Common use of Conditions to Obligation of the Company to Effect the Merger Clause in Contracts

Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions: (a) Parent and Merger Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Effective Time and the representations and warranties of Parent and Merger Subsidiary contained in this Agreement shall be true and correct on and as of the Effective Time as if made at and as of such date (except to the extent that such representations and warranties speak as of an earlier date, and which need be true and correct as of such earlier date) except for such failures to perform or to be true and correct that would not have a Parent Material Adverse Effect, and the Company shall have received a certificate of the chief executive officer or the chief financial officer of Parent to that effect; (b) all Parent Statutory Approvals and Company Statutory Approvals required to be obtained in order to permit consummation of the Merger under applicable law shall have been obtained, except for any such Parent Statutory Approvals or Company Statutory Approvals the unavailability of which would not, individually or in the aggregate (i) have a Company Material Adverse Effect after the Effective Time, or (ii) result in the Company or its subsidiaries failing to meet the standards for licensing, suitability or character under any Racing Laws relating to the conduct of Parent's or the Company's business which (after taking into account the anticipated impact of such failure to so meet such standards on other authorities) would have a Company Material Adverse Effect (after giving effect to the Merger); (c) The Parent shall have obtained the consent or approval to the transactions contemplated by this Agreement of each person from whom such consent or approval is required under any loan or credit agreement, note, mortgage, indenture, lease or other agreement or instrument to which the Parent is a party or by which it is bound except where the failure to obtain such consents or approvals would not, in the reasonable opinion of the Company, individually or in the aggregate, have a Parent Material Adverse Effect, or materially affect the consummation of the transactions contemplated hereby; and (d) The Parent shall have obtained and segregated for payment to the Company sufficient cash funds as required by the terms hereof, to pay in full at the Effective Time, or promptly thereafter, to the holders of the Common Stock, the Exchange Funds and shall have deposited the Exchange Funds with the Disbursing Agent pursuant to Section 1.05 hereof.

Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the The obligation of the Company to effect the Merger shall will be subject to the fulfillment at or prior to the Effective Time of the additional following additional conditions: (a) Parent TCI Music and Merger Subsidiary Acquisition Sub shall have performed in all material respects their agreements contained in this Agreement required to be performed on by them at or prior to the Effective Time and the representations and warranties of Parent TCI Music and Merger Subsidiary contained Acquisition Sub set forth in this Agreement shall be if qualified by materiality are true in all respects and correct on if not so qualified are true in all material respects when made and at and as of the Effective Time as if made at and as of such date (except to the extent that such representations and warranties speak as of an earlier date, and which need be true and correct as of such earlier date) except for such failures to perform or to be true and correct that would not have a Parent Material Adverse Effect, time and the Company shall have received a certificate of TCI Music and Acquisition Sub executed on behalf of each such corporation by the chief executive officer President or the chief financial officer a Vice President of Parent such corporation to that effect;. (b) all Parent Statutory Approvals and The Company Statutory Approvals required to be obtained in order to permit consummation of the Merger under applicable law shall have been obtained, except for any such Parent Statutory Approvals or Company Statutory Approvals received the unavailability opinion of counsel to TCI Music and Acquisition Sub (which would not, individually or in the aggregate (icounsel may be an employee of TCI) have a Company Material Adverse Effect after the Effective Time, or (ii) result in the Company or its subsidiaries failing to meet the standards for licensing, suitability or character under any Racing Laws relating substantially to the conduct of Parent's or the Company's business which (after taking into account the anticipated impact of such failure to so meet such standards on other authorities) would have a Company Material Adverse Effect (after giving effect to the Merger);set forth in Exhibit B. (c) The Parent Company shall have obtained received the consent opinion of Eric ▇. ▇▇▇▇▇▇, ▇▇q. (or approval such other evidence as may be reasonably satisfactory to the Company) to the effect that the Merger, when completed in accordance with this Agreement, will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code or otherwise shall have been provided with evidence reasonably satisfactory to the Company that the Merger will qualify for such treatment. (d) There shall have been no material adverse change in the financial condition, results of operations, assets, liabilities or business of TCI Music since the date of this Agreement. (e) TCI (or one or more of its Subsidiaries) and TCI Music shall have entered into an amendment to the Contribution Agreement in accordance with the terms set forth in the term sheet attached as Schedule 8.2(e), together with one or more other agreements as may be necessary to effect the transactions contemplated by this Agreement such term sheet. (f) TCI shall have agreed to extend the maturity of each person from whom such consent or approval is the promissory note dated July 11, 1997, payable by TCI Music to the order of TCI in the principal amount of $40,000,000, for a period, not to exceed 18 months, as may reasonably be required under any loan or credit agreement, note, mortgage, indenture, lease or other agreement or instrument to which the Parent is a party or by which it is bound except where the failure permit TCI Music to obtain such consents or approvals would not, in other financing sufficient to repay the reasonable opinion of the Company, individually or in the aggregate, have a Parent Material Adverse Effect, or materially affect the consummation of the transactions contemplated hereby; and (d) The Parent shall have obtained and segregated for payment to the Company sufficient cash funds as required by the terms hereof, to pay in full at the Effective Time, or promptly thereafter, to the holders of the Common Stock, the Exchange Funds and shall have deposited the Exchange Funds with the Disbursing Agent pursuant to Section 1.05 hereofloan evidenced thereby.

Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect consummate the Merger shall be subject to the fulfillment at or prior to the Merger Effective Time of the following additional conditions: (a) Parent and Merger Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Effective Time and (i) the representations and warranties of Parent the Yuma Entities set forth in Sections 4.02 (Capitalization), and 4.03(a) – (c) (Authority; Non-Contravention) shall be true and correct in all material respects as of the date hereof and as of the Merger Subsidiary Effective Time as if made on and as of the Merger Effective Time (or, if given as of a specific date, at and as of such date) and (ii) the other representations and warranties of the Yuma Entities contained in this Agreement shall be true and correct in all material respects as of the date hereof and as of the Merger Effective Time as if made on and as of the Merger Effective Time (or, if given as if made of a specific date, at and as of such date date), except in the case of this clause (except ii) for changes expressly permitted by this Agreement. The Company shall have received a certificate of the chief executive officer or the chief financial officer of Yuma to that effect; (b) each Yuma Entity shall have performed in all material respects all obligations required to be performed by it under this Agreement on or prior to the extent that such representations and warranties speak as of an earlier date, and which need be true and correct as of such earlier date) except for such failures to perform or to be true and correct that would not have a Parent Material Adverse Effect, Merger Effective Time and the Company shall have received a certificate of the chief executive officer or the chief financial officer of Parent Yuma to that effect; (bc) all Parent Statutory Approvals and Company Statutory Approvals required Prior to be obtained in order to permit consummation the Merger Effective Time, each of the Merger under applicable law seven (7) Persons named on Exhibit G, attached hereto shall have been obtainedagreed to serve as a member of the board of Yuma Delaware if elected, except for any and the Yuma board of directors shall have confirmed that upon the election of such Parent Statutory Approvals persons, the Yuma Delaware Board shall have a sufficient number of “independent directors” to satisfy applicable SEC and NYSE MKT rules. The Yuma Delaware Board shall take such action as may be necessary or desirable regarding such election and appointment of the foregoing individuals; (d) Pursuant to terms of the Merger, and concurrently with the effectiveness thereof, the board of directors of Yuma Delaware (the “Yuma Delaware Board”) shall be set and established at seven (7) members and each of the Persons named on Exhibit G attached hereto shall be elected to serve as directors of Yuma Delaware to hold office in accordance with the certificate of incorporation and the bylaws of Yuma Delaware until their respective successors are duly elected or appointed and qualified; (e) the Company Statutory Approvals shall have received the unavailability opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel to the Company, in form and substance reasonably satisfactory to the Company, on the date on which the Registration Statement is filed and on the Closing Date, in each case dated as of such respective date, rendered on the basis of facts, representations and assumptions set forth in such opinion and the certificates obtained from officers of the Company, Yuma and Yuma Delaware, all of which would notare consistent with the state of facts existing as of the date on which the Registration Statement is filed and the Merger Effective Time, individually or in as applicable, to the aggregate effect that (i) have the Merger will qualify as a Company Material Adverse Effect after reorganization within the Effective Time, or meaning of Section 368(a) of the Code and (ii) result in the Company or its subsidiaries failing to meet the standards for licensing, suitability or character under any Racing Laws relating and Yuma Delaware will each be a “party to the conduct reorganization” within the meaning of Parent's or Section 368 of the Company's business which (after taking into account Code. In rendering the anticipated impact of such failure opinion described in this Section 8.02(e), ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall have received and may rely upon the certificates and representations referred to so meet such standards on other authorities) would have a Company Material Adverse Effect (after giving effect to the Mergerin Section 6.14(f); (cf) The Parent Yuma and Yuma Delaware must have delivered to its counsel, the Company and the Company’s counsel a certificate signed on behalf of Yuma and Yuma Delaware by a duly authorized officer of Yuma and Yuma Delaware certifying the representations set forth in Section 4.13 and as otherwise reasonably requested by the Company’s or Yuma and Yuma Delaware’s tax counsel; (g) the Company shall have been furnished with evidence satisfactory to it that Yuma has obtained the consent or approval consents, approvals and waivers set forth in Section 8.02(g) of the Yuma Disclosure Schedule; (h) the certificate of incorporation of Delaware Merger Subsidiary shall be in a form and substance acceptable to the transactions contemplated by this Agreement of each person from whom such consent or approval is required under any loan or credit agreement, note, mortgage, indenture, lease or other agreement or instrument to which Company in its reasonable discretion at the Parent is a party or by which it is bound except where the failure to obtain such consents or approvals would not, in the reasonable opinion of the Company, individually or in the aggregate, have a Parent Material Adverse Effect, or materially affect the consummation of the transactions contemplated herebyMerger Effective Time; and (di) The Parent the Registration Rights Agreement in the form of Exhibit H shall have obtained be executed by Yuma Delaware and segregated delivered for payment execution to (A) the Company sufficient cash funds as required by the terms hereof, to pay in full at the Effective Time, or promptly thereafter, to the holders Registration Rights Persons and (B) each of the Common Stock, the Exchange Funds and shall have deposited the Exchange Funds with the Disbursing Agent Additional DPAC Holders who sign both a Lock-Up Agreement pursuant to Section 1.05 hereof6.26 and a voting agreement in substantially the form of the Company Voting Agreement pursuant to Section 6.28.

Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the The obligation of the Company to effect the Merger shall be is further subject to the fulfillment at or prior to the Effective Time of the following additional conditions: (a) (i) The representations and warranties of Parent contained herein (other than the representation and Merger Subsidiary warranties set forth in Sections 4.2 and 4.3(a)) shall be true and correct as of the Effective Time with the same effect as though made as of the Effective Time except (x) for changes specifically permitted by the terms of this Agreement, (y) that the accuracy of representations and warranties that by their terms speak as of the date of this Agreement or some other date will be determined as of such date and not as of the Effective Time and (z) where any such failure of the representations and warranties in the aggregate to be true and correct would not reasonably be expected to have a Material Adverse Effect on Parent (without giving effect to any “materiality” or “Material Adverse Effect” qualifications contained therein); and (ii) the representations and warranties of Parent set forth in Sections 4.2 and 4.3(a) shall be true and correct in all material respects both when made and at and as of the Effective Time except (x) for changes specifically permitted by the terms of this Agreement, (y) that the accuracy of representations and warranties that by their terms speak as of the date of this Agreement or some other date will be determined as of such date; (b) Parent shall have performed in all material respects their agreements contained all obligations and complied in all material respects with all covenants required by this Agreement required to be performed on or complied with by it prior to the Effective Time and the representations and warranties of Parent and Merger Subsidiary contained in this Agreement shall be true and correct on and as of the Effective Time as if made at and as of such date (except to the extent that such representations and warranties speak as of an earlier date, and which need be true and correct as of such earlier date) except for such failures to perform or to be true and correct that would not have a Parent Material Adverse Effect, and the Company shall have received a certificate of the chief executive officer or the chief financial officer of Parent to that effect; (b) all Parent Statutory Approvals and Company Statutory Approvals required to be obtained in order to permit consummation of the Merger under applicable law shall have been obtained, except for any such Parent Statutory Approvals or Company Statutory Approvals the unavailability of which would not, individually or in the aggregate (i) have a Company Material Adverse Effect after the Effective Time, or (ii) result in the Company or its subsidiaries failing to meet the standards for licensing, suitability or character under any Racing Laws relating to the conduct of Parent's or the Company's business which (after taking into account the anticipated impact of such failure to so meet such standards on other authorities) would have a Company Material Adverse Effect (after giving effect to the Merger); (c) The Board of Directors of Parent shall have obtained taken all actions, including the consent or approval adoption of resolutions (which resolutions shall remain in full force and effect), necessary to increase the number of directors constituting the Board of Directors of Parent in accordance with Section 5.17 and appoint those persons named in Section 5.17 of the Company Disclosure Schedule to positions on the Board of Directors of Parent in the classes identified therein; (d) Parent shall have delivered to the transactions contemplated Company a certificate, dated the Effective Time and signed by this Agreement of each person from whom such consent its Chief Executive Officer or approval is required under any loan or credit agreement, note, mortgage, indenture, lease or other agreement or instrument Executive Vice President certifying to which the Parent is a party or by which it is bound except where effect that the failure to obtain such consents or approvals would not, conditions set forth in the reasonable opinion of the Company, individually or in the aggregate, Sections 6.2(a) and 6.2(b) have a Parent Material Adverse Effect, or materially affect the consummation of the transactions contemplated herebybeen satisfied; and (de) The Except as disclosed in the Parent SEC Documents (excluding any disclosures set forth in any section of a filed Parent SEC Document entitled “Risk Factors” or “Forward-Looking Statements” or any other disclosures included in such filings to the extent that they are forward-looking in nature) or in the Parent Disclosure Schedule or as expressly contemplated by this Agreement, since the date of this Agreement, there shall have obtained and segregated for payment been no event, occurrence, development or state of circumstances or facts that would reasonably be expected to the Company sufficient cash funds as required by the terms hereof, to pay in full at the Effective Time, or promptly thereafter, to the holders of the Common Stock, the Exchange Funds and shall have deposited the Exchange Funds with the Disbursing Agent pursuant to Section 1.05 hereofa Material Adverse Effect on Parent.

Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the The obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time Closing Date of the following additional conditions: (a) The Parent and the Merger Subsidiary Sub shall have performed or be in compliance in all material respects their with agreements contained in this Agreement required to be performed on or prior to the Effective Time and the Closing Date. The representations and warranties of the Parent and the Merger Subsidiary Sub contained in this Agreement and in any document delivered in connection herewith shall be true and correct on and as of the Effective Time as if made at and as of such date (except to the extent that such representations and warranties speak as of an earlier date, and which need be true and correct as of such earlier date) except for such failures to perform or to be true and correct that would not have a Parent Material Adverse Effectthe Closing Date, and the Company shall have received a certificate of the chief executive officer or President of the chief financial officer of Parent Parent, dated the Closing Date, certifying to that such effect;. (b) all Parent Statutory Approvals and Company Statutory Approvals required to be obtained in order to permit consummation of the Merger under applicable law There shall have been obtained, except for any such Parent Statutory Approvals or Company Statutory Approvals the unavailability of which would not, individually or in the aggregate (i) have a Company Material Adverse Effect after the Effective Time, or (ii) result in delivered to the Company or its subsidiaries failing to meet certificates, dated within five days of the standards for licensingClosing Date, suitability or character under any Racing Laws relating of the Secretary of State of the State of Nevada and the State of California, with respect to the conduct incorporation, subsistence, and good legal standing of Parent's or the Company's business which (after taking into account Parent and the anticipated impact of such failure to so meet such standards on other authorities) would have a Company Material Adverse Effect (after giving effect to the Merger);Merger Sub, respectively. (c) The Parent shall have obtained All consents and approvals of any third parties required in connection with the consent or approval to execution and delivery of this Agreement and the consummation of the transactions contemplated by hereby shall have been obtained and delivered to the Company including a Release from each executive officer. (d) There shall have been delivered to the Company certificates, dated as of the Closing Date, of the President and Secretary, respectively, of the Parent and the Merger Sub as set forth as Exhibit 9.2(d), (i) to the effect that the Articles of Incorporation of the Parent and Articles of Incorporation of Merger Sub have not been amended since the date of this Agreement, (ii) attaching a true and complete copy of the Bylaws of the Parent and the Merger Sub as in effect on the Closing Date, (iii) attaching a true and complete copy of the resolutions of the Board of Directors of the Parent and the Merger Sub approving the execution and delivery of this Agreement of each person from whom such consent or approval is required under any loan or credit agreement, note, mortgage, indenture, lease or other agreement or instrument to which the Parent is a party or by which it is bound except where the failure to obtain such consents or approvals would not, in the reasonable opinion of the Company, individually or in the aggregate, have a Parent Material Adverse Effect, or materially affect and authorizing the consummation of the transactions contemplated hereby; andand (iv) to the effect that each of the provisions of Section 9.2(a) are true and correct as of the Closing Date. (de) There shall have been delivered to the Company certificates, dated as of the Closing Date, with respect to the incumbency and signatures of all officers of the Parent and the Merger Sub signing this Agreement and any other certificate, agreement, or instrument delivered on behalf of the Parent and the Merger Sub in connection with this Agreement. (f) The Parent shall have obtained and segregated for payment delivered to the Company sufficient cash funds an opinion of its counsel in the form attached hereto as required by Exhibit "9.2". (g) Since the terms hereofClosing Date, to pay there shall not have been any material adverse change in full at the Effective Timecondition (financial or otherwise), business, properties or promptly thereafter, to the holders assets of the Common Stock, Parent or the Exchange Funds and shall have deposited the Exchange Funds with the Disbursing Agent pursuant to Section 1.05 hereofSubsidiaries.

Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the The obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time Date of the following additional conditions: (a) Except as contemplated or permitted by this Agreement, (i) Parent and Merger Subsidiary Acquisition shall have performed in all material respects each of their agreements contained in this Agreement required to be performed on or prior to the Effective Time Date; and (ii) the representations and warranties of Parent and Merger Subsidiary Acquisition contained in this Agreement shall be true and correct in all material respects on and as of the Effective Time Date as if made at on and as of such date (except to the extent that such representations and warranties speak as of an earlier date, and which need be true and correct as of such earlier date) except for such failures to perform or to be true and correct that would not have a Parent Material Adverse Effect, and the Company shall have received a certificate of Parent, signed by the chief executive officer or President and the chief financial officer Chief Financial Officer of Parent Parent, to that effect;. (b) all Parent Statutory Approvals and The Company Statutory Approvals required to be obtained in order to permit consummation of the Merger under applicable law shall have been obtainedreceived an opinion from Freedman, except for any such Levy, Kroll & Simonds, counsel to Parent Statutory Approvals or Company Statutory Approvals and Acquisition, dated the unavailability of which would notEffect▇▇▇ ▇▇▇▇, individually or in to the aggregate effect that: (i) have Parent and Acquisition are each a Company Material Adverse Effect after corporation duly organized and validly existing under the Effective Time, or laws of the State of Delaware. (ii) result in Parent and Acquisition each has the Company or its subsidiaries failing corporate power to meet enter into the standards for licensing, suitability or character under any Racing Laws relating Agreement and to the conduct of Parent's or the Company's business which (after taking into account the anticipated impact of such failure to so meet such standards on other authorities) would have a Company Material Adverse Effect (after giving effect to the Merger); (c) The Parent shall have obtained the consent or approval to consummate the transactions contemplated by this Agreement of each person from whom such consent or approval is required under any loan or credit agreement, note, mortgage, indenture, lease or other agreement or instrument to which hereby; and the Parent is a party or by which it is bound except where the failure to obtain such consents or approvals would not, in the reasonable opinion execution and delivery of the Company, individually or in the aggregate, have a Parent Material Adverse Effect, or materially affect Agreement and the consummation of the transactions contemplated hereby; andhereby have been duly authorized by requisite corporate action taken on the part of Parent and Acquisition, respectively. (diii) The Agreement has been executed and delivered by each of Parent shall have obtained and segregated for payment to Acquisition and (assuming the Company sufficient cash funds as required valid authorization, execution and delivery of the Agreement by the terms hereofCompany) is a valid and binding obligation of Parent and Acquisition enforceable in accordance with its terms, except (A) as enforceability may be limited by any bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to pay creditors' rights, and (B) as such enforceability is subject to general principles of equity (regardless of whether such enforceability is considered in full a proceeding in equity or at law). (iv) Neither the Effective Timeexecution, delivery nor performance of the Agreement by Parent and Acquisition, nor the consummation of the transactions contemplated thereby, will violate the Certificate of Incorporation or promptly thereafterBylaws of Parent or Acquisition and, to the holders actual knowledge of the Common Stocksuch counsel, the Exchange Funds and without having made any independent investigation, will not constitute a violation of or a default under (except for any such violation or default as to which requisite waivers or consent either shall have deposited been obtained by Parent and Acquisition by the Exchange Funds Effective Date or shall have been waived by the Company in writing) any material contract, agreement or instrument to which Parent or Acquisition is subject and which has been specifically identified to such counsel by Parent or Acquisition in connection with rendering such opinion. (v) The shares of Parent Common Stock to be issued in connection with the Disbursing Agent pursuant transactions contemplated by the Agreement, are duly authorized and reserved for issuance and, when issued as contemplated by the Agreement will be validly issued, fully paid and non-assessable. As to Section 1.05 hereofany matter in such opinion which involves matters of fact, such counsel may rely upon the certificates of officers and directors of Parent and Acquisition and of public officials. (c) There shall not have arisen prior to the Effective Date any event that causes a Material Adverse Effect upon Parent and its subsidiaries, taken as a whole.

Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions: (a) Parent Tribe and Merger Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Effective Time and the representations and warranties of Parent Tribe and Merger Subsidiary contained in this Agreement shall be true and correct on and as of the Effective Time as if made at and as of such date (except to the extent that such representations and warranties speak as of an earlier date), and which need be true and correct as of such earlier date) except for such failures to perform or, with respect to representations and warranties not qualified as to materiality or Tribe Material Adverse Effect, to be true and correct correct, that would not reasonably be expected to have a Parent an Tribe Material Adverse Effect, and the Company shall have received a certificate of the chief executive officer or the chief financial officer of Parent Tribe to that effect;; and (b) all Parent Tribe Required Statutory Approvals and Company Required Statutory Approvals required to be obtained in order to permit consummation of the Merger under applicable law shall have been obtained, except for any such Parent Tribe Statutory Approvals or Company Statutory Approvals the whose unavailability of which would not, individually singly or in the aggregate aggregate, reasonably be expected to (i) have a Company Material Adverse Effect after giving effect to the Effective TimeMerger, or (ii) result in the Company or its subsidiaries failing to meet the standards for licensing, suitability or character under any Racing Gaming Laws relating to the conduct of Parent's Tribe’s or the Company's ’s business which (after taking into account the anticipated impact of such failure to so meet such standards on other authorities) would reasonably be expected to have a Company Material Adverse Effect (after giving effect to the Merger);. (c) The Parent shall have obtained the consent or approval funds required to the transactions contemplated by this Agreement of each person from whom such consent or approval is required under any loan or credit agreement, note, mortgage, indenture, lease or other agreement or instrument to which the Parent is a party or by which it is bound except where the failure to obtain such consents or approvals would not, in the reasonable opinion of the Company, individually or in the aggregate, have a Parent Material Adverse Effect, or materially affect the consummation of the transactions contemplated hereby; and (d) The Parent shall have obtained and segregated for payment to the Company sufficient cash funds as required by the terms hereof, to pay in full at the Effective Time, or promptly thereafter, to the holders of the Common Stock, the Exchange Funds and shall have be deposited the Exchange Funds with the Disbursing Agent pursuant to by the Escrow Agent as provided in Section 1.05 hereof1.05(a) have been so deposited.

