Common use of CONDITIONS PRECEDENT TO THE MERGER Clause in Contracts

CONDITIONS PRECEDENT TO THE MERGER. 7.1 Conditions to Each Party’s Obligation To Effect the Merger. The obligations of the parties to effect the Merger are subject to the satisfaction, at or prior to the Closing, of each of the following conditions: (a) If the adoption of this Agreement by the stockholders of the Company is required by applicable Legal Requirements, this Agreement shall have been duly adopted by the Required Company Stockholder Vote. (b) (i) the waiting period applicable to the Merger under the HSR Act shall have expired or been terminated and (ii) all approvals, filings, or waiting periods under the Antitrust Laws set forth in Part 7.1(b) of the Company Disclosure Schedule required to consummate the Merger shall have been obtained or filed or shall have expired or been terminated, in each case as set forth in Part 7.1(b) of the Company Disclosure Schedule. (c) Unless the Offer Termination shall have occurred, Merger Sub shall have accepted for payment all Shares validly tendered (and not validly withdrawn) pursuant to the Offer; provided, however, that neither Parent nor Merger Sub shall be entitled to assert the failure of this condition if, in breach of this Agreement or the terms of the Offer, Merger Sub fails to purchase any Shares validly tendered (and not validly withdrawn) pursuant to the Offer. (d) 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 or the consummation of the Merger; provided, however, that a party shall not be permitted to invoke this Section 7.1(d) unless it shall have taken all actions required under this Agreement to have any such order lifted.

CONDITIONS PRECEDENT TO THE MERGER. 7.1 Conditions Condition to the Obligations of Each Party’s Obligation To Effect the Merger. The obligations of the parties each Party to effect the Merger are subject to the satisfactionsatisfaction (or, at or prior to if permitted by applicable Legal Requirements, waiver by mutual consent of Parent, Merger Sub and the Closing, Company) as of the Closing of each of the following conditions: (a) If the adoption of this Agreement by the stockholders of the Company is required by applicable Legal Requirements, this Agreement Stockholder Approval shall have been duly adopted by the Required Company Stockholder Vote.obtained; (b) (i) the waiting period applicable to the Merger under the HSR Act shall have expired or been terminated and (ii) all approvals, filings, or waiting periods under the Antitrust Laws set forth in Part 7.1(b) of the Company Disclosure Schedule required to consummate the Merger shall have been obtained or filed or shall have expired or been terminated, in each case as set forth in Part 7.1(b) of the Company Disclosure Schedule. (c) Unless the Offer Termination shall have occurred, Merger Sub shall have accepted for payment all Shares validly tendered (and not validly withdrawn) pursuant to the Offer; provided, however, that neither Parent nor Merger Sub there shall be entitled to assert the failure of this condition if, in breach of this Agreement or the terms of the Offer, Merger Sub fails to purchase any Shares validly tendered (and not validly withdrawn) pursuant to the Offer. (d) There shall not have been issued by any court of competent jurisdiction or remain in effect any no temporary restraining order, preliminary or permanent injunction or other order final judgment issued by, any Governmental Body of competent jurisdiction preventing the consummation of the Merger, nor shall any action Legal Requirement 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 may prohibit or indirectly prohibitsmake illegal the consummation of the Merger and (ii) no Governmental Body in any jurisdiction in which any of the Parties or any of their Subsidiaries has business activities shall have instituted any Legal Proceeding (which remains pending at what would otherwise be the Closing Date) before any court or other Governmental Body of competent jurisdiction seeking to temporarily or permanently prevent, prohibit or makes illegal, the acceptance for payment of or payment for Shares or make illegal the consummation of the Merger; providedand (c) any waiting period (or any extension thereof) applicable to the Merger under the HSR Act shall have expired or been terminated, howeverwithout the imposition of any Burdensome Condition (subject to the qualifications to such term in Section 6.2(a)). 7.2 Conditions to the Obligations of Parent and Merger Sub. The obligations of each of Parent and Merger Sub to effect the Merger are subject to the satisfaction (or, that if permitted by applicable Legal Requirements, waiver by mutual consent of Parent and Merger Sub) as of the Closing of each of the following conditions: (i) the representations and warranties of the Company set forth in Sections 3.3(a) – 3.3(f) (Capitalization, Etc.) of the Agreement shall be accurate except for any de minimis inaccuracies as of the date of the Agreement and at and as of the Effective Time as if made on and as of the Effective Time (except to the extent any such representation or warranty expressly relates to an earlier date or period, in which case as of such date or period); (ii) the representations and warranties of the Company set forth in Section 3.1 (Due Organization; Subsidiaries, Etc.), Section 3.2 (Certificate of Incorporation and Bylaws), Section 3.3(g) (Capitalization, Etc.), Section 3.20 (Authority; Binding Nature of Agreement), Section 3.22 (Takeover Laws), Section 3.23 (Opinion of Financial Advisors) and Section 3.24 (Brokers and Other Advisors) of the Agreement shall be accurate in all material respects, as of the date of the Agreement and at and as of the Effective Time as if made on and as of the Effective Time (except to the extent any such representation or warranty expressly relates to an earlier date or period, in which case as of such date or period); (iii) the representations and warranties of the Company set forth in the Agreement (other than those referred to in Section 7.2(a)(i) and Section 7.2(a)(ii) above) shall be accurate (disregarding for this purpose all “Material Adverse Effect” and “materiality” qualifications contained in such representations and warranties) as of the date of the Agreement and at and as of the Effective Time as if made on and as of the Effective Time (except to the extent any such representation or warranty expressly relates to an earlier date or period, in which case as of such date or period), except where the failure of such representations and warranties to be so true and correct has not had, and would not, individually or in the aggregate, reasonably be expected to have a party Material Adverse Effect; (b) the Company shall have complied with or performed in all material respects the covenants and agreements it is required to comply with or perform at or prior to the Effective Time; (c) since the date of the Agreement, there shall not be permitted to invoke this Section 7.1(dhave occurred a Material Adverse Effect; and (d) unless it ▇▇▇▇▇▇ and Merger Sub shall have taken all actions required under this Agreement to received a certificate executed on behalf of the Company by an executive officer of the Company certifying that the conditions set forth in Sections 7.2(a), (b) and (c) have any such order liftedbeen satisfied.

