Common use of Agreements and Documents Clause in Contracts

Agreements and Documents. Parent and Merger Sub shall have received the following agreements and documents, each of which shall be in full force and effect: (a) the statement referred to in Section 5.16(b), executed by the Company; (b) a letter from KPMG Peat Marwick LLP, dated as of the Closing Date and addressed to Parent and the Company, reasonably satisfactory in form and substance to Parent and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, to the effect that, after reasonable investigation, KPMG Peat Marwick LLP is not aware of any fact concerning the Company or any of the Company's shareholders or affiliates that could preclude Parent from accounting for the Merger as a "pooling of interests" in accordance with GAAP, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC; (c) a letter from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, dated as of the Closing Date and addressed to Parent, reasonably satisfactory in form and substance to Parent, to the effect that, after reasonable investigation, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is not aware of any fact concerning Parent or any of Parent's stockholders or affiliates that could preclude Parent from accounting for the Merger as a "pooling of interests" in accordance with GAAP, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC; (d) a legal opinion of ▇▇▇▇▇▇ Godward LLP, dated as of the Closing Date and addressed to Parent, to the effect that the Merger will constitute a reorganization within the meaning of Section 368 of the Code (it being understood that, in rendering such opinion, ▇▇▇▇▇▇ Godward LLP may rely upon the tax representation letters referred to in Section 5.13); (e) a certificate executed on behalf of the Company by its Chief Executive Officer confirming that the conditions set forth in Sections 6.1, 6.2, 6.4, 6.5, 6.7 and 6.8 have been duly satisfied; and (f) the written resignations of all officers and directors of the Company, effective as of the Effective Time.

Agreements and Documents. Parent and Merger Sub the Company shall have received the following agreements and documents, each of which shall be in full force and effect: (aA) Employment Agreement and Noncompetition Agreement in the form of EXHIBITS H and I, executed respectively, by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇; (B) Employment and Noncompetition Agreement in the form of EXHIBIT J, executed by ▇▇▇▇▇ ▇. ▇▇▇▇ (C) Release in the form of EXHIBIT K, executed by the Shareholder; (D) confidential information and assignment agreements, reasonably satisfactory in form and content to Parent, executed by those employees listed in PART 6.4(D) of the Disclosure Schedule; (E) the statement referred to in Section 5.16(bSECTION 5.6(A), executed by the Company; (bF) a letter from KPMG Peat Marwick LLPContinuity of Interest Certificates in the form of EXHIBIT G, executed by the Shareholder; (G) an estoppel certificate, dated as of a date not more than five days prior to the Closing Date and addressed to Parent and the Company, reasonably satisfactory in form and substance content to Parent Parent, executed by 114 Executive Park Trust (the "Landlord") and an Amendment to Commercial Lease, dated January 5, 1996, between the Company and the Landlord satisfactory in form and content to Parent; (H) a legal opinion of ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ & Branch, Professional Association, dated as of the Closing Date, in the form of EXHIBIT L; (I) a letter from Price Waterhouse LLP, dated as of the Closing Date, confirming that no transaction entered into by the Company, and no other fact or circumstance relating to the effect thatCompany, after reasonable investigation, KPMG Peat Marwick LLP is not aware of any fact concerning the Company or any of the Company's shareholders or affiliates that could preclude will prevent Parent from accounting for the Merger as a "pooling of interests" in accordance with GAAPgenerally accepted principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC; (cJ) a letter from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, dated certificate executed by the Shareholder and containing the representation and warranty of the Shareholder that each of the representations and warranties set forth in Section 2 is accurate in all material respects as of the Closing Date and addressed to Parent, reasonably satisfactory in form and substance to Parent, to the effect that, after reasonable investigation, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is not aware of any fact concerning Parent or any of Parent's stockholders or affiliates that could preclude Parent from accounting for the Merger as a "pooling of interests" in accordance with GAAP, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC; (d) a legal opinion of ▇▇▇▇▇▇ Godward LLP, dated as of if made on the Closing Date and addressed to Parent, to the effect that the Merger will constitute a reorganization within the meaning of Section 368 of the Code (it being understood that, in rendering such opinion, ▇▇▇▇▇▇ Godward LLP may rely upon the tax representation letters referred to in Section 5.13); (e) a certificate executed on behalf of the Company by its Chief Executive Officer confirming that the conditions set forth in Sections 6.1, 6.2, 6.4, 6.5, 6.7 6.2 and 6.8 6.3 have been duly satisfiedsatisfied (the "Shareholder's Closing Certificate"); and (fK) the written resignations of all officers and directors of the CompanyCompany and the Subsidiary, effective as of the Effective Time.

