (iii) the representations and warranties set forth in Section 4.4(a) shall be true and correct in all material respects on the date hereof and on the Closing Date as if made on and as of such dates, other than with respect to any issuances permitted pursuant to this Agreement, and (iv) the representation set forth in Section 4.12(b) shall be true and correct in all respects on the Closing Date as if made on and as of such date; provided, however, that, with respect to clauses (i), (ii), (iii) and (iv) above, representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clause (i), (ii), (iii) or (iv), as applicable) only as of such date or period.Effect; (b) The Company shall have performed and complied with all of its covenants hereunder to be performed or complied with by it prior to the Effective Time in all material respects through all obligations required to be performed by it under this Agreement at or prior to the Closing.Closing Date; (c) Since the date of this Agreement, here shall not be any event that is continuing that would individually, or in the aggregate, reasonably be expected to have a Company Material Adverse Effect; (d) Parent shall have received a certificate, signed by the chief executive officer or chief financial officer of the Company, certifying as to the matters set forth in Section 8.2(a), Section 8.2(b) and Section 8.2(c); (e) The Company Preferred Stock Conversion shall have been consummated; (f) The Company shall have executed and delivered to the Parent a copy of each Transaction Document to which it is a party; (g) The Stockholders set forth on Schedule 8.2(g) shall have executed and delivered to Parent the applicable Lock-Up Agreements; (h) Parent shall have received a certificate, signed by an officer of the Company, certifying that true, complete and correct copies of the Organizational Documents of the Company and each of its Subsidiaries, as in effect on the Closing Date, are attached to such certificate; (i) Parent shall have received copies of third party consents set forth on Schedule 8.2(j) in form and substance reasonably satisfactory to the Parent, and no such consents have been revoked and the PIPE Financing and such listing shall have been approved by Nasdaq subject to official notice of issuance; (j) Parent shall have received a certificate, signed by an officer of the Company, certifying that true, complete and correct copies of the resolutions of the directors of the Company authorizing the execution and delivery of this Agreement and the other Transaction Documents to which it is a party and performance by the Company of the Transactions, including the Merger, having been duly and validly adopted and being in full force and effect as of the Closing Date, are attached to such certificate; and (k) The Company shall have delivered to Parent a certificate duly executed by the Company’s chief executive officer and chief financial officer on behalf of good standing with respect to the Company to the effect that each from State of the conditions specified above in Sections 6.2(a) and 6.2(b) is satisfied in all respectsDelaware. (d) Parent shall have received from L▇▇▇▇▇ & W▇▇▇▇▇▇ LLP, counsel to Parent, a written opinion dated the Closing Date to the effect that, on the basis of the facts, representations and assumptions set forth or referred to in such opinion, for United States federal income tax purposes, the Transaction will constitute a “reorganization” within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to Parent shall be entitled to rely upon assumptions, representations, warranties and covenants, including those contained in the Tax Representation Letters described in Section 5.1(l).

Conditions to Obligations of Parent and Merger Sub. The obligation -------------------------------------------------- obligations of Parent and Merger Sub to consummate effect the First Merger shall are also be subject to the satisfaction or waiver by Parent prior to the Effective Time of the following conditions conditions: (i) The Company shall have performed all of its obligations hereunder required to be performed by Parent it at or prior to the Closing: (a) (i) The representations and warranties Effective Time, except where any failure to perform would not, individually or in the aggregate, materially impair or significantly delay the consummation of the Company set forth in Article IV (other than Sections 4.12(b) and 4.4(a)) which are qualified by a “Material Adverse Effect” qualification shall be true and correct in all respects as so qualified at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date and Merger; (ii) (A) each of the representations and warranties of the Company set forth contained in Article IV (other than Sections 4.12(b) and 4.4(a)) this Agreement which are not qualified by a “Company Material Adverse Effect” qualification Effect or words of similar effect shall be true and correct at (except to the extent such representations and warranties expressly relate to a specific date or as of the date of this Agreement hereof, in which case such representations and at and as of the Closing Date as though made at and as of the Closing Date, except for such failures to warranties shall be true and correct as would of such date) and (B) each of the representation and warranties of the Company contained in this Agreement which are not have, in so qualified shall be true and correct (except to the aggregate, a Material Adverse Effect on the Company, (iii) the extent such representations and warranties set forth expressly relate to a specific date or as of the date hereof, in Section 4.4(a) which case such representations and warranties shall be true and correct in all material respects on the date hereof and on the Closing Date as if made on and as of such dates, other than with respect to any issuances permitted pursuant to this Agreement, and (iv) the representation set forth in Section 4.12(b) shall be true and correct in all respects on the Closing Date as if made on and as of such date), except for such inaccuracies as, individually or in the aggregate, would not have a Company Material Adverse Effect; and (iii) Parent and Merger Sub shall have received a certificate signed by an executive officer of the Company as to compliance with the conditions set forth in this paragraph 6.2(a); (b) Since the date of this Agreement, no event shall have occurred which has or which would reasonably be expected to have a Company Material Adverse Effect; provided, however, thatthat any change, with respect to clauses condition, event or development (i)) that primarily results from this Agreement, the Merger or the announcement thereof, (ii)) generally affecting the industries in which the Company operates, including changes due to actual or proposed changes in laws or regulations, or (iii) and (iv) above, representations and warranties that are made as of related to a particular date or period shall be true and correct (general drop in stock prices in the manner set forth United States, shall, for the purpose of this Section 6.2(b) only, be excluded in clause (i), (ii), (iii) or (iv), as applicable) only as of such date or period. (b) The determining whether a Company shall have performed and complied with all of its covenants hereunder to be performed or complied with by it prior to the Effective