CONDITIONS PRECEDENT TO THE MERGER. 7.1 6.1 Conditions to Each Party’s Obligation To 's Obligations to Effect the Merger. The respective obligations of the parties each party to this Agreement to consummate and effect the Merger are transactions contemplated hereby shall be subject to the satisfaction, satisfaction at or prior to the Closing, Effective Time of each of the following conditions, any of which may be waived: (a) If the adoption of this Agreement by the stockholders of the Company is required by applicable Legal Requirements, this This Agreement shall have been duly adopted by the Required Company Stockholder Voterequisite vote of the stockholders of each of Buyer, if required, and Company. (b) (i) the waiting period applicable to the Merger under the HSR Act The Commission shall have expired or been terminated and (ii) all approvals, filings, or waiting periods under declared the Antitrust Laws set forth in Part 7.1(b) Form S-4 effective. No stop order suspending the effectiveness of the Company Disclosure Schedule required to consummate the Merger Form S-4 or any part thereof shall have been obtained or filed or issued and no proceeding for that purpose, and no similar proceeding in respect of the Proxy Statement/Prospectus shall have expired been initiated or been terminated, threatened in each case as set forth in Part 7.1(b) writing by the Commission or any other Governmental Authority; and all requests for additional information on the part of the Company Disclosure ScheduleCommission or any other Governmental Authority shall have been complied with to the reasonable satisfaction of the parties hereto. (c) Unless the Offer Termination shall have occurred, Merger Sub shall have accepted for payment all Shares validly tendered (and not validly withdrawn) pursuant to the Offer; provided, however, that neither Parent nor Merger Sub shall be entitled to assert the failure of this condition if, in breach of this Agreement or the terms of the Offer, Merger Sub fails to purchase any Shares validly tendered (and not validly withdrawn) pursuant to the Offer. (d) There shall not have been issued by any court of competent jurisdiction or remain in effect any No temporary restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction or other legal or regulatory restraint or prohibition preventing the consummation of the MergerMerger shall be in effect, nor shall any proceeding brought by any Government Authority seeking any of the foregoing be pending; nor shall there be any action have been taken, or any Legal Requirement statute, rule, regulation or order promulgatedenacted, entered, enforced, enacted, issued enforced or deemed applicable to the Merger by any Governmental Body Merger, which directly or indirectly prohibits, or makes illegal, the acceptance for payment of or payment for Shares or the consummation of the Merger; providedMerger illegal. In the event an injunction, howeverorder or other restraint or prohibition shall have been issued or imposed, each party agrees to use its commercially reasonable efforts to have such injunction, order or other restraint or prohibition lifted. (d) Company, Buyer and Merger Sub and their respective Subsidiaries shall have timely obtained from each Governmental Authority: (i) all approvals, waivers and consents as may be required under the Securities Act, state blue sky laws, the Exchange Act and under the HSR Act, and (ii) all other approvals, waivers and consents, if any, necessary for the consummation of or in connection with the Merger and the transactions contemplated hereby, the failure too obtain which would reasonably be expected to have a Material Adverse Effect upon either of Buyer or Company following the Effective Time. (e) The shares of Buyer Common Stock to be issued in the Merger and such other shares of Buyer Common Stock to be reserved for issuance in connection with the Merger shall have been approved for listing on The Nasdaq National Market. (f) Company shall have received a written opinion of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel to Company, in a form reasonably satisfactory to both Buyer and Company, dated on or about the Closing, to the effect that the Merger will constitute a party reorganization within the meaning of Section 368(a) of the Code, and such opinion shall not have been withdrawn. In rendering such opinion, counsel shall be permitted entitled to invoke this Section 7.1(d) unless it make reasonable assumptions and require delivery of and rely upon, among other things, reasonable and customary representations set forth in certificates to be delivered by each of Buyer, Merger Sub and Company in form reasonably satisfactory to such counsel. In addition, Buyer and Company shall have taken all actions received from their respective counsel, such tax opinions as may be required under this Agreement to have any such order liftedof them by the Commission in connection with the filing of the S-4.