Agreements and Documents. Parent and Merger Sub the Company shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Agreements in the statement referred to in Section 5.16(b)form of Exhibit C, executed by each Person who is reasonably determined by the CompanyCompany to be an "affiliate" of the Company (as that term is used in Rule 145 promulgated under the Securities Act); (b) Continuity of Interest Certificates in the form of Exhibit D, executed by ▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇; (c) the Employment Agreements referred to in the second sentence of Section 5.12, executed by the individuals identified in Part 5.12A of the Company Disclosure Schedule; (d) the Noncompetition Agreements referred to in the first sentence of Section 5.12, executed by the individuals identified in Part 5.12B of the Company Disclosure Schedule; (e) a letter from KPMG Peat Marwick Ernst & Young LLP, dated as of the Closing Date and addressed to Parent Parent, reasonably satisfactory in form and substance to Parent, updating the letter referred to in Section 5.11; (f) the statement referred to in Section 5.16(a), executed by the Company; (g) a letter from Ernst & Young LLP, dated as of the Closing Date and addressed to Parent, the Company and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, reasonably satisfactory in form and substance to Parent and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, to the effect that, after reasonable investigation, KPMG Peat Marwick Ernst & Young LLP is not aware of any fact concerning the Company or any of the Company's shareholders stockholders or affiliates that could preclude Parent from accounting for the Merger as a "pooling of interests" in accordance with GAAPgenerally accepted accounting principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC; (ch) a letter from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, dated as of the Closing Date and addressed to Parent, reasonably satisfactory in form and substance to Parent, to the effect that, after reasonable investigation, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is not aware of any fact concerning that Parent or any of Parent's stockholders or affiliates that could preclude Parent from accounting may account for the Merger as a "pooling of interests" in accordance with GAAPgenerally accepted accounting principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC; (di) a legal opinion of Fenwick & West LLP, dated as of the Closing Date, reasonably satisfactory in form and substance to Parent; (j) a legal opinion of ▇▇▇▇▇▇ Godward LLP, dated as of the Closing Date and addressed to Parent, to the effect that the Merger will constitute a reorganization within the meaning of Section 368 of the Code (it being understood that, in rendering such opinion, ▇▇▇▇▇▇ Godward LLP may rely upon the Continuity of Interest Certificates and tax representation letters referred to in Section 5.135.10); (ek) a certificate executed on behalf of the Company by its Chief Executive Officer confirming that the conditions set forth in Sections 6.1, 6.2, 6.4, 6.5, 6.7 6.7, 6.8 and 6.8 6.9 have been duly satisfied; and (fl) the written resignations of all officers and directors of the Company, effective as of the Effective Time.