Time in all material respects through the Closing.Material Adverse Effect has occurred; (c) The Company Management Stockholders Agreement shall have delivered to Parent a certificate duly executed by the Company’s chief executive officer be in full force and chief financial officer on behalf of the Company to the effect that each of the conditions specified above in Sections 6.2(a) and 6.2(b) is satisfied in all respects.effect; (d) Parent shall have received All permits, licenses and other authorizations required from L▇▇▇▇▇ & W▇▇▇▇▇▇ LLPGovernmental Entities for the consummation of the Merger; except were the lack of such permits, counsel to Parentlicenses and other authorizations would not have, individually or in the aggregate, a written opinion dated Company Material Adverse Effect; (e) There shall not have been any action, proceeding, application, claim, suit, judgment or order instituted or pending, entered or enforced against, the Closing Date to Company or any subsidiary or affiliate of the Company or the Merger, by any legislative body, court, government or governmental, administrative or regulatory authority or agency which would have the effect thatof, on the basis of the factsdirectly or indirectly requiring, representations and assumptions set forth or referred being reasonably likely to result in such opinion, for United States federal income tax purposesrequiring, the Transaction will constitute a “reorganization” within the meaning Company, Parent or Merger Sub to pay damages or other litigation costs (including settlement costs and attorney's fees) that are in excess of Section 368(a) of the Code. In rendering such opinion, counsel to Parent shall be entitled to rely upon assumptions, representations, warranties and covenants, including those contained in the Tax Representation Letters described in Section 5.1(l).$3,500,000;

Conditions to Obligations of Parent and Merger Sub. The obligation Solely if the Offer Termination shall have occurred or the Acceptance Time shall not have occurred, the obligations of Parent and Merger Sub to consummate effect the First Merger shall also be further subject to the satisfaction or waiver of the following conditions by Parent satisfaction, at or prior to the Closing, of each of the following conditions: (a) (i) The representations and warranties of the Company set forth in Article IV (other than Sections 4.12(b) and 4.4(a)) which are qualified by a “Material Adverse Effect” qualification shall be true and correct in all respects as so qualified at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date and (ii) the representations and warranties of the Company set forth in Article IV Sections 3.3(a), 3.3(c) (other than Sections 4.12(bfirst sentence), and 3.3(d) and 4.4(a)(second sentence) which are not qualified by a “Material Adverse Effect” qualification (Capitalization) of the Agreement shall be true and correct at and have been accurate in all respects as of the date of this the Agreement and shall be accurate in all respects at and as of the Closing Date as though made at and as of the Closing Date, except for such failures to be true and correct as would not have, in the aggregate, a Material Adverse Effect on the Company, (iii) the representations and warranties set forth in Section 4.4(a) shall be true and correct in all material respects on the date hereof and on the Closing Date as if made on and as of such datesClosing Date, except (other than with respect a result of a willful breach by the Company) where the failure to be so accurate in all respects would not reasonably be expected to result in additional cost, expense or liability to the Company, Parent and their Affiliates, individually or in the aggregate that is more than $1,000,000 (it being understood that, for purposes of determining the accuracy of such representations and warranties, (i) any issuances permitted pursuant update of or modification to the Company Disclosure Schedule made or purported to have been made after the date of the Agreement shall be disregarded and (ii) the truth and correctness of those representations or warranties that address matters only as of a specific date shall be measured (subject to the applicable materiality standard as set forth in this Section 7.2(a)) only as of such date; (b) the representations and warranties of the Company set forth in Sections 3.3 (Capitalization) (other than Sections 3.3(a), 3.3(c) (first sentence) and 3.3(d)(second sentence), 3.19 (Authority; Binding Nature of Agreement), 3.20 (Vote Required) and 3.24 (Financial Advisor) of the Agreement shall have been accurate in all material respects as of the date of the Agreement, and shall be accurate in all material respects at and as of the Closing Date as if made on and as of such Closing Date (ivit being understood that, for purposes of determining the accuracy of such representations and warranties, (i) all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded, (ii) any update of or modification to the Company Disclosure Schedule made or purported to have been made after the date of the Agreement shall be disregarded and (iii) the representation truth and correctness of those representations or warranties that address matters only as of a specific date shall be measured (subject to the applicable materiality standard as set forth in this Section 7.2(b)) only as of such date); (c) the representations and warranties of the Company set forth in Section 4.12(b3.5(b) (No Material Adverse Effect) shall be true and correct have been accurate in all respects as of the date of the Agreement and shall be accurate in all respects at and as of the Closing Date as if made on and as of such Closing Date (it being understood that any update of or modification to the Company Disclosure Schedule made or purported to have been made after the date of the Agreement shall be disregarded); (d) the representations and warranties of the Company set forth in the Agreement (other than those referred to in clauses “(a)”, “(b)” or “(c)”) above) shall have been accurate in all respects as of the date of the Agreement, and shall be accurate in all respects at and as of the Closing Date as if made on and as of such date; provided, howeverexcept that any inaccuracies in such representations and warranties will be disregarded if the circumstances giving rise to all such inaccuracies (considered collectively) do not constitute, and would not reasonably be expected to have, a Material Adverse Effect (it being understood that, with respect to clauses for purposes of determining the accuracy of such representations and warranties, (i)) all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded, (ii), ) any update of or modification to the Company Disclosure Schedule made or purported to have been made after the date of the Agreement shall be disregarded and (iii) the truth and (iv) above, correctness of those representations and or warranties that are made address matters only as of a particular specific date or period shall be true and correct measured (in subject to the manner applicable materiality standard as set forth in clause (i), (ii), (iii) or (iv), as applicableabove) only as of such date or period.date); (be) The the Company shall have performed and complied with all of its covenants hereunder to be performed or complied with by it prior to the Effective Time in all material respects through with any covenant or obligation that the Closing.Company is required to comply with or to perform under the Agreement prior to the Closing Date, or, if not complied with or performed in all material respects, such noncompliance or failure to perform shall have been cured; (cf) The Company Parent and Merger Sub shall have delivered to Parent a certificate duly received certificates executed by the Company’s chief executive officer and chief financial officer on behalf of the Company to by the effect that each chief executive officer or chief financial officer of the Company, certifying that the conditions specified above set forth in Sections 6.2(a) and 6.2(b) is satisfied in all respects. 