CONDITIONS PRECEDENT TO THE MERGER. 7.1 6.01 Conditions to Each Party’s Obligation To Effect the MergerObligations of Davi▇. The ▇he obligations of the parties to Davi▇ ▇▇ effect the Merger are and the other transactions contemplated by this Agreement shall be subject to the satisfaction, at satisfaction (or prior waiver by Davi▇) ▇▇ior to or on the Closing, of each Closing Date of the following conditions: (a) If the adoption of this Agreement representations and warranties made by the stockholders of the Company is required by applicable Legal Requirements, Inotek in this Agreement shall have be true in all material respects on and as of the Closing Date with the same effect as though such representations and warranties had been duly adopted by made or given on and as of the Required Company Stockholder Vote.Closing Date; (b) (i) the waiting period applicable Inotek shall have performed and complied in all material respects with all of its obligations and agreements required to be performed prior to the Merger under the HSR Act shall have expired or been terminated and (ii) all approvals, filings, or waiting periods under the Antitrust Laws set forth in Part 7.1(b) of the Company Disclosure Schedule required to consummate the Merger shall have been obtained or filed or shall have expired or been terminated, in each case as set forth in Part 7.1(b) of the Company Disclosure Schedule.Closing Date; (c) Unless the Offer Termination shall have occurred, Merger Sub shall have accepted for payment all Shares validly tendered (and not validly withdrawn) pursuant to the Offer; provided, however, that neither Parent nor Merger Sub shall be entitled to assert the failure of this condition if, in breach of this Agreement or the terms of the Offer, Merger Sub fails to purchase any Shares validly tendered (and not validly withdrawn) pursuant to the Offer. (d) There shall not have been issued by any court of competent jurisdiction or remain in effect any no temporary restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction or other legal restraint or prohibition preventing the consummation of the MergerMerger shall be in effect, nor shall any proceeding by any regulatory authority or other person seeking any of the foregoing be pending. There shall not be any action have been taken, or any Legal Requirement statute, rule, regulation or order promulgatedenacted, entered, enforced, enacted, issued enforced or deemed applicable to the Merger which makes the consummation thereof illegal; (d) all necessary approvals, consents and authorizations required by any Governmental Body which directly or indirectly prohibits, or makes illegal, the acceptance law for payment of or payment for Shares or the consummation of the Merger; provided, howeverincluding the requisite approvals of the stockholders of Inotek and all legally required regulatory approvals, that a party shall not be permitted to invoke this Section 7.1(d) unless it shall have taken been obtained, and all actions waiting periods required under by law shall have expired; (e) On or prior to the Closing Date, Davi▇ ▇▇▇ll have received all documents required to be received from Inotek, including without limitation the consents referred to in Section 4.06, and a legal opinion of counsel to Inotek dated the Closing Date with respect to the matters listed on Exhibit 6.01(e) attached hereto, all in form and substance reasonably satisfactory to Davi▇; ▇▇d (f) Inotek shall have received a fairness opinion of Sand▇▇▇ ▇▇▇r▇▇ ▇▇▇▇▇▇ ▇▇▇., financial advisor to Inotek, to the effect that the transactions contemplated by this Agreement are fair to have any such order liftedthe stockholders of Inotek from a financial point of view.

CONDITIONS PRECEDENT TO THE MERGER. 7.1 Section 6.01. Conditions to Each Party’s Obligation To Effect the MergerObligations of First Banks, FBA and Redwood. The obligations of the parties First Banks, FBA and Redwood to effect the Merger are and the other transactions contemplated by this Agreement shall be subject to the satisfaction, at satisfaction (or waiver by such parties) prior to or on the Closing, of each Closing Date of the following conditions: (a) If the adoption representations and warranties made by Bancorp and Bank of this Agreement by the stockholders of the Company is required by applicable Legal Requirements, San Francisco in this Agreement shall have be true in all material respects on and as of the Closing Date with the same effect as though such representations and warranties had been duly adopted by made or given on and as of the Required Company Stockholder Vote.Closing Date (except to the extent any representation or warranty expressly speaks as of an earlier date); (b) (i) the waiting period applicable Bancorp and Bank of San Francisco shall each have performed and complied in all material respects with all of its obligations and agreements required to be performed prior to the Merger under the HSR Act shall have expired or been terminated and (ii) all approvals, filings, or waiting periods under the Antitrust Laws set forth in Part 7.1(b) of the Company Disclosure Schedule required to consummate the Merger shall have been obtained or filed or shall have expired or been terminated, in each case as set forth in Part 7.1(b) of the Company Disclosure Schedule.Closing Date; (c) Unless the Offer Termination shall have occurred, Merger Sub shall have accepted for payment all Shares validly tendered (and not validly withdrawn) pursuant to the Offer; provided, however, that neither Parent nor Merger Sub shall be entitled to assert the failure of this condition if, in breach of this Agreement or the terms of the Offer, Merger Sub fails to purchase any Shares validly tendered (and not validly withdrawn) pursuant to the Offer. (d) There shall not have been issued by any court of competent jurisdiction or remain in effect any no temporary restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction preventing the consummation of the Merger or the Bank Merger, or other legal restraint or prohibition preventing the consummation of the Merger, shall be in effect, nor shall any proceeding by any regulatory authority or other person seeking any of the foregoing be pending. There shall not be any action have been taken, or any Legal Requirement statute, rule, regulation or order promulgatedenacted, entered, enforced, enacted, issued enforced 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 or the Bank Merger which makes the consummation thereof illegal; (d) all necessary approvals, consents and authorizations required by law for consummation of the Merger, including the requisite approvals of the shareholders of Bancorp and all legally required regulatory approvals, shall have been obtained, and all waiting periods required by law shall have expired; (e) FBA shall have received the environmental reports required by Section 4.05 hereof and shall not have elected pursuant to Section 7.05 hereof to terminate this Agreement; (f) FBA shall have received all documents required to be received from Bancorp, including without limitation the consents referred to in Section 4.07, on or prior to the Closing Date, all in form and substance reasonably satisfactory to FBA; (g) stockholders of Bancorp Common owning no more than fifteen percent (15%) of the outstanding Bancorp Common shall have perfected the right to dissent from the Merger; (h) First Banks or one of its subsidiaries shall have completed an offering of Trust Preferred securities in the aggregate principal amount of at least $30,000,000 with customary terms and at a dividend rate no higher than twelve and one-half percent (12 1/2%) or an alternative financing arrangement on substantially similar terms (the "Financing"); provided, howeverthat if First Banks and its subsidiaries have complied in all material respects with their obligations under Section 5.07 but have been unable to complete a Financing by December 31, that 2000, unless completion of such a party transaction is then imminent, then FBA shall either (i) terminate this Agreement effective January 1, 2001 by written notice to Bancorp on or before such date, or (ii) as of January 1, 2001, this paragraph (h) shall be void and of no further force and effect. Notwithstanding the foregoing, if, as of December 31, 2000, First Banks, FBA or Redwood is in material breach of any of their representations, warranties or agreements set forth herein, and such breach has not been cured within the applicable cure period after delivery of written notice with respect to the breach, then FBA shall not have the option of terminating this Agreement pursuant to the above clause (i) of this subsection (h) and, in such event this subsection (h) shall automatically terminate and be permitted to invoke this of no further force and effect on and as of January 1, 2001; and (i) each of the Indemnification Agreements identified in Section 7.1(d) unless it 2.09 of the Disclosure Schedule shall have taken all actions required under this Agreement been amended by removing Sections 5(d) and 8 therefrom, in a manner reasonably acceptable to have any such order liftedFBA.