Conditions to Obligation of the Company to Effect the Merger. Unless waived by In addition to the Companyconditions set forth in Section 6.1 above, the obligation of the Company to effect the Merger shall will be subject to the fulfillment at or prior to the Effective Time Closing Date of the following additional conditions: (a) Each of Parent and Merger Subsidiary shall Sub will have performed in all material respects their its agreements and covenants contained in this Agreement required to be performed on or prior to the Effective Time and Closing Date. (b) Other than the representations and warranties of Parent and Merger Subsidiary Sub contained in Section 4.2 (Authorization, Validity, and Effect of Agreements), the representations and warranties of Parent and Merger Sub contained in this Agreement shall be true and correct on and as of the Effective Time as if made at and as of such date in any document delivered in connection herewith (except to the extent that such representations and warranties speak as of an earlier date, and which need disregarding for this purpose any limitation or qualification by “materiality” or “Parent Material Adverse Effect”) will be true and correct as of such earlier date) except for such failures to perform or to be true and correct that would not have a Parent Material Adverse Effectthe Closing Date, and the Company shall will have received a certificate of the chief executive officer President or the chief financial officer a Vice President of each of Parent and Merger Sub, dated the Closing Date, certifying to such effect; provided, however, that effect; (bnotwithstanding anything herein to the contrary, this Section 6.2(b) all Parent Statutory Approvals and Company Statutory Approvals required will be deemed to be obtained in order to permit consummation of the Merger under applicable law shall have been obtainedsatisfied even if such representations or warranties are not true and correct, except for any such Parent Statutory Approvals or Company Statutory Approvals the unavailability of which would not, individually or in the aggregate (i) have a Company Material Adverse Effect after the Effective Time, or (ii) result in the Company or its subsidiaries failing to meet the standards for licensing, suitability or character under any Racing Laws relating to the conduct of Parent's or the Company's business which (after taking into account the anticipated impact of such failure to so meet such standards on other authorities) would have a Company Material Adverse Effect (after giving effect to the Merger); (c) The Parent shall have obtained the consent or approval to the transactions contemplated by this Agreement of each person from whom such consent or approval is required under any loan or credit agreement, note, mortgage, indenture, lease or other agreement or instrument to which the Parent is a party or by which it is bound except where unless the failure to obtain such consents perform or approvals would not, in the reasonable opinion failure of any of the Companyrepresentations or warranties to be so true and correct would have or would reasonably be likely to have, individually or in the aggregate, have a Parent Material Adverse Effect. (c) The representations and warranties of Parent and Merger Sub contained in Section 4.2 (Authorization, Validity, and Effect of Agreements) will be true and correct in all respects as of the date hereof and as of the Closing Date, as if made on the Closing Date. (d) There will have been delivered to the Company certificates, dated within five days of the Closing Date, (i) of the Secretary of State of the State of Delaware, with respect to the incorporation and good standing of Parent and (ii) of the Secretary of State of the State of Nevada, with respect to the incorporation and good standing of Merger Sub. (e) All consents and approvals of any third parties required in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby will have been obtained and delivered to the Company. (f) There will have been delivered to the Company certificates, dated the Closing Date, of the President or materially affect Vice President and Secretary, respectively, of Parent and Merger Sub, attaching a true and complete copy of the resolutions of the Board of Directors of Parent and Merger Sub approving the execution and delivery of this Agreement and authorizing the consummation of the transactions contemplated hereby; and. (dg) The Each of Parent shall and Merger Sub will have obtained and segregated for payment delivered to the Company sufficient cash funds a certificate of the President or a Vice President of Parent and Merger Sub, respectively, dated the Closing Date, certifying as required by the terms hereof, to pay in full at the Effective Time, or promptly thereafter, to the holders satisfaction of the Common Stockconditions specified in Sections 6.2(a), the Exchange Funds 6.2(b) and shall have deposited the Exchange Funds with the Disbursing Agent pursuant to Section 1.05 hereof6.2(c).

Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the The obligation of the Company to effect the Merger shall be subject to the fulfillment at satisfaction on or prior to the Effective Time Closing Date of the following additional conditionsconditions unless waived by the Company: (a) Parent and Merger Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Effective Time and the The representations and warranties of Parent and Merger Subsidiary contained Sub set forth in this Agreement shall be true and correct on and in all respects as of the Effective Time as if made at date of this Agreement and as of such date (except to the extent that such representations and warranties speak as of an earlier date, and which need be true and correct ) as of the Closing Date as though made on and as of the Closing Date; provided, however, that for purposes of determining the satisfaction of this condition, no effect shall be given to any exception in such earlier date) except for such failures representations and warranties relating to perform materiality or to be true and correct that would not have a Parent Material Adverse Effect, and the Company provided, further, however, that for purposes of this condition, such representations and warranties shall have received a certificate of the chief executive officer or the chief financial officer of Parent to that effect; (b) all Parent Statutory Approvals and Company Statutory Approvals required be deemed to be obtained true and correct in order to permit consummation of all respects unless the Merger under applicable law shall have been obtained, except for any such Parent Statutory Approvals failure or Company Statutory Approvals the unavailability of which would not, individually or in the aggregate (i) have a Company Material Adverse Effect after the Effective Time, or (ii) result in the Company or its subsidiaries failing to meet the standards for licensing, suitability or character under any Racing Laws relating to the conduct of Parent's or the Company's business which (after taking into account the anticipated impact failures of such failure representations and warranties to be so meet such standards on other authorities) would have a Company Material Adverse Effect (after giving effect to the Merger); (c) The Parent shall have obtained the consent or approval to the transactions contemplated by this Agreement of each person from whom such consent or approval is required under any loan or credit agreement, note, mortgage, indenture, lease or other agreement or instrument to which the Parent is a party or by which it is bound except where the failure to obtain such consents or approvals would not, in the reasonable opinion of the Companytrue and correct, individually or in the aggregate, results or would reasonably be expected to result in a Parent Material Adverse Effect. Parent and Sub shall have performed in all material respects all obligations required to be performed by them under this Agreement at or prior to the Closing Date. The Company shall have received a certificate signed on behalf of Parent and Sub by the Chief Executive Officer and Chief Financial Officer of Parent to the foregoing effect. (b) The Company shall have received an opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP in form and substance reasonably satisfactory to the Company, dated the Effective Time, substantially to the effect that, on the basis of facts, representations and assumptions set forth in such opinion that are consistent with the state of facts existing as of the Effective Time, for federal income tax purposes, the Merger will constitute a "reorganization" within the meaning of Section 368(a) of the Code. In rendering such opinion, Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, may receive and rely upon representations contained in certificates of the Company and Parent typical for transactions such as the Merger. (c) There shall not be pending any suit, action or proceeding by any Governmental Authority, nor shall there by any judgment, order, decree, statute, law, ordinance, rule or regulation, entered, enacted, promulgated, enforced or issued by any Government Authority which could reasonably be expected, if adversely determined, to result in criminal or uninsured and unindemnified or unindemnifiable personal liability on the part of one or more directors of the Company, (i) challenging or seeking to restrain or prohibit the consummation of the Merger or (ii) seeking to prohibit or limit the ownership or operation by the Company, Parent or any of their respective material Subsidiaries of any material portion of their respective business or Assets or to dispose of or hold separate any material portion of the business or Assets of the Company, Parent or any of their respective material Subsidiaries, as a result of the Merger or any of the other transactions contemplated by this Agreement. (d) The Parent Required Statutory Approvals shall have been obtained at or prior to the Effective Time pursuant to Final Orders; no such Final Order shall have imposed terms or conditions that would have a Parent Material Adverse Effect, ; and the Parent Required Consents shall have been obtained at or materially affect prior to the consummation of the transactions contemplated hereby; andEffective Time. (de) The Parent shall have obtained and segregated for payment to From the Company sufficient cash funds as required by the terms hereof, to pay in full at date hereof through the Effective Time, or promptly thereafter, to the holders of the Common Stock, the Exchange Funds and no Parent Material Adverse Effect shall have deposited the Exchange Funds with the Disbursing Agent pursuant occurred and there shall exist no fact or circumstance which could reasonably be expected to Section 1.05 hereofhave a Parent Material Adverse Effect.

Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the The obligation of the Company to effect consummate the Merger shall be subject to the fulfillment at or prior to the Effective Time satisfaction of the following additional conditions, unless waived (if permissible) by the Company: (a) Parent and Merger Subsidiary Sub shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Effective Time Time, and except as contemplated or permitted by this Agreement, the representations and warranties of Parent and Merger Subsidiary Sub contained in this Agreement (except to the extent such representations and warranties speak as of an earlier date in which case as of such earlier date) shall be true and correct when made and on and as of the Effective Time as if made at on and as of such date date; (except to the extent that such representations and warranties speak as of an earlier date, and which need be true and correct as of such earlier dateb) except for such failures to perform or to be true and correct that would not have a Parent Material Adverse Effect, and the The Company shall have received a certificate of the chief executive officer or the chief financial officer of Parent to that effect; (b) all Parent Statutory Approvals and Company Statutory Approvals required to be obtained in order to permit consummation of the Merger under applicable law shall have been obtainedcertificate, except for any such Parent Statutory Approvals or Company Statutory Approvals the unavailability of which would not, individually or in the aggregate (i) have a Company Material Adverse Effect after dated the Effective Time, signed by the President or (iiChief Executive Officer or a Senior Vice President of Parent and Sub, certifying that the conditions specified in Section 6.2(a) result in the Company or its subsidiaries failing to meet the standards for licensing, suitability or character under any Racing Laws relating to the conduct of Parent's or the Company's business which (after taking into account the anticipated impact of such failure to so meet such standards on other authorities) would have a Company Material Adverse Effect (after giving effect to the Merger)been fulfilled; (c) The Parent Company shall have obtained received a letter from Deloitte & Touche LLP, Parent's independent auditors, dated a date within two business days before the consent or approval to the transactions contemplated by this Agreement of each person from whom such consent or approval is required under any loan or credit agreement, note, mortgage, indenture, lease or other agreement or instrument to date on which the Parent is a party or by which it is bound except where the failure Registration Statement shall become effective and addressed to obtain such consents or approvals would not, in the reasonable opinion of the Company, individually or in form and substance reasonably satisfactory to the aggregateCompany and customary in scope and substance for letters delivered by independent public accountants in connection with registration statements similar to the Registration Statement (including, have among other things, that the Merger will be treated as a Parent Material Adverse Effect, or materially affect the consummation pooling of the transactions contemplated hereby; andinterests under Accounting Principles Board Opinion No. 16; (d) The Parent Company shall have obtained received an opinion from Gibs▇▇, ▇▇nn & Crut▇▇▇▇ ▇▇▇, the Company's legal counsel, that the Merger will be treated for federal income tax 40 purposes as a reorganization within the meaning of Section 368(a)(1)(A) and segregated for payment Section 368(a)(2)(E) of the Code; and (e) On or prior to the mailing date of the Proxy Statement/Prospectus referred to in Section 5.14, the Company shall have received an updated opinion addressed to it from Mont▇▇▇▇▇▇ ▇▇▇urities to the effect that the Exchange Rate is fair from a financial point of view to the Company sufficient cash funds as required by the terms hereof, to pay in full at the Effective Time, or promptly thereafter, to the holders of the Common Stock, the Exchange Funds and shall have deposited the Exchange Funds with the Disbursing Agent pursuant to Section 1.05 hereofits stockholders.

Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time Closing Date of the following additional conditions: (a) Parent and Merger Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Effective Time Closing Date and the representations and warranties of Parent and Merger Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the Effective Time date made and on and as of the Closing Date as if made at and as of such date (except to the extent that such representations and warranties speak as of an earlier date, and which need be true and correct as of such earlier date) except for such failures to perform or to be true and correct that would not have a Parent Material Adverse Effect, and the Company shall have received a certificate of the chief executive officer Chairman of the Board and Chief Executive Officer, the President or the chief financial officer a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect; (b) all Parent Statutory Approvals the Company shall have received an opinion of Gibs▇▇ ▇▇▇n & ▇rut▇▇▇▇ ▇▇▇, special counsel to the Company, in form and Company Statutory Approvals required substance reasonably satisfactory to be obtained in order to permit consummation the Company, effective as of the Merger under applicable law shall have been obtainedClosing Date and based on representations of the Company and Parent, except for any such Parent Statutory Approvals or Company Statutory Approvals to the unavailability of which would not, individually or in the aggregate effect that (i) have the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a Company Material Adverse Effect after reorganization within the Effective Time, or meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the Company or its subsidiaries failing to meet the standards for licensing, suitability or character under any Racing Laws relating to the conduct form of Parent's or the Company's business which (after taking into account the anticipated impact of such failure to so meet such standards on other authorities) would have a Company Material Adverse Effect (after giving effect to the MergerExhibit 8.2(b); (c) The Parent the Company shall have obtained received an opinion or opinions from Ball▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇ngersoll, special counsel to Parent and Subsidiary, dated the consent or approval Closing Date, reasonably satisfactory to the transactions contemplated by this Agreement of each person from whom such consent or approval is required under any loan or credit agreement, note, mortgage, indenture, lease or other agreement or instrument to which the Parent is a party or by which it is bound except where the failure to obtain such consents or approvals would not, Company substantially in the reasonable opinion form set forth in Exhibit 8.2(c) attached hereto; (d) the Company shall have received "comfort" letters in customary form from Coopers & Lybr▇▇▇ ▇.▇.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company, individually or ) with respect to certain financial statements and other financial information included in the aggregateRegistration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent; (e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect; (f) all governmental waivers, or materially affect consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby; andhereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger; (dg) The Parent the Company shall have obtained received from Jeff▇▇▇▇▇ & ▇ompany, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and segregated for payment Prospectus is first distributed to the Company sufficient cash funds as required stockholders of the Company, to the effect that the consideration to be received by the terms hereofstockholders of the Company in the Merger is fair, to pay in full at the Effective Time, or promptly thereafterfrom a financial point of view, to the holders of the Company Common Stock, and such opinion shall not have been withdrawn; (h) Deloitte & Touche LLP, independent public accountants for the Exchange Funds and Company, shall have deposited delivered a letter, dated the Exchange Funds Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and (i) The parent shall have entered into an employment agreement with the Disbursing Agent pursuant to Section 1.05 hereofWalt▇▇ ▇. ▇▇▇▇▇▇ ("▇r. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit 8.2(i).

Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the The obligation of the Company and the Selling Stockholders to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time Closing Date of the following additional conditions:conditions (unless waived by the Company in accordance with the provisions of Section 8.6 hereof): (a) Parent iOwn and Merger Subsidiary iOwn Sub shall have performed performed, in all material respects their respects, all of its agreements contained in this Agreement herein that are required to be performed by iOwn and iOwn Sub on or prior to the Effective Time and the representations and warranties of Parent and Merger Subsidiary contained in this Agreement shall be true and correct on and as of the Effective Time as if made at and as of such date (except to the extent that such representations and warranties speak as of an earlier date, and which need be true and correct as of such earlier date) except for such failures to perform or to be true and correct that would not have a Parent Material Adverse EffectClosing Date, and the Company shall have received a certificate of the chief executive officer Chairman or President of iOwn and iOwn Sub, dated the chief financial officer of Parent Closing Date, certifying to that such effect;. (b) all Parent Statutory Approvals The representations and Company Statutory Approvals required to warranties of iOwn and iOwn Sub contained in this Agreement and in any document delivered in connection herewith shall be obtained in order to permit consummation true and correct as of the Merger under applicable law Closing in all material respects, and the Company shall have been obtainedreceived a certificate of the President or Chief Financial Officer of iOwn, except for any dated the Closing Date, certifying to such Parent Statutory Approvals or Company Statutory Approvals the unavailability of which would not, individually or in the aggregate (i) have a Company Material Adverse Effect after the Effective Time, or (ii) result in the Company or its subsidiaries failing to meet the standards for licensing, suitability or character under any Racing Laws relating to the conduct of Parent's or the Company's business which (after taking into account the anticipated impact of such failure to so meet such standards on other authorities) would have a Company Material Adverse Effect (after giving effect to the Merger);effect. (c) The Parent Company shall have obtained received from iOwn certified copies of the consent or approval to resolutions of iOwn's and iOwn Sub's Boards of Directors approving and adopting this Agreement, the iOwn Ancillary Documents and the transactions contemplated by this Agreement of each person from whom such consent or approval is required under any loan or credit agreement, note, mortgage, indenture, lease or other agreement or instrument to which the Parent is a party or by which it is bound except where the failure to obtain such consents or approvals would not, in the reasonable opinion of the Company, individually or in the aggregate, have a Parent Material Adverse Effect, or materially affect the consummation of the transactions contemplated hereby; andhereby and thereby. (d) The Parent shall have obtained and segregated for payment to From the Company sufficient cash funds as required by the terms hereof, to pay in full at date of this Agreement through the Effective Time, there shall not have occurred any event that would have or promptly thereafterwould be reasonably likely to have a Material Adverse Effect in the financial condition, business, operations or prospects of iOwn and iOwn Sub, taken as a whole. (e) iOwn shall have executed and delivered the Notes and security documents to the holders each of the Common StockSelling Stockholders. (f) iOwn and iOwn Sub shall have executed and delivered such other documents and taken such other actions as the Company or the Selling Stockholders shall reasonably request. (g) iOwn shall have paid [*] into the Company at the time of the Closing. (h) The Company shall have received the opinion of ▇▇▇▇▇▇▇ Coie LLP in the form attached hereto as Exhibit G. [*] Confidential Treatment Requested -39- (i) Promptly after the Closing, the Exchange Funds Surviving Corporation shall assign the rights to and delegate all obligations under the identified automobile leases in the Disclosure Statement to each of the Selling Stockholders, as directed by such individuals. Each Selling Stockholder agrees to hold harmless and indemnify the Surviving Corporation and iOwn for any and all liabilities arising from such leases at and after the effective date of the assignment and delegation. All parties shall have deposited the Exchange Funds reasonably cooperate with the Disbursing Agent pursuant to Section 1.05 hereofeach other in concluding such transactions.

Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the The obligation of the Company to effect the Merger shall be subject to the fulfillment at satisfaction on or prior to the Effective Time Closing Date of the following additional conditionsconditions unless waived by the Company: (a) Parent and Merger Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Effective Time and the The representations and warranties of Parent and Merger Subsidiary contained Sub set forth in this Agreement shall be true and correct on and in all respects as of the Effective Time as if made at date of this Agreement and as of such date (except to the extent that such representations and warranties speak as of an earlier date, and which need be true and correct ) as of the Closing Date as though made on and as of the Closing Date; provided, however, that for purposes of determining the satisfaction of this condition, no effect shall be given to any exception in such earlier date) except for such failures representations and warranties relating to perform materiality or to be true and correct that would not have a Parent Material Adverse Effect, and the Company provided, further, however, that for purposes of this condition, such representations and warranties shall have received a certificate of the chief executive officer or the chief financial officer of Parent to that effect; (b) all Parent Statutory Approvals and Company Statutory Approvals required be deemed to be obtained true and correct in order to permit consummation of all respects unless the Merger under applicable law shall have been obtained, except for any such Parent Statutory Approvals failure or Company Statutory Approvals the unavailability of which would not, individually or in the aggregate (i) have a Company Material Adverse Effect after the Effective Time, or (ii) result in the Company or its subsidiaries failing to meet the standards for licensing, suitability or character under any Racing Laws relating to the conduct of Parent's or the Company's business which (after taking into account the anticipated impact failures of such failure representations and warranties to be so meet such standards on other authorities) would have a Company Material Adverse Effect (after giving effect to the Merger); (c) The Parent shall have obtained the consent or approval to the transactions contemplated by this Agreement of each person from whom such consent or approval is required under any loan or credit agreement, note, mortgage, indenture, lease or other agreement or instrument to which the Parent is a party or by which it is bound except where the failure to obtain such consents or approvals would not, in the reasonable opinion of the Companytrue and correct, individually or in the aggregate, results or would reasonably be expected to result in a Parent Material Adverse Effect. Parent and Sub shall have performed in all material respects all obligations required to be performed by them under this Agreement at or prior to the Closing Date. The Company shall have received a certificate signed on behalf of Parent and Sub by the Chief Executive Officer and Chief Financial Officer of Parent to the foregoing effect. (b) The Company shall have received an opinion of Skadden, Arps, Slate, Meagher & Flom LLP in form ▇▇▇ ▇▇▇sta▇▇▇ reasonably satisfactory to the Company, dated the Effective Time, substantially to the effect that, on the basis of facts, representations and assumptions set forth in such opinion that are consistent with the state of facts existing as of the Effective Time, for federal income tax purposes, the Merger will constitute a "reorganization" within the meaning of Section 368(a) of the Code. In rendering such opinion, Skadden, Arps, Slate, Meagher & Flom LLP, may rec▇▇▇▇ ▇▇d r▇▇▇ upon representations contained in certificates of the Company and Parent typical for transactions such as the Merger. (c) There shall not be pending any suit, action or proceeding by any Governmental Authority, nor shall there by any judgment, order, decree, statute, law, ordinance, rule or regulation, entered, enacted, promulgated, enforced or issued by any Government Authority which could reasonably be expected, if adversely determined, to result in criminal or uninsured and unindemnified or unindemnifiable personal liability on the part of one or more directors of the Company, (i) challenging or seeking to restrain or prohibit the consummation of the Merger or (ii) seeking to prohibit or limit the ownership or operation by the Company, Parent or any of their respective material Subsidiaries of any material portion of their respective business or Assets or to dispose of or hold separate any material portion of the business or Assets of the Company, Parent or any of their respective material Subsidiaries, as a result of the Merger or any of the other transactions contemplated by this Agreement. (d) The Parent Required Statutory Approvals shall have been obtained at or prior to the Effective Time pursuant to Final Orders; no such Final Order shall have imposed terms or conditions that would have a Parent Material Adverse Effect, ; and the Parent Required Consents shall have been obtained at or materially affect prior to the consummation of the transactions contemplated hereby; andEffective Time. (de) The Parent shall have obtained and segregated for payment to From the Company sufficient cash funds as required by the terms hereof, to pay in full at date hereof through the Effective Time, or promptly thereafter, to the holders of the Common Stock, the Exchange Funds and no Parent Material Adverse Effect shall have deposited the Exchange Funds with the Disbursing Agent pursuant occurred and there shall exist no fact or circumstance which could reasonably be expected to Section 1.05 hereofhave a Parent Material Adverse Effect.

Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect consummate the Merger shall be subject to the fulfillment at or prior to the Merger Effective Time of the following additional conditions: (a) Parent (i) the representations and warranties of the Pyramid Entities set forth in Sections 6.02 (Capitalization), and 5.03(a) – (c) (Authority; Non-Contravention) shall be true and correct in all respects as of the date hereof and as of the Merger Subsidiary Effective Time as if made on and as of the Merger Effective Time (or, if given as of a specific date, at and as of such date) and (ii) the other representations and warranties of the Pyramid Entities contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Pyramid Material Adverse Effect, shall be true and correct in all respects as of the date hereof and as of the Merger Effective Time as if made on and as of the Merger Effective Time (or, if given as of a specific date, at and as of such date), except in the case of this clause (ii) (x) for changes expressly permitted by this Agreement or (y) where the failure to be true and correct would not reasonably be expected to have a Pyramid Material Adverse Effect. The Company shall have received a certificate of the chief executive officer or the chief financial officer of Pyramid to that effect; (b) each Pyramid Entity shall have performed in all material respects their agreements contained in this Agreement all obligations required to be performed by it under this Agreement on or prior to the Merger Effective Time and Time, including terminating its 5304-Simple Plan if requested by the representations and warranties of Parent and Merger Subsidiary contained in this Agreement shall be true and correct on and as of the Effective Time as if made at and as of such date (except to the extent that such representations and warranties speak as of an earlier date, and which need be true and correct as of such earlier date) except for such failures to perform or to be true and correct that would not have a Parent Material Adverse EffectCompany, and the Company shall have received a certificate of the chief executive officer or the chief financial officer of Parent Pyramid to that effect; (bc) at Closing, all Parent Statutory Approvals of the directors and officers of Pyramid shall have resigned in writing from their positions as directors and officers of Pyramid effective upon the election of the persons designated in Exhibit E attached hereto (the “New Pyramid Board”), and the appointment of the persons designated in Exhibit E attached hereto, each to hold office in accordance with the articles of incorporation and the bylaws of Pyramid until their respective successors are duly elected or appointed and qualified; provided that the New Pyramid Board shall have a sufficient number of “independent directors” to satisfy applicable SEC and NYSE MKT rules. The directors of Pyramid shall take such action as may be necessary or desirable regarding such election and appointment of the foregoing individuals; (d) the environmental report prepared for the Company Statutory Approvals required with respect to any material property of Pyramid shall be reasonably acceptable to the Company and the Company’s land due diligence of Pyramid properties shall be reasonably acceptable to the Company, provided that such report and such due diligence, respectively, shall be deemed to be obtained acceptable to the Company if the Company does not notify Pyramid in order writing to permit consummation the contrary on or before February 20, 2014; (e) the Board of Directors of the Merger under applicable law Company shall have been obtaineda good faith belief that the date on which the S-4 is filed and on the Closing Date, except for any such Parent Statutory Approvals or Company Statutory Approvals the unavailability of which would not, individually or in the aggregate that (i) have the Merger will qualify as a Company Material Adverse Effect after reorganization within the Effective Time, or meaning of Section 368(a) of the Code and (ii) result in the Company or its subsidiaries failing to meet the standards for licensing, suitability or character under any Racing Laws relating and Pyramid will each be a “party to the conduct reorganization” within the meaning of Parent's or the Company's business which (after taking into account the anticipated impact of such failure to so meet such standards on other authorities) would have a Company Material Adverse Effect (after giving effect to the Merger); (c) The Parent shall have obtained the consent or approval to the transactions contemplated by this Agreement of each person from whom such consent or approval is required under any loan or credit agreement, note, mortgage, indenture, lease or other agreement or instrument to which the Parent is a party or by which it is bound except where the failure to obtain such consents or approvals would not, in the reasonable opinion Section 368 of the Company, individually or in the aggregate, have a Parent Material Adverse Effect, or materially affect the consummation of the transactions contemplated herebyCode; and (df) The Parent the Company shall have been furnished with evidence satisfactory to it that Pyramid has obtained the consents, approvals and segregated for payment to the Company sufficient cash funds as required by the terms hereof, to pay waivers set forth in full at the Effective Time, or promptly thereafter, to the holders Section 9.02(f) of the Common Stock, the Exchange Funds and shall have deposited the Exchange Funds with the Disbursing Agent pursuant to Section 1.05 hereofPyramid Disclosure Schedule.

Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the The obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time Date of the following additional conditions, unless waived by the Company: (a) Parent and Merger Subsidiary shall have performed in all material respects their its agreements contained in this Merger Agreement required to be performed on or prior to the Effective Time Date, and except as contemplated or permitted by this Merger Agreement, the representations and warranties of Parent contained in this Merger Agreement that are subject to a Parent Material Adverse Effect qualifier shall be true and correct when made and on and as of the Effective Date as if made on and as of such date, and the representations and warranties of Parent and Merger Subsidiary contained in this Merger Agreement that are not subject to such a qualifier shall be true and correct on and as of the Effective Time as if made at and as of such date (except to where the extent that such representations and warranties speak as of an earlier date, and which need be true and correct as of such earlier date) except for such failures to perform or failure to be true and correct that correct, alone or taken together with other failures to be true and correct, would not have a Parent Material Adverse Effect) when made and on and as of the Effective Date as if made on and as of such date. (b) The Company shall have received an opinion from Gravel and Shea, Burlington, ▇▇▇mont, to the effect that the Merger will constitute a reorganization within the meaning of Section 368(a) of the Code, which opinion may be based upon reasonable representations of fact provided by officers of Parent and the Company. (c) The Company shall have received an opinion from Ballard Spahr And▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇nnsylvania, substantially to the effect set forth in Exhibit 8.2(c) hereto. (d) The Company shall have received a certificate of certificate, dated the chief executive officer Effective Date, signed by the President or the chief financial officer Chief Executive Officer of Parent to and Merger Sub, certifying that effect;the conditions specified in Section 8.2(a) have been fulfilled. (be) all Parent Statutory Approvals and Company Statutory Approvals required From the date hereof to be obtained in order to permit consummation of the Merger under applicable law shall have been obtained, except for any such Parent Statutory Approvals or Company Statutory Approvals the unavailability of which would not, individually or in the aggregate (i) have a Company Material Adverse Effect after the Effective TimeDate, there shall not have occurred any material adverse change (other than one resulting from or (ii) result in the Company or its subsidiaries failing to meet the standards for licensing, suitability or character under any Racing Laws relating to the conduct of Parent's this Merger Agreement or the Company's business which (after taking into account the anticipated impact of such failure to so meet such standards on other authorities) would have a Company Material Adverse Effect (after giving effect to the Merger); (c) The Parent shall have obtained the consent or approval to the transactions contemplated by this Agreement of each person from whom such consent or approval is required under any loan or credit agreement, note, mortgage, indenture, lease or other agreement or instrument to which the Parent is a party or by which it is bound except where the failure to obtain such consents or approvals would not, in the reasonable opinion of the Company, individually or in the aggregate, have a Parent Material Adverse Effect, or materially affect the consummation of the transactions contemplated hereby; and ) in the business, properties, assets, conditions (d) The financial or otherwise), executive management, liabilities or operations of Parent shall have obtained and segregated for payment to the Company sufficient cash funds its subsidiaries, taken as required by the terms hereof, to pay in full at the Effective Time, or promptly thereafter, to the holders of the Common Stock, the Exchange Funds and shall have deposited the Exchange Funds with the Disbursing Agent pursuant to Section 1.05 hereofa whole.

Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect consummate the Merger shall be subject to the fulfillment at or prior to the Merger Effective Time of the following additional conditions: (a) Parent (i) the representations and warranties of the Pyramid Entities set forth in Sections 6.02 (Capitalization), and 5.03(a) – (c) (Authority; Non-Contravention) shall be true and correct in all respects as of the date hereof and as of the Merger Subsidiary Effective Time as if made on and as of the Merger Effective Time (or, if given as of a specific date, at and as of such date) and (ii) the other representations and warranties of the Pyramid Entities contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Pyramid Material Adverse Effect, shall be true and correct in all respects as of the date hereof and as of the Merger Effective Time as if made on and as of the Merger Effective Time (or, if given as of a specific date, at and as of such date), except in the case of this clause (ii) (x) for changes expressly permitted by this Agreement or (y) where the failure to be true and correct would not reasonably be expected to have a Pyramid Material Adverse Effect. The Company shall have received a certificate of the chief executive officer or the chief financial officer of Pyramid to that effect; (b) each Pyramid Entity shall have performed in all material respects their agreements contained in this Agreement all obligations required to be performed by it under this Agreement on or prior to the Merger Effective Time and Time, including terminating its 5304-Simple Plan if requested by the representations and warranties of Parent and Merger Subsidiary contained in this Agreement shall be true and correct on and as of the Effective Time as if made at and as of such date (except to the extent that such representations and warranties speak as of an earlier date, and which need be true and correct as of such earlier date) except for such failures to perform or to be true and correct that would not have a Parent Material Adverse EffectCompany, and the Company shall have received a certificate of the chief executive officer or the chief financial officer of Parent Pyramid to that effect; (bc) at Closing, all Parent Statutory Approvals of the directors and officers of Pyramid Delaware shall have resigned in writing from their positions as directors and officers of Pyramid Delaware effective upon the election of the persons designated in Exhibit E attached hereto (the “New Pyramid Board”), and the appointment of the persons designated in Exhibit E attached hereto, each to hold office in accordance with the certificate of incorporation and the bylaws of Pyramid Delaware until their respective successors are duly elected or appointed and qualified; provided that the New Pyramid Board shall have a sufficient number of “independent directors” to satisfy applicable SEC and NYSE MKT rules. The directors of Pyramid Delaware shall take such action as may be necessary or desirable regarding such election and appointment of the foregoing individuals; (d) the environmental report prepared for the Company Statutory Approvals required with respect to any material property of Pyramid shall be reasonably acceptable to the Company and the Company’s land due diligence of Pyramid properties shall be reasonably acceptable to the Company, provided that such report and such due diligence, respectively, shall be deemed to be obtained acceptable to the Company if the Company does not notify Pyramid in order writing to permit consummation the contrary on or before February 20, 2014; (e) the Board of Directors of the Merger under applicable law Company shall have been obtaineda good faith belief that the date on which the S-4 is filed and on the Closing Date, except for any such Parent Statutory Approvals or Company Statutory Approvals the unavailability of which would not, individually or in the aggregate that (i) have the Merger will qualify as a Company Material Adverse Effect after reorganization within the Effective Time, or meaning of Section 368(a) of the Code and (ii) result in the Company or its subsidiaries failing to meet the standards for licensing, suitability or character under any Racing Laws relating and Pyramid Delaware will each be a “party to the conduct reorganization” within the meaning of Parent's or the Company's business which (after taking into account the anticipated impact of such failure to so meet such standards on other authorities) would have a Company Material Adverse Effect (after giving effect to the Merger); (c) The Parent shall have obtained the consent or approval to the transactions contemplated by this Agreement of each person from whom such consent or approval is required under any loan or credit agreement, note, mortgage, indenture, lease or other agreement or instrument to which the Parent is a party or by which it is bound except where the failure to obtain such consents or approvals would not, in the reasonable opinion Section 368 of the Company, individually or in the aggregate, have a Parent Material Adverse Effect, or materially affect the consummation of the transactions contemplated herebyCode; and (df) The Parent the Company shall have been furnished with evidence satisfactory to it that Pyramid has obtained the consents, approvals and segregated for payment to the Company sufficient cash funds as required by the terms hereof, to pay waivers set forth in full at the Effective Time, or promptly thereafter, to the holders Section 9.02(f) of the Common Stock, the Exchange Funds and shall have deposited the Exchange Funds with the Disbursing Agent pursuant to Section 1.05 hereofPyramid Disclosure Schedule.

Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the The obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time Date of the additional following additional conditions, un- less waived by the Company: (a) Parent and Merger Subsidiary Sub shall have performed in all material mate- rial respects their agreements contained in this Agreement Merger Agree- ment required to be performed on or prior to the Effective Time Date and the representations and warranties of Parent and Merger Subsidiary contained Sub con- tained in this Merger Agreement shall be true in all material respects when made and correct on and as of the Effective Time Date as if made at on and as of such date date, except (except to the extent that such i) as contemplated or per- mitted by this Merger Agreement, (ii) for representations and warranties speak which are by their express provisions made as of an earlier datea specific date or dates, which were or will be true in all mate- rial respects at such time or times as stated therein, and which (iii) that if the Effective Date occurs after the nine month anniversary of the date hereof pursuant to the second proviso of Section 9.1(b), then the representations and warranties need only be true and correct as of such earlier date) except for such failures to perform or to be true and correct that would not have a Parent Material Adverse Effectthe nine month anniversary of the date of this Merger Agreement, and the Company shall have received a certificate of the chief executive officer President or the chief financial officer Chief Executive Officer or a Vice President of Parent to that effect;. (b) all The Company shall have received a favorable opinion of Baer Marks & Upham LLP, based upon certain factual re▇▇▇▇entations ▇▇ ▇he Company, Parent Statutory Approvals and Company Statutory Approvals required Sub reasonably re- quested by such counsel, dated the Effective Date, to be obtained in order to permit consummation the ef- fect that the Merger will constitute a "reorganization" for federal income tax purposes within the meaning of Section 368(a) of the Merger under applicable law shall have been obtained, except for any such Parent Statutory Approvals or Company Statutory Approvals the unavailability of which would not, individually or in the aggregate (i) have a Company Material Adverse Effect after the Effective Time, or (ii) result in the Company or its subsidiaries failing to meet the standards for licensing, suitability or character under any Racing Laws relating to the conduct of Parent's or the Company's business which (after taking into account the anticipated impact of such failure to so meet such standards on other authorities) would have a Company Material Adverse Effect (after giving effect to the Merger);Code. (c) The Parent shall have obtained the consent or approval to the transactions contemplated by this Agreement of each person from whom such consent or approval is required under any loan or credit agreement, note, mortgage, indenture, lease or other agreement or instrument to which the Parent is a party or by which it is bound except where the failure to obtain such consents or approvals would not, in the reasonable opinion of the Company, individually or in the aggregate, have a Parent Material Adverse Effect, or materially affect the consummation of the Merger and the other transactions contemplated hereby; and (d) The hereby shall not give rise to any Parent shall have obtained and segregated Right becoming exercisable for payment to the Company sufficient cash funds as required by the terms hereof, to pay in full at the Effective Time, any security or promptly thereafter, to the holders asset of the Common Stock, the Exchange Funds and shall have deposited the Exchange Funds with the Disbursing Agent pursuant to Section 1.05 hereofany person.

Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the The obligation of the Company to effect the Merger shall be subject to the fulfillment satisfaction or waiver by the Company at or prior to the Effective Time of the following additional conditions: (a) Parent each of Sponsor and Merger Subsidiary Sub shall have performed in all material respects their agreements contained in its obligations under this Agreement required to be performed on by it at or prior to the Effective Time and Time; the representations and warranties of Parent Sponsor and Merger Subsidiary Sub contained in this Agreement shall be true and correct on in all respects (but without regard to any qualifications as to materiality or Sponsor Material Adverse Effect contained in any specific representation or warranty) as of the date of this Agreement and as of the Effective Time with the same effect as if though made at as of the Effective Time except (i) for changes specifically permitted by the terms of this Agreement, (ii) that the accuracy of representations and warranties that by their terms speak as of the date of this Agreement or some other date will be determined as of such date date, and (except to iii) where any such failure of the extent that such representations and warranties speak as of an earlier date, and which need be true and correct as of such earlier date) except for such failures to perform or in the aggregate to be true and correct that in all respects would not have a Parent Sponsor Material Adverse Effect, ; and the Company shall have received a certificate of the chief executive officer Chief Executive Officer or the chief financial officer Chief Financial Officer of Parent Sponsor as to that effect;the satisfaction of this condition; and (b) all Parent Statutory Approvals and the Company Statutory Approvals required to be obtained in order to permit consummation of the Merger under applicable law shall have been obtainedreceived an opinion from Debevoise & Plimpton, except for any special counsel to the Company, dated the Effective Time, t▇ ▇▇▇ ▇▇fect that, on the basis of certain facts, representations and assumptions set forth in such Parent Statutory Approvals or Company Statutory Approvals opinion which are consistent with the unavailability of which would notstated facts existing at the Effective Time, individually or in the aggregate (A) either (i) have the Merger will be treated for federal income tax purposes as a Company Material Adverse Effect after reorganization within the Effective Timemeaning of Section 368(a) of the Code, or (ii) result in if, pursuant to Section 2.1(d), a different structure is used to consummate the acquisition of the Company or its subsidiaries failing to meet by the standards for licensingSponsor, suitability or character under any Racing Laws relating to the conduct of Parent's or the Company's business which (after taking into account the anticipated impact of such failure to so meet such standards on other authorities) would have a Company Material Adverse Effect (after giving effect to the Merger); (c) The Parent shall have obtained the consent or approval to the transactions contemplated by this Agreement of each person from whom such consent or approval is required under any loan or credit agreement, note, mortgage, indenture, lease or other agreement or instrument to which the Parent is a party or by which it is bound except where the failure to obtain such consents or approvals would not, in the reasonable opinion Eligible Policyholders receiving solely common stock of the Company, individually Sponsor (or in any corporation specifically formed for the aggregate, have purpose of consummating the acquisition) will not recognize gain or loss for federal income tax purposes as a Parent Material Adverse Effect, or materially affect result of the consummation of the transactions contemplated hereby; and acquisition and (dB) The Parent shall have obtained and segregated for payment the crediting of Policy Credits pursuant to the Company sufficient cash funds as required Conversion and the Merger will not, with respect to any Tax Advantaged Policy issued by the terms hereof, to pay in full at Company before the Effective Time, constitute a distribution from, or promptly thereaftera contribution to, such policy for federal income tax purposes that would adversely affect the tax-favored status accorded such policy under the Code or result in penalties or any other material adverse federal income tax consequence to the holders of such policy under the Common Stock, Code; provided that the Exchange Funds condition contained in this Section 8.2(b)(B) may only be waived by both the Company and shall have deposited the Exchange Funds with the Disbursing Agent pursuant to Section 1.05 hereofSponsor.

Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the The obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time Closing Date of the following additional conditions: (a) (i) Parent and Merger Subsidiary Sub shall have performed in all material respects their agreements all obligations contained in this Agreement required to be performed by them on or prior to the Effective Time and Closing Date, (ii) the representations and warranties of Parent and Merger Subsidiary Sub contained in this Agreement shall be true and correct on and (without regard to any materiality qualifiers therein) as of the Effective Time as if made at and as of such date Closing Date (except to the extent for changes contemplated by this Agreement and except that such those representations and warranties speak which address matters only as of an earlier date, and which need be a particular date shall have been true and correct as of such earlier date) ), except for such failures to perform or where the failure to be true and correct that would not have a Parent Material Adverse Effect, and the Company shall have received a certificate of the chief executive officer or the chief financial officer of Parent to that effect; (b) all Parent Statutory Approvals and Company Statutory Approvals required to be obtained in order to permit consummation of the Merger under applicable law shall have been obtained, except for any such Parent Statutory Approvals or Company Statutory Approvals the unavailability of which would not, individually or in the aggregate (i) have a Company Material Adverse Effect after the Effective Time, or (ii) result in the Company or its subsidiaries failing to meet the standards for licensing, suitability or character under any Racing Laws relating to the conduct of Parent's or the Company's business which (after taking into account the anticipated impact of such failure to so meet such standards on other authorities) would have a Company Material Adverse Effect (after giving effect to the Merger); (c) The Parent shall have obtained the consent or approval to the transactions contemplated by this Agreement of each person from whom such consent or approval is required under any loan or credit agreement, note, mortgage, indenture, lease or other agreement or instrument to which the Parent is a party or by which it is bound except where the failure to obtain such consents or approvals would not, in the reasonable opinion of the Company, individually or in the aggregate, have a Parent Material Adverse Effect, or materially affect and (iii) the consummation Company shall have received certificates of the transactions contemplated hereby; andPresident or a Vice President of Parent and Merger Sub dated the Closing Date, certifying to such effect with respect to Parent and Merger Sub, respectively. (db) The Parent Company shall have obtained and segregated for payment received an opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, special tax counsel to the Company sufficient cash funds Company, dated as required by of the terms hereof, to pay in full at the Effective Time, or promptly thereafterClosing Date, to the holders effect that the Merger will qualify as a reorganization within the meaning of Section 368(a) of the Code and that no gain or loss will be recognized by a stockholder of the Company on the conversion of Company Common StockStock into Parent ADSs and CVRs pursuant to the Merger, except with respect to the Exchange Funds CVRs and shall have deposited cash received in lieu of a fractional share, provided that (i) the Exchange Funds Company complies with the Disbursing Agent pursuant reporting requirements contained in Treasury Regulation Section 1.367(a)-3(c)(6) and (ii) the Company stockholder owns (including beneficial, indirect and constructive ownership) less than five percent of the total voting power and total value of Parent's outstanding stock immediately after the Merger. The issuance of such opinion shall be conditioned upon the receipt by such special tax counsel of customary representation letters from each of Parent, Merger Sub, and the Company, in each case in form and substance satisfactory to Section 1.05 hereof.such special tax

Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the The obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time Closing Date of the following additional conditions: (a) Parent and Merger Subsidiary shall have performed in all material respects their its agreements contained in this Agreement required to be performed on or prior to the Effective Time and Closing Date, the representations and warranties of Parent and Merger Subsidiary Sub contained in this Agreement and in any document delivered in connection herewith shall be true and correct on and as of the Effective Time as if made at and as of such date (except to the extent that such representations and warranties speak as of an earlier date, and which need be true and correct as of such earlier date) except for such failures to perform or to be true and correct that would not have a Parent Material Adverse Effectthe Closing Date, and the Company shall have received a certificate of the chief executive officer President or a Vice President of Parent, dated the chief financial officer of Parent Closing Date, certifying to such effect; provided, however, that effect; (bnotwithstanding anything herein to the contrary, this Section 8.2(a) all Parent Statutory Approvals and Company Statutory Approvals required shall be deemed to be obtained in order to permit consummation of the Merger under applicable law shall have been obtainedsatisfied even if such performance has not occurred or such representations or warranties are not true and correct, except for any such Parent Statutory Approvals or Company Statutory Approvals the unavailability of which would not, individually or in the aggregate (i) have a Company Material Adverse Effect after the Effective Time, or (ii) result in the Company or its subsidiaries failing to meet the standards for licensing, suitability or character under any Racing Laws relating to the conduct of Parent's or the Company's business which (after taking into account the anticipated impact of such failure to so meet such standards on other authorities) would have a Company Material Adverse Effect (after giving effect to the Merger); (c) The Parent shall have obtained the consent or approval to the transactions contemplated by this Agreement of each person from whom such consent or approval is required under any loan or credit agreement, note, mortgage, indenture, lease or other agreement or instrument to which the Parent is a party or by which it is bound except where unless the failure to obtain such consents perform or approvals would not, in the reasonable opinion failure of any of the Company, individually representations or in the aggregate, warranties to be so true and correct would have or would be reasonably likely to have a Parent Material Adverse Effect. (b) There shall have been delivered to the Company certificates, dated within five days of the Closing Date, of the Secretary of State of the State of Delaware and the State of Idaho, with respect to the incorporation, subsistence, and good legal standing of Parent and Merger Sub, respectively. (c) All consents and approvals of any third parties required in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby shall have been obtained and delivered to the Company. (d) The average last sale price per share of Parent Common Stock for the ten (10) trading days prior to the Closing Date shall not be lower than $3.40; provided, however, that if this closing condition shall not have been satisfied or materially affect waived prior to the Closing Date, the Company shall, if requested by Parent, negotiate in good faith with Parent to make such adjustments to the terms and conditions of this Agreement as would enable the Company to proceed with the Merger on such adjusted terms. (e) There shall have been delivered to the Company certificates, dated the Closing Date, of the President or Vice President and Secretary, respectively, of Parent and Merger Sub (i) to the effect that the Certificate of Incorporation of Parent and Articles of Incorporation of Merger Sub have not been amended since the date of the Certificates referred to in Section 8.2(b) above, (ii) attaching a true and complete copy of the Bylaws of Parent and Merger Sub as in effect 49 on the Closing Date, and (iii) attaching a true and complete copy of the resolutions of the Board of Directors of Parent and Merger Sub approving the execution and delivery of this Agreement and authorizing the consummation of the transactions contemplated hereby; and. (df) The There shall have been delivered to the Company certificates, dated the Closing Date, with respect to the incumbency and signatures of all officers of Parent and Merger Sub signing this Agreement and any other certificate, agreement, or instrument delivered on behalf of Parent in connection with this Agreement. (g) Parent shall have obtained and segregated for payment fully implemented a mutually agreed upon marketing plan in the first quarter of 1999, in accordance with the provisions of Exhibit E attached hereto, including, without limitation, fully funding the marketing spending levels set forth therein. (h) Parent shall have delivered to the Company sufficient cash funds an opinion of its counsel in the form attached hereto as required by the terms hereof, to pay in full at the Effective Time, or promptly thereafter, to the holders of the Common Stock, the Exchange Funds and shall have deposited the Exchange Funds with the Disbursing Agent pursuant to Section 1.05 hereof.Exhibit F.

Conditions to Obligation of the Company to Effect the Merger. Unless waived by In addition to the Companyconditions set forth in Section 8,1 above, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time Closing Date of the following additional conditions: (a) Parent and Merger Subsidiary shall have performed in all material respects their its agreements contained in this Agreement required to be performed on or prior to the Effective Time and Closing Date, the representations and warranties of Parent and Merger Subsidiary Sub contained in this Agreement and in any document delivered in connection herewith shall be true and correct on and as of the Effective Time as if made at and as of such date (except to the extent that such representations and warranties speak as of an earlier date, and which need be true and correct as of such earlier date) except for such failures to perform or to be true and correct that would not have a Parent Material Adverse Effectthe Closing Date, and the Company shall have received a certificate of the chief executive officer President or a Vice President of Parent, dated the chief financial officer of Parent Closing Date, certifying to such effect; provided, however, that effect; (bnotwithstanding anything herein to the contrary, this Section 8.2(a) all Parent Statutory Approvals and Company Statutory Approvals required shall be deemed to be obtained in order to permit consummation of the Merger under applicable law shall have been obtainedsatisfied even if such performance has not occurred or such representations or warranties are not true and correct, except for any such Parent Statutory Approvals or Company Statutory Approvals the unavailability of which would not, individually or in the aggregate (i) have a Company Material Adverse Effect after the Effective Time, or (ii) result in the Company or its subsidiaries failing to meet the standards for licensing, suitability or character under any Racing Laws relating to the conduct of Parent's or the Company's business which (after taking into account the anticipated impact of such failure to so meet such standards on other authorities) would have a Company Material Adverse Effect (after giving effect to the Merger); (c) The Parent shall have obtained the consent or approval to the transactions contemplated by this Agreement of each person from whom such consent or approval is required under any loan or credit agreement, note, mortgage, indenture, lease or other agreement or instrument to which the Parent is a party or by which it is bound except where unless the failure to obtain such consents perform or approvals would not, in the reasonable opinion failure of any of the Company, individually representations or in the aggregate, warranties to be so true and correct would have or would be reasonably likely to have a Parent Material Adverse Effect. (b) There shall have been delivered to the Company certificates, dated within five days of the Closing Date, of the Secretary of State of the State of Delaware and the State of Georgia, with respect to the incorporation, subsistence, and good legal standing of Parent and Merger Sub, respectively. (c) All consents and approvals of any third parties required in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby shall have been obtained and delivered to the Company. (d) There shall have been delivered to the Company certificates, dated the Closing Date, of the President or materially affect Vice President and Secretary, respectively, of Parent and Merger Sub (i) to the effect that the Certificate of Incorporation of Parent and Articles of Incorporation of Merger Sub have not been amended since the date of the Certificates referred to in Section 8.2(b) above, (ii) attaching a true and complete copy of the Bylaws of Parent and Merger Sub as in effect on the Closing Date, and (iii) attaching a true and complete copy of the resolutions of the Board of Directors of Parent and Merger Sub approving the execution and delivery of this Agreement and authorizing the consummation of the transactions contemplated hereby; and. (de) The There shall have been delivered to the Company certificates, dated the Closing Date, with respect to the incumbency and signatures of all officers of Parent and Merger Sub signing this Agreement and any other certificate, agreement, or instrument delivered on behalf of Parent in connection with this Agreement. (f) Parent shall have obtained executed and segregated for payment delivered to the Company sufficient cash funds the Stockholders Agreement (as required by the terms hereof, to pay defined in full at the Effective Time, or promptly thereafter, Section 9.4). (g) Parent shall have delivered to the holders Company an opinion of its counsel in the Common Stock, the Exchange Funds and form attached hereto as Exhibit C. (h) Parent shall have deposited the Exchange Funds with the Disbursing Agent pursuant executed and delivered to Section 1.05 hereofeach of Bria▇ ▇. ▇▇▇▇▇ ▇▇▇ Perr▇ ▇▇▇▇▇ ▇▇▇ employment agreements set forth as Exhibit A-1 and A-2, respectively.

Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the The obligation of the Company to effect the Merger shall will be subject to the fulfillment at or prior to the Effective Time of the additional following additional conditions: (a) Parent AccuMed and Merger Subsidiary shall Acquisition Sub will have performed in all material respects their agreements contained in this Agreement required to be performed on by them at or prior to the Effective Time and the representations and warranties of Parent AccuMed and Merger Subsidiary contained Acquisition Sub set forth in this Agreement shall be if qualified by materiality are true in all respects and correct on if not so qualified are true in all material respects when made and at and as of the Effective Time as if made at and as of such date (except to the extent that such representations and warranties speak as of an earlier date, and which need be true and correct as of such earlier date) except for such failures to perform or to be true and correct that would not have a Parent Material Adverse Effect, time and the Company shall will have received a certificate of AccuMed and Acquisition Sub executed on behalf of each such corporation by the chief executive officer or the chief financial officer Chief Executive Officer of Parent such corporations to that effect;. (b) all Parent Statutory Approvals The Company will have received the opinion of Joyc▇ ▇. ▇▇▇▇▇▇▇, ▇▇q., counsel to AccuMed and Company Statutory Approvals required to be obtained in order to permit consummation of the Merger under applicable law shall have been obtainedAcquisition Sub, except for any such Parent Statutory Approvals or Company Statutory Approvals the unavailability of which would not, individually or in the aggregate (i) have a Company Material Adverse Effect after the Effective Time, or (ii) result in the Company or its subsidiaries failing to meet the standards for licensing, suitability or character under any Racing Laws relating substantially to the conduct of Parent's or the Company's business which (after taking into account the anticipated impact of such failure to so meet such standards on other authorities) would have a Company Material Adverse Effect (after giving effect to the Merger);set forth in Exhibit B. (c) The Parent shall There will have obtained the consent or approval to the transactions contemplated by this Agreement of each person from whom such consent or approval is required under any loan or credit agreement, note, mortgage, indenture, lease or other agreement or instrument to which the Parent is a party or by which it is bound except where the failure to obtain such consents or approvals would not, been no material adverse change in the reasonable opinion financial condition, results of operations, assets, liabilities or business of AccuMed since the Company, individually or in the aggregate, have a Parent Material Adverse Effect, or materially affect the consummation date of the transactions contemplated hereby; andthis Agreement. (d) The Parent shall have obtained AccuMed will execute and segregated for payment deliver indemnification agreements, satisfactory to the Company sufficient cash funds and AccuMed's newly elected Board of Directors, pursuant to which AccuMed will indemnify, defend and hold harmless each member of AccuMed's Board of Directors as required by the terms hereof, to pay in full at of the Effective Time. (e) AccuMed will issue a proxy statement for use in connection with a special meeting of its stockholders to vote upon the Merger, or promptly thereafterand include proposals for (i) amending AccuMed's Certificate of Incorporation to change AccuMed's corporate name to Microsulis Medical Corporation, (ii) electing seven (7) directors to serve new terms beginning as of the Effective Time and continuing until the next annual meeting of stockholders, and (iii) approving a new AccuMed stock option plan, which was approved by the Company prior to the holders submission of such plan to AccuMed's shareholders. Of the Common Stockseven (7) nominees for directors, four shall be qualified nominees submitted by Gill▇▇▇ ▇▇▇▇▇▇ ▇▇ AccuMed's Board of Directors in writing within a reasonable amount of time prior to the Exchange Funds and shall anticipated filing of such proxy statement. (f) There will have deposited been no material adverse change in the Exchange Funds with financial condition, results of operations, assets, liabilities or business of AccuMed since the Disbursing Agent pursuant to Section 1.05 hereofdate of this Agreement.

Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions: (a) Parent and Merger Subsidiary Sub shall have performed in all material respects (or in all respects in the case of any agreement containing any materiality qualification) their agreements contained in this Agreement required to be performed on or prior to the Effective Time and Closing Date; (b) the representations and warranties of Parent and Merger Subsidiary Sub contained in this Agreement shall be true and correct in all material respects (or in all respects in the case of any representation or warranty containing any materiality qualification) on and as of the Effective Time date made and on and as of the Closing Date as if made at and as of such date; (c) since the date (except to the extent of this agreement, there shall have been no changes that such representations and warranties speak as of an earlier dateconstitute, and no event or events shall have occurred which need be true and correct as of such earlier date) except for such failures to perform have resulted in or to be true and correct that would not have constitute, a Parent Material Adverse Effect; (d) all governmental waivers, consents, orders, permit transfers (including without limitation Environmental Permits) and approvals legally required for the consummation of the Merger and transactions contemplated hereby or to permit Parent to carry on the business of the Company after Closing in accordance with past customs and practice shall have been obtained and be in effect at the Closing Date, and no Governmental Authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value of the Company to Parent; (e) all waivers, consents and approvals from third parties necessary for the transfer of any material contracts, financial assurances and any other rights and benefits in connection with the Merger, or necessary for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date; (f) the boards of directors of Parent and Merger Sub shall have authorized the execution, delivery and performance of the Agreement and all related documents and agreements contemplated herein; (g) Parent shall execute and deliver to each of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇ a Non-Competition Agreement, in the form attached hereto as Exhibit H (collectively, the "Noncompetition Agreements"); (h) Merger Sub shall execute the Replacement Promissory Note; (i) Parent shall execute and deliver to APS a Guaranty of performance under the Replacement Promissory Note, in the form attached hereto as Exhibit I; (j) Parent and Merger Sub shall deliver executed Certificate and Articles of Merger necessary to effect the Merger referred to in Section 1.1; (k) Parent shall have delivered to the Company written documentation, satisfactory to the Company, that evidences the waiver by Parent's preferred stock holders of any rights related to or arising from Parent's execution of this Agreement and the consummation of the transactions contemplated herein, if such right would not otherwise have arisen or existed, including without limitation, any mandatory redemption rights, rights to receive additional shares of capital stock of Parent upon conversion of preferred stock or any other similar rights; (l) the Company shall have completed its due diligence review regarding the Parent and its business, operations, assets, liabilities, taxes, insurance, contracts, prospects and environmental and other matters as the Company deems relevant and the Company shall be satisfied, in its sole discretion, with the results of such review; (m) The Company shall have received a Co-Sale Rights Agreement, in the form attached hereto as Exhibit J, executed by each holder of Series A Preferred Stock of Parent; (n) the Company shall have received a certificate of the chief executive officer or the chief financial officer executed on behalf of Parent by the Chief Executive Officer or a Vice President of Parent and on behalf of Merger Sub by the President or a Vice President of Merger Sub with respect to that effect(a) through (g) above; (bo) all Parent Statutory Approvals and the Company Statutory Approvals required to be shall have obtained in order to permit consummation approval of the Merger under applicable law shall have been obtained, except for any such Parent Statutory Approvals or Company Statutory Approvals the unavailability by each of which would not, individually or its shareholders in the aggregate (i) have a Company Material Adverse Effect after the Effective Time, or (ii) result in the Company or its subsidiaries failing to meet the standards for licensing, suitability or character under any Racing Laws relating to the conduct of Parent's or the Company's business which (after taking into account the anticipated impact of such failure to so meet such standards on other authorities) would have a Company Material Adverse Effect (after giving effect to the Merger); (c) The Parent shall have obtained the consent or approval to the transactions contemplated by this Agreement of each person from whom such consent or approval is form required under any loan or credit agreement, note, mortgage, indenture, lease or other agreement or instrument to which the Parent is a party or by which it is bound except where the failure to obtain such consents or approvals would not, in the reasonable opinion of the Company, individually or in the aggregate, have a Parent Material Adverse Effect, or materially affect the consummation of the transactions contemplated herebyTexas Business Corporation Act; and (dp) The Parent the Company shall have obtained and segregated for payment to received an Investors' Certificate from each Shareholder, in the Company sufficient cash funds form attached hereto as required by the terms hereof, to pay in full at the Effective Time, or promptly thereafter, to the holders of the Common Stock, the Exchange Funds and shall have deposited the Exchange Funds with the Disbursing Agent pursuant to Section 1.05 hereof.Exhibit M.

Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the The obligation of the Company to effect the Merger shall be is further subject to the fulfillment at or prior to the Effective Time of the following additional conditions: (a) The representations and warranties of Parent and Merger Subsidiary shall have performed in all material respects their agreements contained Sub set forth in this Agreement required to that are qualified by Parent Material Adverse Effect shall be performed on or prior to the Effective Time true and correct in all respects, and the representations and warranties of Parent and Merger Subsidiary contained Sub set forth in this Agreement that are not qualified by Parent Material Adverse Effect shall be true and correct (without giving effect to any "materiality" qualifiers set forth therein) except for such failures to be true and correct as would not, in the aggregate, reasonably be expected to have a Parent Material Adverse Effect, in each case (or, in the case of those representations and warranties that are made as of a particular date or period, as of such date or period) as of the Closing Date as though made at and as of the Closing Date. The representations and warranties of Parent and Merger Sub set forth in the first sentence of Section 4.2(a) (Authorization) of this Agreement shall be true and correct on and in all respects as of the Effective Time Closing Date as if though made at and as of such date (except to the extent that such representations and warranties speak as of an earlier date, and which need be true and correct as of such earlier date) except for such failures to perform or to be true and correct that would not have a Parent Material Adverse Effect, and the Company shall have received a certificate of the chief executive officer or the chief financial officer of Parent to that effectClosing Date; (b) Parent shall have in all Parent Statutory Approvals material respects performed all obligations and Company Statutory Approvals complied with all covenants required by this Agreement to be obtained in order performed or complied with by it prior to permit consummation of the Merger under applicable law Effective Time; (c) Parent shall have been obtaineddelivered to the Company a certificate, except for any such Parent Statutory Approvals signed by its Chief Executive Officer or Company Statutory Approvals Chief Financial Officer, to the unavailability of which would noteffect that, individually or in the aggregate (i) have a Company Material Adverse Effect after at the Effective Time, or (ii) result in the Company or its subsidiaries failing to meet the standards for licensing, suitability or character under any Racing Laws relating to the conduct of Parent's or the Company's business which (after taking into account the anticipated impact of such failure to so meet such standards on other authorities) would have a Company Material Adverse Effect (after giving effect to the Merger); (c) The Parent shall have obtained the consent or approval to the transactions contemplated by this Agreement of each person from whom such consent or approval is required under any loan or credit agreement, note, mortgage, indenture, lease or other agreement or instrument to which the Parent is a party or by which it is bound except where the failure to obtain such consents or approvals would not, in the reasonable opinion of the Company, individually or in the aggregate, have a Parent Material Adverse Effect, or materially affect the consummation of Merger and the transactions contemplated hereby, including, without limitation, the Financing, and assuming the accuracy of the representations and warranties made by the Company in this Agreement in all respects, Parent and its Subsidiaries, taken as a whole, will not (i) be insolvent (either because the financial condition is such that the sum of its debts is greater than the fair value of its assets or because the present fair saleable value of its assets will be less than the amount required to pay its probable liability on its debts as they become absolute and matured), (ii) have unreasonably small capital with which to engage in its business or (iii) have incurred or plan to incur debts beyond its ability to pay as they become absolute and matured; and (d) The Parent shall have obtained and segregated for payment delivered to the Company sufficient cash funds as required by the terms hereofa certificate, to pay in full at dated the Effective TimeTime and signed by its Chief Executive Officer on behalf of Parent, or promptly thereafter, certifying to the holders of effect that the Common Stock, the Exchange Funds conditions set forth in Sections 6.2(a) and shall 6.2(b) have deposited the Exchange Funds with the Disbursing Agent pursuant to Section 1.05 hereofbeen satisfied.

Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect consummate the Merger shall be subject to the fulfillment at or prior to the Merger Effective Time of the following additional conditions: (a) Parent and Merger Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Effective Time and (i) the representations and warranties of Parent the SES Entities set forth in Sections 3.02 (Capitalization), and 3.03(a) – (c) (Authority; Non-Contravention) shall be true and correct in all material respects as of the date hereof and as of the Merger Subsidiary Effective Time as if made on and as of the Merger Effective Time (or, if given as of a specific date, at and as of such date) and (ii) the other representations and warranties of the SES Entities contained in this Agreement shall be true and correct in all material respects as of the date hereof and as of the Merger Effective Time as if made on and as of the Merger Effective Time (or, if given as if made of a specific date, at and as of such date date), except in the case of this clause (except ii) for changes expressly permitted by this Agreement. The Company shall have received a certificate of the chief executive officer or the chief financial officer of SES to that effect; (b) each SES Entity shall have performed in all material respects all obligations required to be performed by it under this Agreement on or prior to the extent that such representations and warranties speak as of an earlier date, and which need be true and correct as of such earlier date) except for such failures to perform or to be true and correct that would not have a Parent Material Adverse Effect, Merger Effective Time and the Company shall have received a certificate of the chief executive officer or the chief financial officer of Parent SES to that effect; (bc) all Parent Statutory Approvals and Company Statutory Approvals required pursuant to be obtained in order to permit consummation terms of the Merger, and concurrently with the effectiveness thereof, the board of directors of the Company immediately prior to the Merger under applicable law Effective Time shall be elected to serve as directors of Surviving Company to hold office in accordance with the certificate of incorporation and the bylaws of Surviving Company until their respective successors are duly elected or appointed and qualified; (d) the Company shall have been obtainedreceived the opinion of J▇▇▇▇ Day LLP, except for any counsel to the Company, in form and substance reasonably satisfactory to the Company, on the date on which the Registration Statement is filed and on the Closing Date, in each case dated as of such Parent Statutory Approvals or Company Statutory Approvals respective date, rendered on the unavailability basis of facts, representations and assumptions set forth in such opinion and the certificates obtained from officers of the Company, SES and Merger Subsidiary, all of which would notare consistent with the state of facts existing as of the date on which the Registration Statement is filed and the Merger Effective Time, individually or in as applicable, to the aggregate effect that (i) have the Merger will qualify as a Company Material Adverse Effect after reorganization within the Effective Time, or meaning of Section 368(a) of the Code and (ii) result in the Company or its subsidiaries failing to meet the standards for licensing, suitability or character under any Racing Laws relating and SES will each be a “party to the conduct reorganization” within the meaning of Parent's or Section 368 of the Company's business which (after taking into account Code. In rendering the anticipated impact of such failure opinion described in this Section 6.02(d), J▇▇▇▇ Day LLP shall have received and may rely upon the certificates and representations referred to so meet such standards on other authorities) would have a Company Material Adverse Effect (after giving effect to the Mergerin Section 5.14(f); (ce) The Parent SES and Merger Subsidiary must have delivered to its counsel, the Company and the Company’s counsel a certificate signed on behalf of SES and Merger Subsidiary by a duly authorized officer of SES and Merger Subsidiary certifying the representations set forth in Section 4.13 and as otherwise reasonably requested by the Company’s or SES and SES’ tax counsel; (f) the Company shall have been furnished with evidence satisfactory to it that SES has obtained the consent or approval to the transactions contemplated by this Agreement of each person from whom such consent or approval is required under any loan or credit agreementconsents, note, mortgage, indenture, lease or other agreement or instrument to which the Parent is a party or by which it is bound except where the failure to obtain such consents or approvals would not, and waivers set forth in the reasonable opinion Section 6.02(f) of the Company, individually or in the aggregate, have a Parent Material Adverse Effect, or materially affect the consummation of the transactions contemplated herebySES Disclosure Schedule; and (dg) The Parent the certificate of incorporation of Merger Subsidiary shall have obtained be in a form and segregated for payment substance acceptable to the Company sufficient cash funds as required by the terms hereof, to pay in full its reasonable discretion at the Merger Effective Time, or promptly thereafter, to the holders of the Common Stock, the Exchange Funds and shall have deposited the Exchange Funds with the Disbursing Agent pursuant to Section 1.05 hereof.

Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the The obligation of the Company to effect the Merger shall be is further subject to the fulfillment at or prior to the Effective Time of the following additional conditions: (a) Parent and Merger Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Effective Time and the The representations and warranties of Parent the ESOP and Merger Subsidiary contained in this Agreement Sub set forth herein shall be true and correct on both when made and at and as of the Effective Time Closing Date, as if made at and as of such date time (except to the extent that such representations and warranties speak expressly made as of an earlier date, in which case as of such date), except where the failure of such representations and which need warranties to be so true and correct (without giving effect to any limitation as of such earlier dateto “materiality” or “material adverse effect” qualifiers set forth therein) except for such failures to perform or to be true and correct that would not have a Parent Material Adverse Effect, and the Company shall have received a certificate of the chief executive officer or the chief financial officer of Parent to that effect; (b) all Parent Statutory Approvals and Company Statutory Approvals required to be obtained in order to permit consummation of the Merger under applicable law shall have been obtained, except for any such Parent Statutory Approvals or Company Statutory Approvals the unavailability of which would nothave, individually or in the aggregate (i) have a Company aggregate, an ESOP Material Adverse Effect after Effect. (b) The ESOP shall have in all material respects performed all obligations and complied with all covenants required by this Agreement to be performed or complied with by it prior to the Effective Time, or (ii) result in the Company or its subsidiaries failing to meet the standards for licensing, suitability or character under any Racing Laws relating to the conduct of Parent's or the Company's business which (after taking into account the anticipated impact of such failure to so meet such standards on other authorities) would have a Company Material Adverse Effect (after giving effect to the Merger);. (c) The Parent FCC Order shall not impose any condition on the ESOP, the Company or any Subsidiary of the Company that, individually or in combination with one or more other conditions, would reasonably be expected to have a material adverse effect on the business, assets, financial condition, results of operations on an ongoing basis or continuing operations of the broadcasting business of the Company and its Subsidiaries, taken as a whole. (d) The ESOP shall have delivered to the Company a certificate, dated the Effective Time and signed on its behalf by the ESOP Fiduciary, certifying to the effect that the conditions set forth in Sections 6.2(a) and 6.2(b) have been satisfied. (e) The Company shall have obtained an opinion from Valuation Research Corporation or another nationally recognized firm reasonably satisfactory to the consent or approval Company, in form and substance reasonably satisfactory to the Company, as to the solvency of the Company after giving effect to the transactions contemplated by this Agreement of each person from whom such consent or approval is required under (including any loan or credit agreement, note, mortgage, indenture, lease or other agreement or instrument to which financing in connection with the Parent is a party or by which it is bound except where transactions contemplated hereby and including the failure to obtain such consents or approvals would not, in the reasonable opinion of the Company, individually or in the aggregate, have a Parent Material Adverse Effect, or materially affect the consummation closing of the transactions contemplated hereby; and (d) The Parent shall have obtained and segregated for payment to the Company sufficient cash funds as required by the terms hereof, to pay in full at Tribune Purchase Agreement and the Effective Time, or promptly thereafter, to the holders of the Common Stock, the Exchange Funds and shall have deposited the Exchange Funds with the Disbursing Agent pursuant to Section 1.05 hereofESOP Purchase Agreement).

Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the The obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time Closing Date each of the following additional conditions:conditions (unless waived by the Company in accordance with the provisions of Section 7.6 hereof): (a) Parent Each of ADS and Merger Subsidiary Sub shall have performed performed, in all material respects their respects, all of its agreements contained in this Agreement herein that are required to be performed by ADS on or prior to the Effective Time and the representations and warranties of Parent and Merger Subsidiary contained in this Agreement shall be true and correct on and as of the Effective Time as if made at and as of such date (except to the extent that such representations and warranties speak as of an earlier date, and which need be true and correct as of such earlier date) except for such failures to perform or to be true and correct that would not have a Parent Material Adverse EffectClosing Date, and the Company shall have received a certificate of the chief executive officer Chairman or President of ADS, dated the chief financial officer of Parent Closing Date, certifying to that such effect;. (b) The representations and warranties of ADS and Merger Sub contained in this Agreement and in any document delivered in connection herewith shall be true and correct in all Parent Statutory Approvals and Company Statutory Approvals required to be obtained in order to permit consummation material respects, as of the Merger under applicable law Closing (except to the extent such representations and warranties speak of a specified earlier date and except as specifically contemplated by this Agreement), and the Company shall have been obtainedreceived a certificate of the President of ADS, except for any dated the Closing Date, certifying to such Parent Statutory Approvals or Company Statutory Approvals the unavailability of which would not, individually or in the aggregate (i) have a Company Material Adverse Effect after the Effective Time, or (ii) result in the Company or its subsidiaries failing to meet the standards for licensing, suitability or character under any Racing Laws relating to the conduct of Parent's or the Company's business which (after taking into account the anticipated impact of such failure to so meet such standards on other authorities) would have a Company Material Adverse Effect (after giving effect to the Merger);effect. (c) The Parent Company shall have obtained received from ADS certified copies of the consent or approval to resolutions of ADS's and Merger Sub's Boards of Directors and stockholders approving and adopting this Agreement, the ADS Ancillary Documents and the transactions contemplated by this Agreement of each person from whom such consent or approval is required under any loan or credit agreement, note, mortgage, indenture, lease or other agreement or instrument to which the Parent is a party or by which it is bound except where the failure to obtain such consents or approvals would not, in the reasonable opinion of the Company, individually or in the aggregate, have a Parent Material Adverse Effect, or materially affect the consummation of the transactions contemplated hereby; andhereby and thereby. (d) The Parent shall have obtained and segregated for payment to From the Company sufficient cash funds as required by the terms hereof, to pay in full at date of this Agreement through the Effective Time, there shall not have occurred any event that has had an ADS Material Adverse Effect; provided, that such an event will not be deemed to have occurred solely as a result of fluctuations in the trading price of the ADS Common Stock or promptly thereaftersolely as a result of changes in the industry which generally impact on all companies in ADS's business (other than specifically on ADS). (e) The fairness opinion of Roth ▇▇▇ital Partners, to the holders effect that the Merger or Merger Consideration, as the case maybe, is fair to the stockholders of the Common StockCompany from a financial point of view, as described in Section 4.33, has not been withdrawn; provided, however, that such withdrawal shall permit the Company not to fulfill its obligations to effect the Merger only 56 if the withdrawal of such opinion is a result of a material adverse change in the financial condition, business, operations or prospects of ADS and its Subsidiaries, taken as a whole. (f) The Company shall have received, prior to the earlier of the date the Company Proxy Statement is first mailed to the Company's stockholders and the effective date of the S-4, the Exchange Funds opinion of Winthrop & Weinstine, P.A., counsel to the Company, to the effect that the Merger will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code, and that the Company and ADS will each be a party to that reorganization within the meaning of Section 368(b) of the Code. In rendering such opinion, counsel shall be entitled to rely upon, among other things, reasonable assumptions as well as representations and covenants of ADS, Merger Sub and the Company. (g) The Company shall have deposited received the Exchange Funds with opinion of Akerman, Senterfitt & Eids▇▇, ▇.A. to such matters as the Disbursing Agent pursuant to Section 1.05 hereofCompany or its counsel shall reasonably request.