7.2(a), (b), (c), (d) Parent and (e) have been satisfied; and (g) Since the date of this Agreement, there shall not have received from L▇▇▇▇▇ & W▇▇▇▇▇▇ LLP, counsel to Parent, occurred a written opinion dated Material Adverse Effect that shall be continuing as of the Closing Date to the effect that, on the basis of the facts, representations and assumptions set forth or referred to in such opinion, for United States federal income tax purposes, the Transaction will constitute a “reorganization” within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to Parent shall be entitled to rely upon assumptions, representations, warranties and covenants, including those contained in the Tax Representation Letters described in Section 5.1(l)Date.

Conditions to Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate effect the First Merger shall also be are subject to the satisfaction satisfaction, or waiver of the following conditions (if permissible under applicable Law), by Parent Parent, at or prior to the ClosingEffective Time of the following additional conditions: (a) (i) The representations and warranties each of the Company set forth in Article IV (other than Sections 4.12(b) and 4.4(a)) which are qualified by a “Material Adverse Effect” qualification shall be true and correct in all respects as so qualified at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date and (ii) the representations and warranties of the Company set forth in Article IV the first sentence of Section 4.1 and in Section 4.4, Section 4.5(a)(i), Section 4.6, Section 4.10(b), Section 4.28, and Section 4.29 (other than Sections 4.12(bcollectively, the “Fundamental Representations”) and 4.4(a)) which are not qualified by a “Material Adverse Effect” qualification shall must be true and correct at in all material respects (except for the representation and warranty in Section 4.10(b), which must be true and correct in all respects) as of the date of this Agreement and at as of immediately prior to the Effective Time as though made on and as of immediately prior to the Closing Date as though made at and as of Effective Time (except to the Closing Date, except for extent that any such failures to be true and correct as would not have, in the aggregate, a Material Adverse Effect on the Company, (iii) the representations and warranties set forth expressly speak as of another date, in Section 4.4(a) shall which case such representations and warranties will be true and correct in all material respects on the date hereof and on the Closing Date as if made on and as of such datesother date), other than with respect to any issuances permitted pursuant to this Agreement, (ii) each of the representations and (iv) warranties of the representation Company set forth in Section 4.12(b4.3 (the “Capitalization Representations”) shall must be true and correct in all respects (other than de minimis inaccuracies) as of the date of this Agreement and as of immediately prior to the Effective Time as though made on and as of immediately prior to the Closing Date Effective Time (except to the extent that any such representations and warranties expressly speak as of another date, in which case such representations and warranties will be true and correct in all respects (other than de minimis inaccuracies) as of such other date) and (iii) each of the other representations and warranties of the Company set forth in this Agreement, in each case made as if none of such representations and warranties contained any qualifications or limitations as to “materiality,” “Material Adverse Effect” or similar qualification, must be true and correct as of the date of this Agreement and as of immediately prior to the Effective Time as though made on and as of such date; provided, however, that, with respect time (except to clauses (i), (ii), (iii) and (iv) above, the extent that any such representations and warranties that are made expressly speak as of a particular date or period shall another date, in which case such representations and warranties will be true and correct (in the manner set forth in clause (i), (ii), (iii) or (iv), as applicable) only as of such date or period.other date), except where the failure of such representations and warranties to be true and correct as so made had not had and would not reasonably be expected to have a Material Adverse Effect; (b) The the Company shall must have performed and or complied in all material respects with all of its covenants hereunder covenants, obligations and agreements required to be performed by it or complied with by it under this Agreement at or prior to the Effective Time in all material respects through the Closing.Time; (c) The Company shall have delivered there must not be pending or threatened in writing any Proceeding with respect to Parent which any Governmental Authority is or has threatened in writing to become a certificate duly executed by party (i) seeking to restrain or prohibit the consummation of the Merger, or seeking to obtain from the Company’s chief executive officer , Parent, Merger Sub or any other Affiliate of Parent any damages that are material in relation to the Company and chief financial officer on behalf the Company Subsidiaries, taken as a whole, (ii) seeking to impose any Burdensome Condition, or (iii) otherwise inquiring into the compliance of the Company to Merger with applicable Competition Laws or Foreign Investment Laws; provided, that the effect Parties acknowledge and agree that each a Party’s receipt of the conditions specified above in Sections 6.2(a) and 6.2(b) is satisfied in all respects.a Specified FTC Letter shall not constitute a pending or threatened Proceeding for purposes of this Section 8.2(c); (d) no Material Adverse Effect must have occurred and no Changes must have occurred that would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; and (e) Parent shall must have received from L▇▇▇▇▇ & W▇▇▇▇▇▇ LLP, counsel to Parent, a written opinion dated the Closing Date to the effect that, on the basis certificate of the facts, representations and assumptions chief executive officer or the chief financial officer of the Company certifying the matters set forth or referred to in such opinion, for United States federal income tax purposes, the Transaction will constitute a “reorganization” within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to Parent shall be entitled to rely upon assumptions, representations, warranties and covenants, including those contained in the Tax Representation Letters described in Section 5.1(l8.2(a), Section 8.2(b), and Section 8.2(d).