CONDITIONS PRECEDENT TO THE MERGER. 7.1 Section 6.1 Conditions to Each Party’s Obligation To Obligations to Effect the Merger. The respective obligations of Parent, Merger Sub and the parties Company to effect consummate the Merger are subject to the satisfactionsatisfaction (or waiver, if permissible pursuant to applicable Legal Requirements, by each such Party) at or prior to the Closing, Effective Time of each of the following conditions: (a) If the adoption of this Agreement by the stockholders of The Company will have received the Company is required by applicable Legal Requirements, this Agreement shall have been duly adopted by Required Vote at the Required Company Stockholder VoteMeeting. (b) No Governmental Body shall have (i) enacted, issued or promulgated any Legal Requirement that is in effect as of immediately prior to the Effective Time or (ii) issued or granted any order or injunction (whether temporary, preliminary or permanent) that is in effect, in each case, which has the effect as of immediately prior to the Effective Time of enjoining or otherwise prohibiting the consummation of the Merger or the other Transactions (any such injunction, order or Legal Requirement, a “Legal Restraint”). Section 6.2 Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger will be subject to the satisfaction (or waiver, if permissible pursuant to applicable Legal Requirements) at or prior to the Effective Time of each of the following conditions, any of which may be waived exclusively by Parent: (a) (i) the waiting period applicable representations and warranties of the Company set forth in this Agreement (except for the representations and warranties in Section 2.1, Section 2.2, Section 2.3, Section 2.5(b), Section 2.7, Section 2.17(c), Section 2.19, Section 2.21, Section 2.23, Section 2.24, Section 2.28 and Section 2.29 of this Agreement) shall be true and correct (without giving effect to any qualification or limitation by the words “material,” “materially,” “in all material respects,” “materiality” or “Material Adverse Effect” set forth therein) on and as of the Closing Date as if made on and as of such time (except to the Merger under extent any such representation or warranty is expressly made as of an earlier date or time, in which case as of such earlier date or time), except where the HSR Act shall have expired failure of any such representation or been terminated warranty to be true and correct would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, and (ii) the representations and warranties in Section 2.1, Section 2.2, Section 2.3, Section 2.5(b), Section 2.7, Section 2.17(c), Section 2.19, Section 2.21, Section 2.23, Section 2.24, Section 2.28 and Section 2.29 shall be true and correct in all approvals, filings, or waiting periods under the Antitrust Laws set forth in Part 7.1(b) respects on and as of the Closing Date as if made on and as of such time (except to the extent any such representation or warranty is expressly made as of an earlier date or time, in which case as of such earlier date or time). (b) The Company Disclosure Schedule shall have complied with and performed in all material respects all of the covenants and agreements it is required to consummate comply with or perform at or prior to the Merger shall have been obtained or filed or shall have expired or been terminated, in each case as set forth in Part 7.1(b) of the Company Disclosure ScheduleClosing under this Agreement. (c) Unless Since the Offer Termination shall have occurred, Merger Sub shall have accepted for payment all Shares validly tendered (and not validly withdrawn) pursuant to the Offer; provided, however, that neither Parent nor Merger Sub shall be entitled to assert the failure date of this condition ifAgreement, in breach of this Agreement or the terms of the Offer, Merger Sub fails to purchase there shall not have occurred any Shares validly tendered (and not validly withdrawn) pursuant to the OfferMaterial Adverse Effect. (d) There ▇▇▇▇▇▇ and ▇▇▇▇▇▇ Sub shall not have received a certificate of the Company, validly executed for and on behalf of the Company and in its name by a duly authorized executive officer thereof, certifying that the conditions set forth in Section 6.2(a), Section 6.2(b) and Section 6.2(c) 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 satisfied. (e) No more than five percent (5%) of the Mergerissued and outstanding Shares as of the date hereof (as adjusted pursuant to Section 1.5(b)) shall, nor in the aggregate, be (a) Dissenting Shares or (b) shares held by Company Stockholders who, under the provisions of Sections 92A.300 through 92A.500 of the NRS, remain entitled to exercise and perfect appraisal rights in respect of such shares. (f) The Company shall any action have been takencured or otherwise resolved all material Objections as the same are described in Section 8.14 to the satisfaction of Parent and Merger Sub, or any Legal Requirement material Objections that remain uncured or order promulgatedunresolved shall have been waived, enteredin writing, enforcedby Parent and Merger Sub. (g) Either (i) the Q3 2025 Form 10-Q shall have been filed by the Company with the SEC, enacted, or (ii) the applicable Canadian Securities Regulators shall have issued or deemed applicable at least ten (10) business days prior to the Merger by any Governmental Body Closing Date a decision granting the Cease Reporting Issuer Order stating that the Company shall cease to be a reporting issuer immediately following the Delisting in all jurisdictions in Canada in which directly or indirectly prohibits, or makes illegal, it is a reporting issuer. (h) The Company shall be entitled to file on the acceptance for payment of or payment for Shares or the consummation Closing Date a certification on Form 15 to suspend its duty to file reports under Section 15(d) of the Merger; provided, however, that a party shall not be permitted Exchange Act with respect to invoke this Section 7.1(dthe 2023 Company Warrants pursuant to Rule 12h-3(b)(1)(i) unless it shall have taken all actions required under this Agreement to have any such order liftedthe Exchange Act.

