Common use of Conditions Precedent to Obligations of Parties Clause in Contracts

Conditions Precedent to Obligations of Parties. 11.1 Conditions to Obligations of the Parties. The obligations of FMG, WALLSTREET and those Stockholders listed in Exhibit "A" under this Agreement shall be subject to the fulfillment, on or prior to the Closing, of all conditions elsewhere herein set forth, including, but not limited to, receipt by the appropriate party of all deliveries required by Sections 4 and 5 herein, and fulfillment, prior to Closing, of each of the following conditions: (a) All representations and warranties made by WALLSTREET Stockholders listed in Exhibit "A" and FMG in this Agreement shall be true and correct in all material respects on and as of the Closing Date with the same effect as if such representations and warranties had been made on and as of the Closing Date. (b) WALLSTREET Stockholders listed in Exhibit "A" and FMG shall have performed or complied with all covenants, agreements and conditions contained in this Agreement on their part required to be performed or complied with at or prior to the Closing. (c) All material authorizations, consents or approvals of any and all governmental regulatory authorities necessary in connection with the consummation of the transactions contemplated by this Agreement shall have been obtained and be in full force and effect. (d) The Closing shall not violate any permit or order, decree or judgment of any court or governmental body having competent jurisdiction and there shall not have been instituted any legal or administrative action or proceeding to enjoin the transaction contemplated hereby or seeking damages from any party with respect thereto.

Conditions Precedent to Obligations of Parties. 11.1 Conditions to Obligations of the Parties. The obligations of FMGADVANCED, WALLSTREET DIGITAL and those Stockholders Shareholders listed in Exhibit "A" A under this Agreement shall be subject to the fulfillment, on or prior to the Closing, of all conditions elsewhere herein set forth, including, but not limited to, receipt by the appropriate party of all deliveries required by Sections 4 and 5 herein, and fulfillment, prior to Closing, of each of the following conditions: (a) All representations and warranties made by WALLSTREET Stockholders DIGITAL, Shareholders listed in Exhibit "A" A and FMG ADVANCED in this Agreement shall be true and correct in all material respects on and as of the Closing Date with the same effect as if such representations and warranties had been made on and as of the Closing Date.; (b) WALLSTREET Stockholders DIGITAL, Shareholders listed in Exhibit "A" A and FMG ADVANCED shall have performed or complied with all covenants, agreements and conditions contained in this Agreement on their part required to be performed or complied with at or prior to the Closing. (c) All material authorizations, consents or approvals of any and all governmental regulatory authorities necessary in connection with the consummation of the transactions contemplated by this Agreement shall have been obtained and be in full force and effect. (d) The Closing shall not violate any permit or order, decree or judgment of any court or governmental body having competent jurisdiction and there shall not have been instituted any legal or administrative action or proceeding to enjoin the transaction contemplated hereby or seeking damages from any party with respect thereto. (e) Each DIGITAL Shareholder acquiring Exchange Stock will be required, at Closing, to submit an agreement confirming that all the Exchange Stock received will be acquired for investment and not with a view to, or for sale in connection with, any distribution thereof, and agreeing not to transfer any of the Exchange Stock unless such transfer is pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "Act"), or unless such transfer falls within an exemption from registration under the Act and any applicable state securities laws. Each DIGITAL Shareholder acquiring Exchange Stock will be required to transfer to ADVANCED at the Closing his/her respective DIGITAL Shares, free and clear of all liens, mortgages, pledges, encumbrances or changes, whether disclosed or undisclosed. (f) All schedules, prepared by DIGITAL or ADVANCED shall be current or updated as necessary as of the Closing Date. (g) Each party shall have received favorable opinions from the other party's counsel on such matters in connection with the transactions contemplated by this Agreement as are reasonable. (h) Each party shall have satisfied itself that since the date of this Agreement the business of the other party has been conducted in the ordinary course. In addition, each party shall have satisfied itself that no withdrawals of cash or other assets have been made and no indebtedness has been incurred since the date of this Agreement, except in the ordinary course of business or with respect to services rendered or expenses incurred in connection with the Closing of this Agreement, unless said withdrawals or indebtedness were either authorized by the terms of this Agreement or subsequently consented to in writing by the parties. (i) Each party covenants that, to the best of its knowledge, it has complied in all material respects with all applicable laws, orders and regulations of federal, state, municipal and/or other governments and/or any instrumentality thereof, domestic or foreign, applicable to their assets, to the business conducted by them and to the transactions contemplated by this Agreement. (j) ADVANCED shall have provided to DIGITAL through August 31, 1998, audited financial statements prepared in accordance with generally accepted accounting principles. (k) DIGITAL shall have provided to ADVANCED unaudited financial statements of DIGITAL for the six months ended June 30, 1998, prepared in accordance with generally accepted accounting principles. (l) Each party shall have granted to the other party (acting through its management personnel, counsel, accountants or other representatives designated by it) full opportunity to examine its books and records, properties, plants and equipment, proprietary rights and other instruments, rights and papers of all kinds in accordance with Sections 4 and 5 hereof, and each party shall be satisfied to proceed with the transactions contemplated by this Agreement upon completion of such examination and investigation. (m) If Shareholders, who in the aggregate own more than ten percent (10%) of the DIGITAL Shares, dissent from the proposed share exchange, or are unable or for any reason refuse to transfer any or all of their DIGITAL Shares to ADVANCED in accordance with Section 1 of this Agreement, ADVANCED, at its option, may terminate this Agreement. (n) Each party shall have satisfied itself that all transactions contemplated by this Agreement, including those contemplated by the exhibits and schedules attached hereto, shall be legal and binding under applicable statutory and case law of the State of California, including, but not limited to California securities laws and all other applicable state securities laws. (o) DIGITAL and ADVANCED shall agree to indemnify each other against any liability to any broker or finder to which that party may become obligated. (p) The Exchange shall be approved by the Boards of Directors of both DIGITAL and ADVANCED. Furthermore, the Exchange shall be approved by the shareholders of DIGITAL and ADVANCED, if deemed necessary or appropriate by counsel for the same, within thirty (30) days following execution of this Agreement. If such a meeting is deemed necessary, the management of DIGITAL and ADVANCED agree to recommend approval to their respective Shareholders and to solicit proxies in support of the same. (q) ADVANCED and DIGITAL and their respective legal counsel shall have received copies of all such certificates, opinions and other documents and instruments as each party or its legal counsel may reasonably request pursuant to this Agreement or otherwise in connection with the consummation of the transactions contemplated hereby, and all such certificates, opinions and other documents and instruments received by each party shall be reasonably satisfactory, in form and substance, to each party and its legal counsel. (r) Both DIGITAL and ADVANCED shall have the right to waive any or all of the conditions precedent to its obligations hereunder not otherwise legally required; provided, however, that no waiver by a party of any condition precedent to its obligations hereunder shall constitute a waiver by such party of any other condition.