Conditions to Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate effect the First Merger shall are also be subject to the satisfaction or waiver of the following conditions (where permissible pursuant to applicable Law) by Parent ▇▇▇▇▇▇ and Merger Sub at or prior to the ClosingClosing of the following conditions: (a) (i) The representations and warranties of the Company (other than in Section 3.1 (Corporate Organization), Sections 3.2 (Capitalization), Section 3.3 (Authority; Execution and Delivery; Enforceability), Section 3.4(a)(i), (No Conflicts with Organizational Documents), Section 3.5(e) (Indebtedness), the last sentence of Section 3.6 (No Company Material Adverse Effect) and Section 3.21(a) (Broker’s Fees)) set forth in Article IV 3 of this Agreement shall be true and correct in all respects (other than Sections 4.12(b) and 4.4(a)) which are qualified without giving effect to any limitation indicated by a the words “Company Material Adverse Effect,” qualification “in all material respects,” “in any material respect,” “material,” or “materially”) as of the date of this Agreement (provided that, to the extent that any failure of such representations and warranties to be so true as of the date of this Agreement is cured in full prior to the Closing Date, such failure shall not be considered a failure of the condition in this Section 6.2(a)(i)) and as of the Closing Date, as if made at and as of such date (except those representations and warranties that address matters only as of a particular date, which shall be true and correct in all respects as of that date), except where the failure of such representations and warranties to be so qualified at true and as of correct would not have or reasonably be expected to have, individually or in the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date and aggregate, a Company Material Adverse Effect; (ii) the representations and warranties of the Company set forth contained in Article IV the first sentence of Section 3.2(a) (other than Sections 4.12(bCapitalization) and 4.4(a)) which are not qualified by a “Material Adverse Effect” qualification shall be true and correct at and (other than de minimis inaccuracies) as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except for as if made at and as of such failures to date; (iii) the representation set forth in the last sentence of Section 3.6 (No Company Material Adverse Effect) shall be true and correct in all respects as would not have, in of the aggregate, a Material Adverse Effect on the Company, date of this Agreement; and (iiiiv) the representations and warranties set forth contained in Section 4.4(a3.1 (Corporate Organization), Sections 3.2 (other than the first sentence of Section 3.2(a)) (Capitalization), Section 3.3 (Authority; Execution and Delivery; Enforceability), Section 3.4(a)(i) (No Conflicts with Organizational Documents), Section 3.5(e) (Indebtedness) and Section 3.21(a) (Broker’s Fees) shall be true and correct in all material respects on (without giving effect to any limitation indicated by the words “Company Material Adverse Effect,” “in all material respects,” “in any material respect,” “material,” or “materially”) as of the date hereof of this Agreement and on as of the Closing Date Date, as if made on at and as of such dates, other than with respect to any issuances permitted pursuant to this Agreement, and date (iv) the representation set forth in Section 4.12(b) shall be true and correct in all respects on the Closing Date as if made on and as of such date; provided, however, that, with respect to clauses (i), (ii), (iii) and (iv) above, except those representations and warranties that are made address matters only as of a particular date or period date, which shall be so true and correct (in the manner set forth in clause (i), (ii), (iii) or (iv), as applicable) only as of such date or period.that date); (b) The Company shall have performed in all material respects all obligations, and complied in all material respects with all of its covenants hereunder the agreements and covenants, in this Agreement required to be performed by or complied with by it at or prior to the Effective Time in all material respects through the Closing.; (c) No Company Material Adverse Effect shall have occurred since the date hereof and be continuing; (▇) ▇▇▇▇▇▇ will have received a certificate, signed by the chief executive officer or chief financial officer of the Company, certifying as to the matters set forth in Section 6.2(a), Section 6.2(b) and Section 6.2(c) hereof; and (e) The Company shall have delivered to Parent a certificate duly an executed by the Company’s chief executive officer and chief financial officer on behalf Payoff Letter in respect of the Company to the effect that each of the conditions specified above in Sections 6.2(a) and 6.2(b) is satisfied in all respectsCredit Agreement. (d) Parent shall have received from L▇▇▇▇▇ & W▇▇▇▇▇▇ LLP, counsel to Parent, a written opinion dated the Closing Date to the effect that, on the basis of the facts, representations and assumptions set forth or referred to in such opinion, for United States federal income tax purposes, the Transaction will constitute a “reorganization” within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to Parent shall be entitled to rely upon assumptions, representations, warranties and covenants, including those contained in the Tax Representation Letters described in Section 5.1(l).