CONDITIONS PRECEDENT TO THE MERGER. 7.1 6.1 Conditions to Each Party’s Obligation To Effect 's Obligations under this Agreement. The respective obligations of each party under this Agreement shall be subject to the fulfillment at or prior to the Effective Time of the following conditions: 6.1.1 All necessary regulatory or governmental approvals and consents required to consummate the transactions contemplated hereby shall have been obtained and shall remain in full force and effect, and all statutory waiting periods in respect thereof shall have expired. 6.1.2 None of MidCity, NewCo, the Company or any of its Subsidiaries shall be subject to any order, decree or injunction of a court or agency of competent jurisdiction which enjoins, restrains or prohibits any of the transactions contemplated hereby. 6.1.3 This Agreement and the transactions contemplated hereby, including, without limitation, the Merger, shall have been approved by (a) the requisite vote of the stockholders of the Company in accordance with applicable law and (b) the Board of Directors of MidCity. 6.1.4 The Company shall have received the Fairness Opinion referred to in Section 5.11 and such opinion shall not have been withdrawn or materially and negatively modified. 6.2 Conditions to the Obligations of MidCity and NewCo under this Agreement. The obligations of the parties to effect the Merger are MidCity and NewCo under this Agreement shall be further subject to the satisfaction, at or prior to the ClosingEffective Time, of each of the following conditions:, any one or more of which may be waived, in writing, in whole or in part by MidCity. (a) If 6.2.1 This Agreement and the adoption transactions contemplated hereby shall have been approved by the requisite vote of this Agreement by the stockholders of the Company is in accordance with applicable law and stockholders holding not more than five percent (5%) of the outstanding shares of Company Common Stock shall have properly exercised appraisal rights with respect to their shares of Company Common Stock. 6.2.2 Each of the obligations of the Company required to be performed by applicable Legal Requirements, it at or prior to the Effective Time pursuant to the terms of this Agreement shall have been duly adopted by performed and complied with in all material respects and the Required Company Stockholder Vote. (b) (i) the waiting period applicable to the Merger under the HSR Act shall have expired or been terminated representations and (ii) all approvals, filings, or waiting periods under the Antitrust Laws set forth in Part 7.1(b) warranties of the Company Disclosure Schedule required to consummate the Merger contained in this Agreement shall have been obtained or filed or shall have expired or been terminated, true and correct in each case all material respects as set forth in Part 7.1(b) of the Company Disclosure Schedule. (c) Unless the Offer Termination shall have occurred, Merger Sub shall have accepted for payment all Shares validly tendered (and not validly withdrawn) pursuant to the Offer; provided, however, that neither Parent nor Merger Sub shall be entitled to assert the failure of this condition if, in breach date of this Agreement or the terms and as of the OfferEffective Time as though made at and as of the Effective Time, Merger Sub fails except that those representations and warranties which specifically relate to purchase any Shares validly tendered (an earlier specified date shall continue to be true and not validly withdrawn) pursuant to the Offercorrect in all material respects as of such specified date. (d) There shall not have been issued by any court 6.2.3 Any and all material permits, consents, waivers, clearances, approvals and authorizations of competent jurisdiction or remain all third parties and governmental bodies which are necessary in effect any temporary restraining order, preliminary or permanent injunction or other order preventing connection with the consummation of the Merger, nor transactions contemplated hereby (including the approvals and consents referenced in Section 1.2 hereof) shall any action have been takenobtained, and none of such permits, consents, waivers, clearances, approvals or authorizations shall contain any term or condition which MidCity reasonably determines to be materially burdensome to MidCity or its present or intended operations. 6.2.4 MidCity shall have received an opinion(s), dated the Effective Date, from Hins▇▇▇ & ▇ulb▇▇▇▇▇▇, ▇▇unsel for the Company, or such other counsel as shall be acceptable to MidCity, in substantially the form attached hereto as Exhibit 6.2.4. 6.2.5 No legal, administrative, arbitration or other proceedings shall have been instituted or, in the reasonable opinion of MidCity, be imminent by or before a court or any Legal Requirement governmental authority to enjoin, restrain or prohibit any of the transactions contemplated hereby or which, in the reasonable opinion of MidCity, could materially reduce or impair the value of the Company and its Subsidiaries, and no judgement, order promulgatedor decree of any court shall be in effect, enteredand no statute or rule, enforcedorder or regulation of any governmental agency shall be in effect that, enactedin the reasonable opinion of MidCity, issued materially reduces or deemed applicable impairs the value of the Company and its Subsidiaries. 6.2.6 From September 30, 1998 to the Merger by any Governmental Body which directly or indirectly prohibits, or makes illegalEffective Time, the acceptance for payment Company shall not have suffered a Material Adverse Effect. 6.2.7 MidCity shall have received certificates, dated as of or payment for Shares or a date as close as practicable to the consummation Effective Date, from appropriate authorities as to the valid existence and good standing of the Merger; provided, however, that a party shall not be permitted to invoke this Section 7.1(d) unless it Company and its Subsidiaries. 6.2.8 MidCity shall have taken all actions required under this Agreement to have any such order lifted.received the resignations and releases, effective as of the Effective Time, of Jani▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇nn▇▇▇ ▇. ▇▇▇e▇, ▇▇▇▇ ▇▇▇h ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ Gera▇▇