Agreements and Documents. Parent and Merger Sub The Company shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Agreements in the statement referred to in Section 5.16(b)form of Exhibit E-2, executed by each individual identified on Exhibit F-2, except to the Companyextent that any such individual has died or has become incapacitated; (b) a letter from KPMG Peat Marwick LLP, dated as of the Closing Date and addressed to Parent and the Company, reasonably satisfactory in form and substance to Parent and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, to the effect that, after reasonable investigation, KPMG Peat Marwick LLP is not aware of any fact concerning the Company or any of the Company's shareholders or affiliates that could preclude Parent from accounting for the Merger as a "pooling of interests" in accordance with GAAP, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC; (c) a letter from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, dated as of the Closing Date and addressed to Parent, reasonably satisfactory in form and substance to Parent, to the effect that, after reasonable investigation, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is not aware of any fact concerning Parent or any of Parent's stockholders or affiliates that could preclude Parent from accounting for the Merger as a "pooling of interests" in accordance with GAAP, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC; (d) a legal opinion of ▇▇▇▇▇▇ Godward LLP, dated as of the Closing Date and addressed to Parent, to the effect that the Merger will constitute a reorganization within the meaning of Section 368 of the Code (it being understood that, in rendering such opinion, ▇▇▇▇▇▇ Godward LLP may rely upon the tax representation letters referred to in Section 5.13); (c) a legal opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, dated as of the Closing Date, to the effect that the Merger will constitute a reorganization within the meaning of Section 368 of the Code (it being understood that, in rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ may rely upon tax representation letters including those referred to in Section 5.13); (d) a letter from Coopers & ▇▇▇▇▇▇▇ L.L.P., dated as of a date no earlier than three (3) days prior to the Closing Date and addressed to Parent, the Company and KPMG Peat Marwick L.L.P., reasonably satisfactory in form and substance to the Company, to the effect that, after reasonable investigation, Coopers & ▇▇▇▇▇▇▇ L.L.P. is not aware of any fact concerning the Company or any of the Company's shareholders or affiliates that could preclude Parent from accounting for the Merger as a "pooling of interests" in accordance with GAAP, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC; (e) a letter from KPMG Peat Marwick L.L.P., dated as of a date no earlier than three (3) days prior to the Closing Date and addressed to Parent and the Company, reasonably satisfactory in form and substance to the Company, to the effect that such firm concurs with Parent's management's conclusion that Parent may account for the Merger as a "pooling of interests" in accordance with GAAP, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC; and (f) a certificate executed on behalf of the Company Parent by its Chief Executive Officer an executive officer of Parent, confirming that the conditions set forth in Sections 6.17.1, 6.27.2, 6.4, 6.5, 6.7 7.3 and 6.8 7.6 have been duly satisfied; and (f) the written resignations of all officers and directors of the Company, effective as of the Effective Time.

Agreements and Documents. Parent and Merger Sub shall have received the The following agreements and documentsdocuments shall have been delivered to Parent, each of which and shall be in full force and effect: (a) a certificate, executed on behalf of the statement referred to Company by an executive officer of the Company, confirming that the conditions set forth in Section 5.16(b)Sections 7.1, 7.2, 7.3 and 7.4 have been duly satisfied; (b) Affiliate Agreements in the form of Exhibit C, executed by each Person who could reasonably be deemed to be an "affiliate" (as that term is used in Rule 145 under the Securities Act) of the Company; (bc) a letter from KPMG Peat Marwick LLPthe Company's independent accountant, dated as of the Closing Date and addressed to Parent Parent, the Company and the CompanyPricewaterhouseCoopers, in its capacity as Parent's independent accountant, reasonably satisfactory in form and substance to Parent and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLPPricewaterhouseCoopers, to the effect that, after reasonable investigation, KPMG Peat Marwick LLP Ernst & Young is not aware of any fact concerning the Company or any of the Company's shareholders or affiliates that could preclude Parent from accounting for the Merger as a "pooling of interests" in accordance with GAAP, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC; (c) a letter from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, dated as of the Closing Date and addressed to Parent, reasonably satisfactory in form and substance to Parent, to the effect that, after reasonable investigation, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is not aware of any fact concerning Parent or any of Parent's stockholders or affiliates that could preclude Parent from accounting for the Merger as a "pooling of interests" in accordance with GAAPgenerally accepted accounting principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC; (d) a legal opinion of ▇▇▇▇▇▇ Godward LLPletter from PricewaterhouseCoopers, in its capacity as Parent's independent accountant, dated as of the Closing Date and addressed to Parent, reasonably satisfactory in form and substance to Parent, to the effect PricewaterhouseCoopers, concurs with Parent's management conclusion that Parent may account for the Merger will constitute as a reorganization within the meaning "pooling of Section 368 interests" in accordance with generally accepted accounting principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the Code (it being understood that, in rendering such opinion, ▇▇▇▇▇▇ Godward LLP may rely upon the tax representation letters referred to in Section 5.13); (e) a certificate executed on behalf of the Company by its Chief Executive Officer confirming that the conditions set forth in Sections 6.1, 6.2, 6.4, 6.5, 6.7 and 6.8 have been duly satisfiedSEC; and (fe) the written resignations of all officers and directors of each of the CompanyAcquired Corporations, effective as of the Effective Time.