Conditions to Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate effect the First Merger shall also be subject to the satisfaction or waiver waiver, of the following conditions by Parent at or prior to the Closingconditions: (a) (i) The representations and warranties of the Company set forth in Article IV contained in: (other than i) Sections 4.12(b) 3.1, 3.3(a), 3.25 and 4.4(a)) which are qualified by a “Material Adverse Effect” qualification 3.26 shall be true and correct in all respects as so qualified at of the Agreement Date and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date and (ii) the representations and warranties of the Company set forth in Article IV (other than Sections 4.12(b) and 4.4(a)) which are not qualified by a “Material Adverse Effect” qualification shall be true and correct at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing DateEffective Time, except for to the extent such failures representation and warranty expressly relates to be true and correct as would not have, an earlier time (in the aggregate, a Material Adverse Effect on the Company, (iii) the representations and warranties set forth in Section 4.4(a) shall be true and correct in all material respects on the date hereof and on the Closing Date as if made which case on and as of such datesearlier time); (ii) Sections 3.4(a), other than with respect to any issuances permitted pursuant to this Agreement, 3.4(b) and (iv) the representation set forth in Section 4.12(b3.4(c) shall be true and correct in all respects on as of the Closing Agreement Date and as if of the Effective Time (except for any inaccuracies in such representations and warranties that do not individually or in the aggregate increase the aggregate consideration required to be paid by Parent and/or Merger Sub under Article II by more than a de minimis amount); and (iii) any other representation and warranty of the Company set forth in this Agreement shall be true and correct as of the Effective Time as though made on and as of the Effective Time (other than such date; provided, however, that, with respect to clauses (i), (ii), (iii) and (iv) above, representations and warranties that are made as of a particular date or period shall specific date, which need only be true and correct (as of such specified date), except in the manner set forth in case of this clause (i), (ii), (iii) where the failure of such representations and warranties, individually or (iv)in the aggregate, as applicable) only to be true and correct as of such date the Effective Time (without giving effect to any limitation as to “materiality” or period“Company Material Adverse Effect”) has not had a Company Material Adverse Effect. (b) The Company shall have performed and complied with all of its covenants hereunder to be performed or complied with by it prior to the Effective Time in all material respects through its obligations and covenants contained in this Agreement at or prior to the Closing. (c) Since the Agreement Date, there shall not have occurred any event that has had, or would reasonably be expected to have, a Company Material Adverse Effect. (d) The Company shall have delivered to Parent a statement described in Treasury Regulations Section 1.1445-2(c)(3) certifying that none of the interests in the Company being acquired pursuant to this Agreement are U.S. real property interests for purposes of Code Section 1445. (e) The Company shall have provided to Parent a certificate duly executed dated the Closing Date signed on its behalf by the Company’s chief executive officer and chief financial officer on behalf of the Company to the effect that each of the conditions specified above set forth in Sections Section 6.2(a), Section 6.2(b) and 6.2(bSection 6.2(c) is satisfied in all respectshave been satisfied. (d) Parent shall have received from L▇▇▇▇▇ & W▇▇▇▇▇▇ LLP, counsel to Parent, a written opinion dated the Closing Date to the effect that, on the basis of the facts, representations and assumptions set forth or referred to in such opinion, for United States federal income tax purposes, the Transaction will constitute a “reorganization” within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to Parent shall be entitled to rely upon assumptions, representations, warranties and covenants, including those contained in the Tax Representation Letters described in Section 5.1(l).

Conditions to Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the First Merger shall also be are further subject to the satisfaction (or waiver of the following conditions by Parent Parent, if permissible under Law) at or prior to the ClosingClosing of the following conditions: (a) (i) The the representations and warranties of the Company contained in each of Section 4.2(a) and (b) (Capitalization) (except for any de minimis inaccuracies therein), Section 4.3 (Authorization; Validity of the Agreement; Company Action), Section 4.4 (Consents and Approvals; No Violations), Section 4.19 (Brokers and Finders), Section 4.20 (Vote Required), Section 4.21 (Company Board Recommendation), and Section 4.23 (State Takeover Statutes) shall be true and accurate in all respects both when made and as of the Closing Date as though made on and as of the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such date), and (ii) all other representations and warranties of the Company set forth in Article IV (other than Sections 4.12(b) and 4.4(a)) which are qualified by a “Material Adverse Effect” qualification shall be true and correct accurate in all respects as so qualified at and as of the date of this Agreement and at (without giving effect to any materiality or material adverse effect qualifications contained therein) both when made and as of the Closing Date as though made at on and as of the Closing Date and (ii) except to the extent expressly made as of an earlier date, in which case as of such date), except where the failure of such other representations and warranties of the Company set forth in Article IV (other than Sections 4.12(b) and 4.4(a)) which are not qualified by a “Material Adverse Effect” qualification shall to be so true and correct at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Dateaccurate would not, except for such failures to be true and correct as would not have, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect on the Company, (iii) the representations and warranties set forth in Section 4.4(a) shall be true and correct in all material respects on the date hereof and on the Closing Date as if made on and as of such dates, other than with respect to any issuances permitted pursuant to this Agreement, and (iv) the representation set forth in Section 4.12(b) shall be true and correct in all respects on the Closing Date as if made on and as of such date; provided, however, that, with respect to clauses (i), (ii), (iii) and (iv) above, representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clause (i), (ii), (iii) or (iv), as applicable) only as of such date or period.Effect; (b) The the Company shall have have, in all material respects, performed and or complied with all of its agreements or covenants hereunder required to be performed or complied with by it under this Agreement at or prior to the Effective Time in all material respects through the Closing.Time; (c) The since the date of this Agreement, no Company Material Adverse Effect shall have occurred; (d) the Company shall have delivered to Parent a certificate duly executed certificate, dated the Closing Date, signed by the Company’s chief executive an officer and chief financial officer on behalf of the Company certifying to the effect that each the conditions set forth in Sections 7.2(a), (b) and (c) have been satisfied; and (e) Except as disclosed on Schedule 4.10, there shall not be pending or, to the Knowledge of the conditions specified above in Sections 6.2(a) and 6.2(b) is satisfied in all respectsCompany, threatened any Legal Proceeding that could reasonably be expected to have a Company Material Adverse Effect, not otherwise covered by insurance, following the Closing. (d) Parent shall have received from L▇▇▇▇▇ & W▇▇▇▇▇▇ LLP, counsel to Parent, a written opinion dated the Closing Date to the effect that, on the basis of the facts, representations and assumptions set forth or referred to in such opinion, for United States federal income tax purposes, the Transaction will constitute a “reorganization” within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to Parent shall be entitled to rely upon assumptions, representations, warranties and covenants, including those contained in the Tax Representation Letters described in Section 5.1(l).