CONDITIONS PRECEDENT TO THE MERGER. 7.1 Section 6.1 Conditions to Each Party’s Obligation To Obligations to Effect the Merger. The respective obligations of Parent, Merger Sub and the parties Company to effect consummate the Merger are subject to the satisfactionsatisfaction (or waiver, at or if permissible pursuant to applicable Legal Requirements) prior to the Closing, Effective Time of each of the following conditions: (a) If the adoption of this Agreement by the stockholders of The Company will have received the Company is required by applicable Legal Requirements, this Agreement shall have been duly adopted by Required Vote at the Required Company Stockholder VoteMeeting (or any adjournment or postponement thereof). (b) (i) the Any waiting period (and any extension thereof) applicable to the Merger Transactions under the HSR Act shall have expired or been earlier terminated and (ii) all approvals, filings, no agreement with the FTC or waiting periods under the Antitrust Laws set forth in Part 7.1(b) of the Company Disclosure Schedule required DOJ not to consummate the Merger shall have been obtained or filed or shall have expired or been terminatedMerger, if such agreement is mutually agreed to in each case as set forth in Part 7.1(b) of writing by Parent and the Company Disclosure Schedule(which shall not be unreasonably withheld, conditioned or delayed), shall be in effect. (c) Unless the Offer Termination shall have occurred, Merger Sub shall have accepted for payment all Shares validly tendered (and not validly withdrawn) pursuant to the Offer; provided, however, that neither Parent nor Merger Sub shall be entitled to assert the failure of this condition if, in breach of this Agreement or the terms of the Offer, Merger Sub fails to purchase any Shares validly tendered (and not validly withdrawn) pursuant to the Offer. (d) There shall not have been issued by any court of competent jurisdiction or remain in effect any No temporary restraining order, preliminary or permanent injunction or other order Order preventing the consummation of the MergerMerger shall have been issued by any court of competent jurisdiction shall be in effect, nor shall any action Legal Requirement have been taken, or any Legal Requirement or order promulgated, entered, enforced, enacted, issued or deemed applicable to the Merger after the date hereof by any Governmental Body Body, in each case which directly or indirectly prohibits, prohibits or makes illegal, the acceptance for payment of or payment for Shares or illegal the consummation of the Merger; providedMerger (any such Order or Legal Requirement, howevera “Legal Restraint”). For the avoidance of doubt, that the receipt of a party Specified Letter by a Party shall not be permitted to invoke a basis for concluding that any closing condition is not satisfied for purposes of Section 6.1(b) or this Section 7.1(d6.1(c). Section 6.2 Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger will be subject to the satisfaction (or waiver, if permissible pursuant to applicable Legal Requirements) unless it prior to the Effective Time of each of the following conditions, any of which may be waived exclusively by Parent: (a) (i) the representations and warranties of the Company set forth in this Agreement (except for the representations and warranties described in clauses (ii) and (iii) of this Section 6.2(a)) shall be true and correct in all respects (without giving effect to any limitation as to “materiality”, “Material Adverse Effect”, or similar qualification or limitation set forth therein) on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except to the extent any such representation or warranty is expressly made as of an earlier date or time, in which case as of such earlier date or time), except where the failure of any such representation or warranty to be true and correct, has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (ii) the representations and warranties of the Company set forth in Section 2.1(a)-(d), Section 2.2, the first sentence of Section 2.3(f), Section 2.5(c), Section 2.26, Section 2.27 and the first sentence of Section 2.28 of this Agreement shall be true and correct (without giving effect to any limitation as to “materiality”, “Material Adverse Effect”, or similar qualification or limitation set forth therein) in all material respects on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except to the extent any such representation or warranty is expressly made as of an earlier date or time, in which case as of such earlier date or time), and (iii) the representations and warranties of the Company set forth in Section 2.3(a) (other than the fourth sentence thereof), Section 2.3(c) and Section 2.3(e) shall be true and correct (without giving effect to any limitation as to “materiality”, “Material Adverse Effect”, or similar qualification or limitation set forth therein) in all respects on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date except for any inaccuracies which are de minimis in amount and nature. (b) The Company shall have taken performed and complied in all actions material respects with the covenants and agreements it is required to comply with or perform at or prior to the Closing under this Agreement to Agreement. (c) Since the date of this Agreement, there shall not have occurred any such order liftedMaterial Adverse Effect that is continuing. (d) Parent and Merger Sub shall have received a certificate of the Company, validly executed for and on behalf of the Company and in its name by a duly authorized executive officer thereof, certifying that the conditions set forth in Section 6.2(a), Section 6.2(b) and Section 6.2(c) have been satisfied. (e) The Company shall have submitted all notifications and obtained all approvals contemplated under Schedule 6.2(e).

CONDITIONS PRECEDENT TO THE MERGER. 7.1 Section 6.1 Conditions to Each Party’s Obligation To Obligations to Effect the Merger. The respective obligations of Parent, Merger Sub and the parties Company to effect consummate the Merger are subject to the satisfactionsatisfaction (or waiver, if permissible pursuant to applicable Legal Requirements, by each such Party) at or prior to the Closing, Effective Time of each of the following conditions: (a) If the adoption of this Agreement by the stockholders of The Company will have received the Company is required by applicable Legal Requirements, this Agreement shall have been duly adopted by Required Vote at the Required Company Stockholder VoteMeeting. (b) (i) the Any waiting period (and any extension thereof) applicable to the Merger Transactions under the HSR Act shall have expired or been terminated and (ii) all approvals, filings, or waiting periods under the Antitrust Laws set forth in Part 7.1(b) of the Company Disclosure Schedule required to consummate the Merger shall have been obtained or filed or shall have expired or been terminated, in each case as set forth in Part 7.1(b) of the Company Disclosure Schedule. (c) Unless the Offer Termination No Governmental Body shall have occurred(i) enacted, issued or promulgated any Legal Requirement that is in effect as of immediately prior to the Effective Time or (ii) issued or granted any order or injunction (whether temporary, preliminary or permanent) that is in effect, in each case, which has the effect as of immediately prior to the Effective Time of enjoining or otherwise prohibiting the consummation of the Merger or the other Transactions (any such injunction, order or Legal Requirement, a “Legal Restraint”). Section 6.2 Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub shall have accepted for payment all Shares validly tendered to consummate the Merger will be subject to the satisfaction (and not validly withdrawn) or waiver, if permissible pursuant to applicable Legal Requirements) at or prior to the Offer; providedEffective Time of each of the following conditions, howeverany of which may be waived exclusively by Parent: (a) (i) the representations and warranties of the Company set forth in this Agreement (except for the representations and warranties in Section 2.1, that neither Parent nor Merger Sub Section 2.2, Section 2.3, Section 2.5(b), Section 2.19, Section 2.21, the first sentence of Section 2.23, and Section 2.24 of this Agreement) shall be entitled true