Conditions Precedent to Obligations of Parties. 11.1 Conditions to Obligations of the Parties. The obligations of FMGCACTUS, WALLSTREET NOMATTERWARE and those Stockholders Shareholders listed in Exhibit "A" A under this Agreement shall be subject to the fulfillment, on or prior to the Closing, of all conditions elsewhere herein set forth, including, but not limited to, receipt by the appropriate party of all deliveries required by Sections 4 and 5 B herein, and fulfillment, prior to Closing, of each of the following conditions: (a) All representations and warranties made by WALLSTREET Stockholders NOMATTERWARE, Shareholders listed in Exhibit "A" A and FMG CACTUS in this Agreement shall be true and correct in all material respects on and as of the Closing Date with the same effect as if such representations and warranties had been made on and as of the Closing Date.; (b) WALLSTREET Stockholders NOMATTERWARE, Shareholders listed in Exhibit "A" A and FMG CACTUS shall have performed or complied with all covenants, agreements and conditions contained in this Agreement on their part required to be performed or complied with at or prior to the Closing. (c) All material authorizations, consents or approvals of any and all governmental regulatory authorities necessary in connection with the consummation of the transactions contemplated by this Agreement shall have been obtained and be in full force and effect. (d) The Closing shall not violate any permit or order, decree or judgment of any court or governmental body having competent jurisdiction and there shall not have been instituted any legal or administrative action or proceeding to enjoin the transaction contemplated hereby or seeking damages from any party with respect thereto. (e) Each NOMATTERWARE Shareholder and Dawson/James, Ltd. who ▇▇▇▇ b▇ acquiring Exchange stock will be required, at Closing, to submit an agreement confirming that all the Exchange Stock received will be acquired for investment and not with a view to, or for sale in connection with, any distribution thereof, and agreeing not to transfer any of the Exchange Stock for a period of one year from the date of the Closing, except to those persons approved by legal counsel to CACTUS as falling within the exemption from registration under the Securities Act of 1933 and any applicable state securities laws, which transfers do not constitute a public distribution of securities, and in which the transferees execute an investment letter in form and substance satisfactory to counsel for CACTUS. It is the intention of Cactus, subsequent to the Exchange, to prepare and file with the U.S. Securities & Exchange Commission a Form SB-2 Registration Statement, which will register all of the shares of the Company. Each NOMATTERWARE Shareholder acquiring Exchange Stock will be required to transfer to CACTUS at the Closing his/her respective NOMATTERWARE Shares, free and clear of all liens, mortgages, pledges, encumbrances or changes, whether disclosed or undisclosed. (g) All schedules, prepared by NOMATTERWARE or CACTUS shall be current or updated as necessary as of the Closing Date.