Conditions to Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate effect the First Merger shall also be further subject to the satisfaction or waiver of the following conditions by Parent at or prior to the ClosingEffective Time of the following conditions: (a) (i) The representations and warranties each of the Company set forth in Article IV (other than Sections 4.12(b) and 4.4(a)) which are qualified by a “Material Adverse Effect” qualification shall be true and correct in all respects as so qualified at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date and (ii) the representations and warranties of the Company set forth in Article IV Section 3.1 (other than Sections 4.12(bOrganization and Qualification; Subsidiaries), Section 3.2 (Certificate of Incorporation and Bylaws), Section 3.3(a) (Capitalization), Section 3.4 (Authority), Section 3.5 (No Conflict; Required Filings and Consents) and 4.4(a)Section 3.25 (Brokers) which are not qualified by a “Material Adverse Effect” qualification shall be true and correct at and accurate in all respects, in each case, as of the date of this Agreement and at and as of the Closing Date date of the Condition Satisfaction as though if made at and as of the Closing Datesuch time (unless any such representation or warranty is made only as of a specific date, except for in which event such failures to representation and warranty shall be so true and correct accurate as would not have, in of such specified date); and (ii) each of the aggregate, a Material Adverse Effect on the Company, (iii) the other representations and warranties set forth in Section 4.4(a) of the Company shall be true and correct accurate (disregarding any qualifications as to materiality or Material Adverse Effect contained therein), in all material respects on each case, as of the date hereof of this Agreement and on as of the Closing Date date of the Condition Satisfaction as if though made on and as of such datesdate (unless any such representation or warranty is made only as of a specific date, other than with respect to any issuances permitted pursuant to this Agreement, in which event such representation and (iv) the representation set forth in Section 4.12(b) warranty shall be so true and correct in all respects on the Closing Date as if made on and accurate as of such specified date; provided, however, that, with respect to clauses (i), (ii), (iii) and (iv) above, except where the failure of any such representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth referred to in clause (i)ii) to be so true and accurate, (ii)has not had and would not, (iii) individually or (iv)in the aggregate, as applicable) only as of such date or period.reasonably be expected to have, a Material Adverse Effect; (b) The the Company shall have performed in all material respects the obligations, and complied in all material respects with all of its covenants hereunder the agreements and covenants, required to be performed by, or complied with by by, it under this Agreement at or prior to the Effective Time Time; provided that a breach of Section 5.1 that occurs after the date of the Condition Satisfaction and prior to the Closing shall not result in all material respects through the Closing.failure of the condition contained in this Section 7.2(b) unless such breach of Section 5.1 occurred as a result of the Company’s gross negligence, willful misconduct or willful or intentional breach; (c) The Company shall have delivered to Parent a certificate duly executed by since the Company’s chief executive officer date of this Agreement and chief financial officer on behalf of the Company prior to the effect date that each of the conditions specified above in Sections 6.2(a) and 6.2(b) is satisfied in all respects. (d) Parent shall have received from L▇▇▇▇▇ & W▇▇▇▇▇▇ LLP, counsel to Parent, a written opinion dated the Closing Date to the effect that, on the basis of the facts, representations and assumptions set forth or referred to in such opinion, for United States federal income tax purposes, the Transaction will constitute a “reorganization” within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to Parent shall be entitled to rely upon assumptions, representations, warranties and covenants, including those contained in the Tax Representation Letters described in Section 5.1(l).two

Conditions to Obligations of Parent and Merger Sub. The obligation of Parent and Merger Sub to consummate the First Merger shall also be subject to the satisfaction or waiver of the following conditions by Parent at or prior to the ClosingEffective Time of the following conditions: (a) (i) The representations and warranties of the Company set forth in in: (i) Article IV (other than in the case of the representations and warranties contained in Sections 4.12(b4.4(a) and 4.4(a(b) and 4.12(a)) which are qualified by a “), disregarding all qualifications and exceptions contained therein relating to materiality, Material Adverse Effect” qualification Effect or words of similar import, shall be true and correct in all respects as so qualified at and as of on the date of this Agreement hereof and at and as of the Closing Date as though made at and as of the Closing Date and (ii) the representations and warranties of the Company set forth in Article IV (other than Sections 4.12(b) and 4.4(a)) which are not qualified by a “Material Adverse Effect” qualification shall be true and correct at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except for such failures to be true and correct as would not have, in the aggregate, a Material Adverse Effect on the Company, (iii) the representations and warranties set forth in Section 4.4(a) shall be true and correct in all material respects on the date hereof and on the Closing Date as if made on and as of such datesdates (except for representations and warranties that are made as of a specified date, other than which shall be true and correct only as of such specified date), with respect only such exceptions as would not, individually or in the aggregate, have or reasonably be expected to any issuances permitted pursuant to this Agreement, have a Material Adverse Effect on MUSA; (ii) Sections 4.4(a) and (ivb) shall be true and correct on the representation set forth date hereof and at and as of the Closing Date as if