Agreements and Documents. Parent and Merger Sub shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Employment Agreements in the statement referred to in Section 5.16(b)forms attached hereto as Exhibits ▇-▇, ▇-▇ and D-3, executed by the Company; (b) a letter from KPMG Peat Marwick LLP▇▇▇▇▇▇▇ ▇▇▇▇, dated as of the Closing Date and addressed to Parent and the Company▇▇▇▇▇▇▇ ▇▇▇▇▇▇, reasonably satisfactory in form and substance to Parent and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP▇▇, to respectively; (b) Affiliate Agreements in the effect thatform attached hereto as Exhibit B, executed by the Persons identified on Exhibit C, each other person who, after reasonable investigationthe date hereof becomes an executive officer, KPMG Peat Marwick LLP is not aware director or beneficial holder of any fact concerning more than 10% of the Company or any outstanding capital stock of the Company's shareholders or affiliates that could preclude Parent from accounting for , and each person who is otherwise identified by the Merger SEC as a an "pooling affiliate" within the meaning of interests" in accordance with GAAP, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of Rule 144(a) (1) promulgated under the SECSecurities Act; (c) a letter from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Ernst & Young LLP, dated as of the Closing Date and addressed to Parent, reasonably satisfactory in form and substance to Parent, updating the letter referred to the effect that, after reasonable investigation, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is not aware of any fact concerning Parent or any of Parent's stockholders or affiliates that could preclude Parent from accounting for the Merger as a "pooling of interests" in accordance with GAAP, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SECSection 5.9; (d) a legal opinion of ▇▇▇▇▇▇ Godward LLP, LLP dated as of the Closing Date and addressed to Parent, to the effect that the Merger will constitute a reorganization within the meaning of Section 368 of the Code (it being understood that, in rendering such opinion, ▇▇▇▇▇▇ Godward LLP may rely upon the tax representation letters referred to in Section 5.135.8); (e) a certificate (the "Closing Certificate") executed on behalf of the Company by its Chief Executive Officer confirming that the conditions set forth in Sections 6.1, 6.26.3, 6.4, 6.56.6, and 6.7 and 6.8 have been duly satisfied; and (f) the written resignations of all officers and directors of the Company, effective as of the Effective Time. (g) a letter from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, dated as of the Closing Date, confirming that Parent may account for the Merger as a "pooling of interests" in accordance with generally accepted accounting principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC; provided, however, that the failure to deliver such letter shall not excuse Parent and Merger Sub from performing their obligations under this Agreement if such failure does not result from any breach of the representations, warranties or covenants made by the Company in this Agreement; and (h) a letter from Ernst & Young LLP, dated as of the Closing Date, confirming that no transaction entered into by the Acquired Corporations, and no other fact or circumstance relating to the Acquired Corporations, will prevent Parent from accounting for the Merger as a "pooling of interests" in accordance with generally accepted principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC; provided, however, that the failure to deliver such letter shall not excuse Parent and Merger Sub from performing their obligations under this Agreement if such failure does not result from any breach of the representations, warranties or covenants made by the Company in this Agreement.