and correct without giving effect to assert any qualification or limitation by the words “material,” “materially,” “in all material respects,” “materiality” or “Material Adverse Effect” set forth therein on and as of the Closing Date as if made on and as of such time (except to the extent any such representation or warranty is expressly made as of an earlier date or time, in which case as of such earlier date or time), except where the failure of this condition ifany such representation or warranty to be true and correct would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (ii) the representations and warranties of the Company set forth in Section 2.3(a), the first sentence and the final two sentences of Section 2.3(c) and the first sentence of Section 2.3(d) shall be true and correct, in breach each case except for any de minimis inaccuracies, on and as of the Closing Date as if made on and as of such time (except to the extent any such representation or warranty is expressly made as of an earlier date or time, in which case as of such earlier date or time), (iii) the representations and warranties of the Company set forth in Section 2.1, Section 2.2, Section 2.3 (to the extent not addressed by clause (ii) of this Agreement Section 6.2(a)), Section 2.19, Section 2.21, the first sentence of Section 2.23, and Section 2.24 (A) to the extent not qualified by the words “material,” “materially,” “in all material respects”, “materiality” or the terms “Material Adverse Effect” set forth therein, shall be true and correct in all material respects on and as of the Offer, Merger Sub fails to purchase any Shares validly tendered Closing Date as if made on and as of such time (and not validly withdrawn) pursuant except to the Offerextent any such representation or warranty is expressly made as of an earlier date or time, in which case as of such earlier date or time) and (B) to the extent qualified or limited by the words “material,” “materially,” “in all material respects”, “materiality” or “Material Adverse Effect” set forth therein shall be true and correct in all material respects (except to the extent any such representation or warranty is expressly made as of an earlier date or time, in which case as of such earlier date or time) and (iv) the representations and warranties set forth in Section 2.5(b) shall be true and correct in all respects on and as of the Closing Date as if made on and as of such time (except to the extent any such representation or warranty is expressly made as of an earlier date or time, in which case as of such earlier date or time). (b) The Company shall have complied with and performed in all material respects all of the covenants and agreements it is required to comply with or perform at or prior to the Closing under this Agreement. (c) Since the date of this Agreement, there shall not have occurred any Material Adverse Effect that is continuing. (d) There ▇▇▇▇▇▇ and ▇▇▇▇▇▇ Sub shall not have received a certificate of the Company, validly executed for and on behalf of the Company and in its name by a duly authorized executive officer thereof, certifying that the conditions set forth in Section 6.2(a), Section 6.2(b) and Section 6.2(c) 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 satisfied. (e) The Required Gaming Approvals 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 or the consummation of the Merger; provided, however, that a party shall not be permitted to invoke this Section 7.1(d) unless it shall have taken all actions required under this Agreement to have any such order liftedobtained.

CONDITIONS PRECEDENT TO THE MERGER. 7.1 Conditions Condition to the Obligations of Each Party’s Obligation To Effect the Merger. The respective obligations of the parties each Party to effect the Merger are subject to the satisfactionsatisfaction (or waiver by the Company, at or prior Parent and Merger Sub, to the Closing, extent permitted by applicable Legal Requirements) as of the Closing of each of the following conditions: (a) If the adoption of this Agreement by the stockholders of the Company is required by applicable Legal Requirements, this Agreement Stockholder Approval shall have been duly adopted by the Required Company Stockholder Vote.obtained; (b) (i) the waiting period applicable to the Merger under the HSR Act there shall have expired be no temporary restraining order, preliminary or been terminated permanent injunction, final judgment or other order issued, and (ii) all approvalsremaining in effect, filings, or waiting periods under the Antitrust Laws by any Governmental Body of competent jurisdiction in any jurisdiction set forth in Part Section 7.1(b) of the Company Disclosure Schedule required to consummate the Merger shall have been obtained (a “Specified Governmental Body”) prohibiting or filed or shall have expired or been terminated, in each case as set forth in Part 7.1(b) of the Company Disclosure Schedule. (c) Unless the Offer Termination shall have occurred, Merger Sub shall have accepted for payment all Shares validly tendered (and not validly withdrawn) pursuant to the Offer; provided, however, that neither Parent nor Merger Sub shall be entitled to assert the failure of this condition if, in breach of this Agreement or the terms of the Offer, Merger Sub fails to purchase any Shares validly tendered (and not validly withdrawn) pursuant to the Offer. (d) 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 enjoining the consummation of the Merger, nor shall any action Legal Requirement have been taken, or any Legal Requirement or order promulgated, entered, enforced, enacted, issued or deemed applicable to the Merger by any Specified Governmental Body which directly or indirectly prohibits, remains in effect and prohibits or makes illegal, the acceptance for payment of or payment for Shares or illegal the consummation of the Merger; and (c) (i) the waiting period (or any extension thereof) applicable to consummation of the Merger under the HSR Act shall have expired or been terminated, as well as any agreement not to close embodied in a “timing agreement” between the parties and a Governmental Body, and (ii) all other actions or non-actions, Consents, waivers, clearances, decisions, declarations, approvals, and the lapse of waiting periods with respect to the Transactions, in each case as listed in Section 7.1(c)(i) of the Company Disclosure Schedule, shall have been made, terminated, expired or obtained, as applicable, provided, however, that a party Section 7.1(c)(i) of the Company Disclosure Schedule shall not be permitted deemed updated to invoke this include such additional jurisdictions in the list set forth on Section 7.1(d7.1(c)(ii) unless it shall have taken all actions required under of the Company Disclosure Schedule as mutually agreed in good faith by Parent and the Company within fifteen (15) days following the date of this Agreement (all such actions or non-actions, waivers, Consents, clearances, decisions, declarations, approvals, and the lapse of waiting periods, including under the HSR Act, of such jurisdictions being the “Requisite Regulatory Approvals”). 7.2 Conditions to have the Obligations of Parent and Merger Sub. The obligations of each of Parent and Merger Sub to effect the Merger are subject to the satisfaction (or waiver by Parent, on its own behalf and on behalf of Merger Sub, to the extent permitted by applicable Legal Requirements) as of the Closing of each of the following conditions: (a) (i) the representations and warranties of the Company set forth in Section 3.3(a), (c), and (e) (Capitalization, Etc.) of the Agreement shall be accurate, except for any de minimis inaccuracies, as of the date of the Agreement and at and as of the Closing Date as if made on and as of the Closing Date (except to the extent any such order lifted.representation or warranty expressly relates to an earlier date or period, in which case as of such date or period);