made on and as of such dates (except for representations and warranties that are made as of a specified date, which shall be true and correct only as of such specified date) with only such exceptions as would not, individually or in the aggregate, (A) result or reasonably be expected to result in the payment of additional amounts under Article II hereof in excess of $100,000 or (B) impose any other liability on Parent, Merger Sub or the Surviving Corporation; and (iii) Section 4.12(b4.12(a) shall be true and correct in all respects on the date hereof and at and as of the Closing Date as if made on and as of such date; provided, however, that, with respect to clauses (i), (ii), (iii) and (iv) above, representations and warranties that are made as of a particular the date or period shall be true and correct (in the manner set forth in clause (i), (ii), (iii) or (iv), as applicable) only as of such date or periodhereof. (b) The Company MUSA shall have performed and complied with all of its covenants hereunder to be performed or complied with by it prior to the Effective Time in all material respects through the Closing, except to the extent that such covenants are qualified by terms such as "material" or "Material Adverse Effect," in which case MUSA shall have performed and complied with all of such covenants in all respects through the Closing. (c) The Company MUSA shall have delivered to Parent a certificate duly executed by the Company’s chief executive officer and chief financial an authorized officer on behalf of the Company MUSA to the effect that each of the conditions specified above in Sections 6.2(a) and 6.2(b(b) is satisfied in all respects. (d) Parent The Debt Financing shall have received been obtained by Parent and Merger Sub on the terms and conditions set forth in the Debt Financing Agreement, or alternative financing (sufficient, when taken together with the proceeds from Lthe Equity Financing, to pay the Required Amounts) as provided in Section 5.2(b) shall have been obtained. (e) The Employment Agreement shall not have been terminated and shall remain in full force and effect as of the Closing Date; provided, however, that a termination of the Employment Agreement or a failure of the Employment Agreement to remain in full force and effect as of the Closing Date shall not be deemed to be a failure of the condition set forth in this Section 6.2(e) if such termination or failure to remain in full force and effect is solely a result of (i) Lourenco Goncalves being unable to perform his duties thereunder ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ & Wor Disability (as defined in the Employment Agreement), (ii) Lourenco Goncalves's termination thereunder "without Cause" (as ▇▇▇▇▇▇▇ LLP, counsel to Parent, ▇▇ ▇▇▇ ▇▇▇▇▇yment Agreement) or "without Good Reason" (as defined in the Employment Agreement) or (iii) a written opinion dated commission of an act by Lourenco Goncalves which would not have constituted Cause under ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇eement if the Closing Date to word "significantly" preceded the effect that, on the basis of the facts, representations and assumptions set forth or referred to words "adversely impact" in such opinion, for United States federal income tax purposes, the Transaction will constitute a “reorganization” within the meaning of Section 368(a3(b)(viii) of the Code. In rendering such opinion, counsel to Parent shall be entitled to rely upon assumptions, representations, warranties and covenants, including those contained in the Tax Representation Letters described in Section 5.1(l)Employment Agreement.

Conditions to Obligations of Parent and Merger Sub. The obligation of Parent and Merger Sub to consummate the First Merger shall also be subject to the satisfaction or waiver of the following conditions by Parent at or prior to the Closing: (a) (i) The representations and warranties of the Company set forth in Article IV (other than Sections 4.12(b) and 4.4(a)) which are qualified by a “Material Adverse Effect” qualification shall be true and correct in all respects as so qualified at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date and (ii) the representations and warranties of the Company set forth in Article IV (other than Sections 4.12(b) and 4.4(a)) which are not qualified by a “Material Adverse Effect” qualification shall be true and correct at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except for such failures to be true and correct as would not have, in the aggregate, a Material Adverse Effect on the Company, (iii) the representations and warranties set forth in Section 4.4(a) shall be true and correct in all material respects on the date hereof and on the Closing Date as if made on and as of such dates, other than with respect to any issuances permitted pursuant to this Agreement, and (iv) the representation set forth in Section 4.12(b) shall be true and correct in all respects on the Closing Date as if made on and as of such date; provided, however, that, with respect to clauses (i), (ii), (iii) and (iv) above, representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clause (i), (ii), (iii) or (iv), as applicable) only as of such date or period. (b) The Company shall have performed and complied with all of its covenants hereunder to be performed or complied with by it prior to the Effective Time in all material respects through the Closing. (c) The Company shall have delivered to Parent a certificate duly executed by the Company’s chief executive officer and chief financial officer on behalf of the Company to the effect that each of the conditions specified above in Sections 6.2(a) and 6.2(b) is satisfied in all respects. (d) Parent shall have received from L▇▇▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, counsel to Parent, a written opinion dated the Closing Date to the effect that, on the basis of the facts, representations and assumptions set forth or referred to in such opinion, for United States federal income tax purposes, the Transaction will constitute a “reorganization” within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to Parent shall be entitled to rely upon assumptions, representations, warranties and covenants, including those contained in the Tax Representation Letters described in Section 5.1(l).