Agreements and Documents. Parent and Merger Sub shall have received the following agreements and documents, each of which shall be in full force and effect: (a) executed copies of (i) the statement referred to in Section 5.16(b), executed by the Company; (b) a letter from KPMG Peat Marwick LLPlegal opinion of GCWF, dated as of the Closing Date and addressed to Parent and the Company, reasonably satisfactory in form and substance to Parent and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, rendered to the effect that, after reasonable investigation, KPMG Peat Marwick LLP is not aware of any fact concerning the Company or any of the Company's shareholders or affiliates that could preclude Parent from accounting for the Merger as a "pooling of interests" in accordance with GAAP, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC; (c) a letter from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, dated as of the Closing Date and addressed to Parent, reasonably satisfactory in form and substance to Parent, to the effect that, after reasonable investigation, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is not aware of any fact concerning Parent or any of Parent's stockholders or affiliates that could preclude Parent from accounting for the Merger as a "pooling of interests" in accordance with GAAP, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC; (d) a legal opinion of ▇▇▇▇▇▇ Godward LLP, dated as of the Closing Date and addressed to Parent, to the effect that the Merger will constitute a reorganization within the meaning of Section 368 of the Code (it being understood that, in rendering such opinion, ▇▇▇▇▇▇ Godward LLP such counsel may rely upon the tax representation letters reasonably acceptable to CG 48. and GCWF) and (ii) the legal opinion of CG as to certain other matters in the form attached as Exhibit H hereto; the opinion referred to in clause (i) of this Section 5.13)6.5(a) shall not be waivable unless approval of the opposing party is obtained with appropriate disclosure and in rendering such opinions counsel may rely upon reasonable representations and certificates of Parent, Merger Sub and Company; (eb) an Escrow Agreement, executed by the Company, the Shareholder Representative and the Escrow Agent; (c) a certificate executed signed on behalf of the Company by its the Chief Executive Officer confirming and the Chief Financial Officer (or other duly elected or appointed executive officer of the Company) representing and warranting that the conditions set forth in Sections 6.1, 6.2, 6.4, 6.5, 6.7 Section 6.1 and 6.8 Section 6.2 have been duly satisfied; (d) a resignation from each director and officer of the Company effective as of the Closing from each office or directorship held by such person in any Acquired Entity and a waiver from each of them of any rights to accelerated vesting of shares of capital stock of the Company due to constructive termination of his or her employment with the Company; (e) evidence reasonably satisfactory to Parent of the termination of (i) the Second Restated Investors' Rights Agreement by and among the Company and certain of its investors and (ii) any agreements regarding maintaining status as a "small business concern" within the meaning of the Small Business Investment Act of 1958, as amended; and (f) the written resignations of all officers and directors a copy of the Company, effective as Restated Articles certified by the Secretary of State of the Effective TimeState of California as filed therewith.

Agreements and Documents. Parent and Merger Sub shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Agreements substantially in the statement referred to in Section 5.16(bform of Exhibit E-2 (each, an "AFFILIATE AGREEMENT"), executed by the Company;Persons identified on Exhibit E-1; -37- 44 (b) Noncompetition Agreements substantially in the form of Exhibit F-2 (each a "NONCOMPETITION AGREEMENT"), executed by the individuals identified on Exhibit F-1; (c) Proprietary information and inventions agreements, reasonably satisfactory in form and content to Parent, executed by all employees and former employees of the Company and by all consultants and independent contractors and former consultants and former independent contractors to the Company who have not already signed such agreements (including the individuals identified in Part 2.9(f) of the Company Disclosure Schedule); (d) the statements referred to in Section 6.7, executed by each of the Shareholders; (e) a legal opinion of Venture Law Group, counsel to the Company and the Shareholders, dated as of the Closing Date, substantially in the form of Exhibit G; (f) a letter from KPMG Peat Marwick PricewaterhouseCoopers