CONDITIONS PRECEDENT TO THE MERGER. 7.1 Section 6.1 Conditions to Each Party’s Obligation To Obligations to Effect the Merger. The respective obligations of Parent, Merger Sub and the parties Company to effect consummate the Merger are subject to the satisfactionsatisfaction (or waiver, if permissible pursuant to applicable Legal Requirements, by each such Party) at or prior to the Closing, Effective Time of each of the following conditions: (a) If the adoption of this Agreement by the stockholders of The Company will have received the Company is required by applicable Legal Requirements, this Agreement shall have been duly adopted by Required Vote at the Required Company Stockholder VoteMeeting (or any adjournment or postponement thereof). (b) (i) the Any waiting period (and any extension thereof) applicable to the Merger Transactions under the HSR Act shall have expired or been terminated and (ii) all approvals, filings, or waiting periods under the Antitrust Laws set forth in Part 7.1(b) of the Company Disclosure Schedule required to consummate the Merger shall have been obtained or filed or shall have expired or been earlier terminated, in each case as set forth in Part 7.1(b) of the Company Disclosure Schedule. (c) Unless the Offer Termination No Governmental Body shall have occurred(i) enacted, issued or promulgated any Legal Requirement that is in effect as of immediately prior to the Effective Time or (ii) issued or granted any order or injunction (whether temporary, preliminary or permanent) that is in effect, in each case, which has the effect as of immediately prior to the Effective Time of enjoining or otherwise prohibiting the consummation of the Merger (any such injunction, order or Legal Requirement, a “Legal Restraint”). Section 6.2 Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub shall have accepted for payment all Shares validly tendered to consummate the Merger will be subject to the satisfaction (and not validly withdrawn) or waiver, if permissible pursuant to applicable Legal Requirements) at or prior to the Offer; providedEffective Time of each of the following conditions, howeverany of which may be waived exclusively by Parent: (a) (i) the representations and warranties of the Company set forth in this Agreement (except for the representations and warranties in Section 2.1, that neither Parent nor Merger Sub the second sentence of Section 2.2, the first and last sentence of Section 2.3(a), the last sentence of Section 2.3(b), the first and last sentences of Section 2.3(c) (excluding the reference to Section 2.3(d) in the last sentence of Section 2.3(c)), Section 2.3(e) (solely to the extent such representations and warranties relate to the capital stock or other securities of the Company), Section 2.3(f), Section 2.5(b), Section 2.19, Section 2.21, the first sentence of Section 2.23 and Section 2.24 of this Agreement) shall be entitled true and correct (without giving effect to assert any qualification or limitation as to “materiality” or “Material Adverse Effect” set forth therein) on and as of the Closing Date as if made on and as of such time (except to the extent any such representation or warranty is expressly made as of an earlier date or time, in which case as of such earlier date or time), except where the failure of this condition ifany such representation or warranty to be so true and correct would not reasonably be expected to have, individually or in breach the aggregate, a Material Adverse Effect, (ii) the representations and warranties of the Company set forth in the first sentence of Section 2.3(a), the last sentence of Section 2.3(b), the first and last sentences of Section 2.3(c) (excluding the reference to Section 2.3(d) in the last sentence of Section 2.3(c)), Section 2.3(e) (solely to the extent such representations and warranties relate to the capital stock or other securities of the Company) and Section 2.5(b) of this Agreement shall be true and correct in all respects (other than, with respect to the first sentence of Section 2.3(a), the last sentence of Section 2.3(b), the first and last sentences of Section 2.3(c) (excluding the reference to Section 2.3(d) in the last sentence of Section 2.3(c)) and Section 2.3(e) (solely to the extent such representations and warranties relate to the capital stock or the terms other securities of the OfferCompany), Merger Sub fails to purchase any Shares validly tendered de minimis inaccuracies) on and as of the Closing Date as if made on and as of such time (and not validly withdrawn) pursuant except to the Offerextent any such representation or warranty is expressly made as of an earlier date or time, in which case as of such earlier date or time) and (iii) the representations and warranties of the Company set forth in Section 2.1, the last sentence of Section 2.3(a), the second sentence of Section 2.2, Section 2.3(f), Section 2.19, Section 2.21, the first sentence of Section 2.23, and Section 2.24 of this Agreement (A) to the extent not qualified by the words “material,” “materially,” “in all material respects”, “materiality” or “Material Adverse Effect” set forth therein shall be true and correct in all material respects on and as of the Closing Date as if made on and as of such time (except to the extent any such representation or warranty is expressly made as of an earlier date or time, in which case as of such earlier date or time) and (B) to the extent qualified or limited by the words “material,” “materially,” “in all material respects”, “materiality” or “Material Adverse Effect” set forth therein shall be true and correct in all respects (except to the extent any such representation or warranty is expressly made as of an earlier date or time, in which case as of such earlier date or time). (b) The Company shall have complied with and performed in all material respects all of the covenants and agreements it is required to comply with or perform at or prior to the Closing under this Agreement. (c) Since the date of this Agreement, there shall not have occurred any Material Adverse Effect that is continuing. (d) There P▇▇▇▇▇ and M▇▇▇▇▇ Sub shall not have received a certificate of the Company, validly executed for and on behalf of the Company and in its name by a duly authorized executive officer thereof, certifying that the conditions set forth in Section 6.2(a), Section 6.2(b) and Section 6.2(c) 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 or the consummation of the Merger; provided, however, that a party shall not be permitted to invoke this Section 7.1(d) unless it shall have taken all actions required under this Agreement to have any such order liftedsatisfied.