Conditions to Obligations of Parent and Merger Sub. The obligation Solely if the Offer Termination shall have occurred or the Acceptance Time shall not have occurred, the obligations of Parent and Merger Sub to consummate effect the First Merger shall also be further subject to the satisfaction or waiver of the following conditions by Parent satisfaction, at or prior to the Closing, of each of the following conditions: (a) (i) The representations and warranties of the Company set forth in Article IV (other than Sections 4.12(b) and 4.4(a)) which are qualified by a “Material Adverse Effect” qualification shall be true and correct in all respects as so qualified at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date and (ii) the representations and warranties of the Company set forth in Article IV Sections 3.3(a), 3.3(c) (other than Sections 4.12(bfirst sentence), and 3.3(d) and 4.4(a)(second sentence) which are not qualified by a “Material Adverse Effect” qualification (Capitalization) of the Agreement shall be true and correct at and have been accurate in all respects as of the date of this the Agreement and shall be accurate in all respects at and as of the Closing Date as though made at and as of the Closing Date, except for such failures to be true and correct as would not have, in the aggregate, a Material Adverse Effect on the Company, (iii) the representations and warranties set forth in Section 4.4(a) shall be true and correct in all material respects on the date hereof and on the Closing Date as if made on and as of such datesClosing Date, except (other than with respect a result of a willful breach by the Company) where the failure to be so accurate in all respects would not reasonably be expected to result in additional cost, expense or liability to the Company, Parent and their Affiliates, individually or in the aggregate that is more than $1,000,000 (it being understood that, for purposes of determining the accuracy of such representations and warranties, (i) any issuances permitted pursuant update of or modification to the Company Disclosure Schedule made or purported to have been made after the date of the Agreement shall be disregarded and (ii) the truth and correctness of those representations or warranties that address matters only as of a specific date shall be measured (subject to the applicable materiality standard as set forth in this Section 7.2(a)) only as of such date; (b) the representations and warranties of the Company set forth in Sections 3.3 (Capitalization) (other than Sections 3.3(a), 3.3(c) (first sentence) and 3.3(d) (second sentence)), 3.19 (Authority; Binding Nature of Agreement), 3.21 (Vote Required) and 3.24 (Financial Advisor) of the Agreement shall have been accurate in all material respects as of the date of the Agreement, and shall be accurate in all material respects at and as of the Closing Date as if made on and as of such Closing Date (ivit being understood that, for purposes of determining the accuracy of such representations and warranties, (i) all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded, (ii) any update of or modification to the Company Disclosure Schedule made or purported to have been made after the date of the Agreement shall be disregarded and (iii) the representation truth and correctness of those representations or warranties that address matters only as of a specific date shall be measured (subject to the applicable materiality standard as set forth in this Section 7.2(b)) only as of such date); (c) the representations and warranties of the Company set forth in Section 4.12(b3.5(b) (No Material Adverse Effect) shall be true and correct have been accurate in all respects as of the date of the Agreement and shall be accurate in all respects at and as of the Closing Date as if made on and as of such Closing Date (it being understood that any update of or modification to the Company Disclosure Schedule made or purported to have been made after the date of the Agreement shall be disregarded); (d) the representations and warranties of the Company set forth in the Agreement (other than those referred to in clauses “(a)”, “(b)” or “(c)”) above) shall have been accurate in all respects as of the date of the Agreement, and shall be accurate in all respects at and as of the Closing Date as if made on and as of such date; provided, howeverexcept that any inaccuracies in such representations and warranties will be disregarded if the circumstances giving rise to all such inaccuracies (considered collectively) do not constitute, and would not reasonably be expected to have, a Material Adverse Effect (it being understood that, with respect to clauses for purposes of determining the accuracy of such representations and warranties, (i)) all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded, (ii), ) any update of or modification to the Company Disclosure Schedule made or purported to have been made after the date of the Agreement shall be disregarded and (iii) the truth and (iv) above, correctness of those representations and or warranties that are made address matters only as of a particular specific date or period shall be true and correct measured (in subject to the manner applicable materiality standard as set forth in clause (i), (ii), (iii) or (iv), as applicableabove) only as of such date or period. (b) The Company shall have performed and complied with all of its covenants hereunder to be performed or complied with by it prior to the Effective Time in all material respects through the Closing. (c) The Company shall have delivered to Parent a certificate duly executed by the Company’s chief executive officer and chief financial officer on behalf of the Company to the effect that each of the conditions specified above in Sections 6.2(a) and 6.2(b) is satisfied in all respects. (d) Parent shall have received from L▇▇▇▇▇ & W▇▇▇▇▇▇ LLP, counsel to Parent, a written opinion dated the Closing Date to the effect that, on the basis of the facts, representations and assumptions set forth or referred to in such opinion, for United States federal income tax purposes, the Transaction will constitute a “reorganization” within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to Parent shall be entitled to rely upon assumptions, representations, warranties and covenants, including those contained in the Tax Representation Letters described in Section 5.1(ldate).;