LLC, dated as of the Closing Date, confirming that Parent may account for the Merger as a "pooling of interests" in accordance with generally accepted accounting principles, Accounting Principles Board Opinion No. 16, and all published rules, regulations and policies of the SEC; (g) a letter from Deloitte & Touche LLP, dated as of the Closing Date and addressed to Parent and Date, confirming that no transaction entered into by the Company, reasonably satisfactory in form and substance to Parent and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, no other fact or circumstance relating to the effect thatCompany, after reasonable investigation, KPMG Peat Marwick LLP is not aware of any fact concerning the Company or any of the Company's shareholders or affiliates that could preclude will prevent Parent from accounting for the Merger as a "pooling of interests" in accordance with GAAPgenerally accepted principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC; (ch) a letter from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, dated certificate executed by the President and Chief Executive Officer of the Company that each of the representations and warranties set forth in Section 2 is accurate in all material respects as of the Closing Date and addressed to Parent, reasonably satisfactory in form and substance to Parent, to the effect that, after reasonable investigation, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is not aware of any fact concerning Parent or any of Parent's stockholders or affiliates that could preclude Parent from accounting for the Merger as a "pooling of interests" in accordance with GAAP, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC; (d) a legal opinion of ▇▇▇▇▇▇ Godward LLP, dated as of if made on the Closing Date and addressed to Parent, to the effect that the Merger will constitute a reorganization within the meaning of Section 368 of the Code (it being understood that, in rendering such opinion, ▇▇▇▇▇▇ Godward LLP may rely upon the tax representation letters referred to in Section 5.13); (e) a certificate executed on behalf of the Company by its Chief Executive Officer confirming that the conditions set forth in Sections 6.1, 6.2, 6.4, 6.5, 6.7 and 6.8 7 have been duly satisfied; andsatisfied in all material respects (the "COMPANY OFFICER'S CLOSING CERTIFICATE"); (fi) a written opinion from Thom▇▇ ▇▇▇s▇▇ ▇▇▇tners LLC, in a form satisfactory to the Board of Directors of Parent, stating that the issuance of the Merger Shares to the Shareholders is fair to Parent from a financial point of view; (j) A true, correct and complete schedule (the "SCHEDULES OF EXPENSES") of all Company Expenses paid or incurred by or on behalf of the Company or the Shareholders through the Closing Date, accompanied by a certificate signed by the President and Chief Financial Officer of the Company certifying the accuracy and completeness thereof, shall have been delivered by the Company. (k) written resignations of all officers and directors of the Company, effective as of the Effective Time; (l) a counterpart signature page to this Agreement executed by the Shareholders set forth on Schedule 7.5(l); (m) the Escrow Agreement substantially in the form of Exhibit D (the "ESCROW AGREEMENT") executed by the Shareholders' Agent; (n) the Investor Rights Agreement substantially in the form of Exhibit H (the "INVESTOR RIGHTS AGREEMENT") executed by the Shareholders; (o) the consent of the holders of at least a majority of the outstanding "Registrable Securities" (as such term is defined in Section 2.1(b) of the Second Amended and Restated Investor Rights Agreement dated as of August 13, 1998 by and among Parent, Organic and the other shareholders of Parent listed on the signature pages thereto (the "EXISTING REGISTRATION RIGHTS AGREEMENT")) to the Parent's grant of registration rights to the Shareholders pursuant to the Investor Rights Agreement, as required by Section 2.14 of the Existing Registration Rights Agreement (the "CONSENT OF THE EXISTING REGISTRATION RIGHTS HOLDERS"); and (p) If requested by Parent, Stev▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ll have executed an amendment of that certain License Agreement, dated as of February 27, 1997, between Stev▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ the Company or shall have executed a new license agreement, in each case, in form and substance reasonably satisfactory to Parent to ensure that the Company has the absolute, royalty free and perpetual right to use, sublicense, transfer and modify the software program Hit List and any and all derivative works thereof and all modifications, enhancements and upgrades thereto.

Agreements and Documents. Parent and Merger Sub shall have received the following agreements and documents, each of which shall be in full force and effect: : (aA) the statement referred to in Section 5.16(b), executed by the Company; ; (bB) a letter from KPMG Peat Marwick LLP, dated as of the Closing Date and addressed to Parent and the Company, reasonably satisfactory in form and substance to Parent and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, to the effect that, after reasonable investigation, KPMG Peat Marwick LLP is not aware of any fact concerning the Company or any of the Company's shareholders or affiliates that could preclude Parent from accounting for the Merger as a "pooling of interests" in accordance with GAAP, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC; ; (cC) a letter from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, dated as of the Closing Date and addressed to Parent, reasonably satisfactory in form and substance to Parent, to the effect that, after reasonable investigation, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is not aware of any fact concerning Parent or any of Parent's stockholders or affiliates that could preclude Parent from accounting for the Merger as a "pooling of interests" in accordance with GAAP, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC; ; (dD) a legal opinion of ▇▇▇▇▇▇ Godward LLP, dated as of the Closing Date and addressed to Parent, to the effect that the Merger will constitute a reorganization within the meaning of Section 368 of the Code (it being understood that, in rendering such opinion, ▇▇▇▇▇▇ Godward LLP may rely upon the tax representation letters referred to in Section 5.13); ; (eE) a certificate executed on behalf of the Company by its Chief Executive Officer confirming that the conditions set forth in Sections 6.1, 6.2, 6.4, 6.5, 6.7 and 6.8 have been duly satisfied; and and (fF) the written resignations of all officers and directors of the Company, effective as of the Effective Time.

Agreements and Documents. Parent and Merger Sub the Company, as provided herein, shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate's Agreements in the statement referred to in Section 5.16(b), form of Exhibit D-1 executed by any Person who could reasonably be deemed to be an "affiliate" of the CompanyCompany for purposes of the Securities Act; (b) a letter from KPMG Peat Marwick LLPRelease in the form of Exhibit G, dated as of executed by the Closing Date Designated Stockholders; (c) to the extent reasonably requested by Parent, confidential invention and addressed to Parent and the Companyassignment agreements, reasonably satisfactory in form and substance content to Parent Parent, executed by all employees of the Company and ▇▇▇▇▇ by all consultants and independent contractors to the Company who have not already signed such agreements (including the individuals identified in Part 2.9(f) of the Company Disclosure Schedule); (d) a legal opinion of Jenkens & ▇▇▇▇▇▇▇▇ LLP, to the effect that, after reasonable investigation, KPMG Peat Marwick LLP is not aware of any fact concerning the Company or any of the Company's shareholders or affiliates that could preclude Parent from accounting for the Merger as a "pooling of interests" in accordance with GAAP, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC; (c) a letter from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, P.C., dated as of the Closing Date and addressed to ParentDate, reasonably satisfactory in the form and substance to Parent, to the effect that, after reasonable investigation, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is not aware of any fact concerning Parent or any of Parent's stockholders or affiliates that could preclude Parent from accounting for the Merger as a "pooling of interests" in accordance with GAAP, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SECExhibit H; (de) a legal opinion of ▇▇▇▇▇▇ Godward LLP, LLP dated as of the Closing Date and addressed to ParentDate, to the effect that the Merger will constitute a reorganization within the meaning of Section 368 of the Code (it being understood that, in rendering such opinion, ▇▇▇▇▇▇ Godward LLP such counsel may rely upon the tax representation letters referred to in Section 5.137.9); (ef) a letter from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, dated as of the Closing Date, confirming that no transaction entered into by the Company, and no other fact or circumstance relating to the Company, will prevent Parent from accounting for the Merger as a "pooling of interests" in accordance with generally accepted principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC; (g) a certificate executed on behalf of by the Company by its Company's Chief Executive Officer confirming (solely in his capacity as such and not in his capacity as a Designated Stockholder) and containing the representation and warranty that each of the representations and warranties set forth in Section 2 is accurate in all respects as of the Closing Date as if made on the Closing Date and that the conditions set forth in Sections 6.18.1, 6.28.2, 6.4, 6.5, 6.7 8.3 and 6.8 8.4 have been duly satisfiedsatisfied (the "Company Closing Certificate"); and (fh) the if requested by Parent, written resignations of all officers and directors of the CompanyAcquired Corporations and the Company ESOP Trustees and 401(k) Trustees, effective as of the Effective Time, except as otherwise provided herein or otherwise agreed by Parent and the Company.