Common use of Conditions to Obligations of Acquiror and Sub Clause in Contracts

Conditions to Obligations of Acquiror and Sub. The obligations of Acquiror and Sub to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to the Closing, of each of the following conditions, any of which may be waived in writing by Acquiror in its sole discretion: (a) The representations and warranties of the Company contained in this Agreement or the Escrow Agreements or any certificate delivered pursuant hereto shall be true and correct in all respects when made and in all material respects as of the Closing Date, or in the case of representations and warranties that are made as of a specified date, such representations and warranties shall be true and correct in all material respects as of such specified date; provided, however, that representations and warranties qualified by Material Adverse Effect or other materiality qualifiers must instead be true and correct in all respects. The Company shall have performed all obligations and agreements and complied with all covenants and conditions required by this Agreement or the Escrow Agreements to be performed or complied with by it prior to or at the Closing, in all material respects. Acquiror shall have received from the Company a certificate to the effect set forth in the preceding sentences, signed by a duly authorized officer thereof. (b) Acquiror shall have received a certificate of the Secretary or an Assistant Secretary of the Company certifying as to the full force and effect of resolutions of its board of directors and stockholders attached thereto as exhibits evidencing the authorization of the Company to consummate the transactions contemplated by this Agreement. (c) The Voting and Joinder Agreement shall be in full force and effect. The representations and warranties of each Stockholder contained in the Voting and Joinder Agreement or any certificate delivered pursuant thereto shall be true and correct in all material respects both when made and as of the Closing Date. Each signatory to the Voting and Joinder Agreement shall have performed in all material respects all obligations and agreements and complied with all covenants and conditions required therein to be performed or complied with by them prior to or at the Closing. (d) At least 85% of the Offered Employees, including the Key Employees, shall have acknowledged that they will continue employment with the Company or its Subsidiaries following the Closing. (e) The Employment Agreements executed by the number of Key Employees identified in Schedule 6.3(e) of the Company Disclosure Schedules shall be effective at the Closing. (f) Since the date of this Agreement, there shall not have been a Material Adverse Effect. Acquiror shall have received a certificate signed on behalf of the Company, by a duly authorized officer thereof, to such effect. (g) Acquiror shall have received duly executed Joinder Agreements from the holders of at least the percentage of the outstanding shares of Company Capital Stock on an as-if converted to Company Common Stock basis set forth on Schedule 6.3(g)). (h) There shall not be pending any Action by any Governmental Authority: seeking to restrain or prohibit Acquiror’s ownership or operation (or that of Acquiror’s Subsidiaries or Affiliates, including the Company and its Subsidiaries) of all or any portion of the business or assets of the Company or any of its Subsidiaries, or of Acquiror or any of its Subsidiaries or Affiliates, or to compel Acquiror or any of its Subsidiaries or Affiliates, including the Company and its Subsidiaries, to dispose of or hold separate all or any of the business or assets of the Company or any of its Subsidiaries, or of Acquiror or any of its Subsidiaries or Affiliates. (i) The Company and each Subsidiary of the Company shall have obtained consents, waivers and approvals for the Merger and the other transactions contemplated by this Agreement and the Escrow Agreements required to be obtained from the third parties listed on Schedule 6.3(i) of the Company Disclosure Schedules, and shall have given all other notices required to be given to third parties that are not Governmental Authorities in connection with the Merger and the other transactions contemplated by this Agreement and the Ancillary Agreements. (j) The Company shall have taken the actions with respect to the Company Stock Options and Company Warrants as contemplated in this Agreement. (k) At the Effective Time, all Company Stock Options shall have been either exercised or expired. (l) Acquiror shall have received the written resignation of each of the directors of the Company and its Subsidiaries effective as of the Closing. (m) Acquiror shall have received an executed counterpart of each of the Escrow Agreements signed by each party other than Acquiror. (n) The Company shall have terminated the employment of (1) each employee of the Company and its Subsidiaries that is not an Offered Employee, and (2) each Offered Employee that had not accepted in writing the employment offer made to him/her by Acquiror. (o) The Company shall have repaid any and all of the debts and loans set forth on Schedule 6.3 of the Company Disclosure Schedules. (p) Each Stockholder and holder of Company Warrant that has any rights of pre-emption or participation, rights of first refusal, first offer, tag along or any similar rights, or any veto rights, special voting rights or requirement for a special majority, with respect to the execution and performance of this Agreement, under the Company's Certificate of Incorporation, any stockholders agreement and/or otherwise, shall have waived such right(s) in writing in a form reasonably satisfactory to Acquiror. (q) The Company shall have delivered to the Acquiror the Confirmation Letter referred to in Schedule 5.12 of the Company Disclosure Schedules, and the Acquiror shall have consented to the calculations set forth therein, which consent shall not be unreasonably withheld or delayed. (r) No power of attorney shall be in force with respect to any matter relating to Taxes of the Company or any of its Subsidiaries. (s) Acquiror shall have received the audited consolidated financial statements of the Company and its Subsidiaries as at December 31, 2013 and such audited financial statements shall be identical, in all material respects, to the Financial Statements. (t) Acquiror shall have received from the Company a certificate complying with Treasury Regulation Section 1.897-2(g)(1)(ii) that states that interests in the Company are not “United States real property interests.”

Conditions to Obligations of Acquiror and Sub. The obligations of Acquiror and Sub to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to the Closing, of each of the following conditions, any of which may be waived in writing by Acquiror in its sole discretion: (a) The representations and warranties of the Company contained in this Agreement or the Escrow Agreements any Ancillary Agreement or any certificate delivered pursuant hereto shall be true and correct in all material respects both when made and in all material respects as of the Closing Date, or in the case of representations and warranties that are made as of a specified date, such representations and warranties shall be true and correct in all material respects as of such specified date; provided, however, that representations and warranties qualified by Material Adverse Effect or other materiality qualifiers must instead be true and correct in all respects. The Company shall have performed all obligations and agreements and complied with all covenants and conditions required by this Agreement or the Escrow Agreements any Ancillary Agreement to be performed or complied with by it prior to or at the Closing, in all material respects. Acquiror shall have received from the Company a certificate to the effect set forth in the preceding sentences, signed by a duly authorized officer thereof. (b) Acquiror shall have received a certificate of the Secretary or an Assistant Secretary of the Company certifying as to the full force and effect of resolutions of its board of directors and stockholders attached thereto as exhibits evidencing the authorization of the Company to consummate the transactions contemplated by this Agreement. (c) The Voting Consent and Joinder Indemnity Agreement shall be in full force and effect. The representations and warranties of each Stockholder contained in the Voting Consent and Joinder Indemnity Agreement or any certificate delivered pursuant thereto shall be true and correct in all material respects both when made and as of the Closing Date. Each signatory to the Voting and Joinder Agreement Stockholder shall have performed in all material respects all obligations and agreements and complied with all covenants and conditions required therein by the Consent and Indemnity Agreement to be performed or complied with by them prior to or at the Closing. Acquiror shall have received from each Stockholder a certificate to the effect set forth in the preceding sentences, signed by such Stockholder (if an individual) or a duly authorized officer of such Stockholder or other Person authorized by such Stockholder (if not an individual). (d) At least 85% The Employment Agreements of the Offered Employees, including the those Key Employees, Employees set forth on Schedule 6.3(d) shall have acknowledged that they will continue employment with the Company or its Subsidiaries following the Closingbe in full force and effect. (e) The Employment Agreements executed by the number of Key Employees identified in Schedule 6.3(e) of the Company Disclosure Schedules shall be effective at the Closing. (f) Since the date of this Agreement, there shall not have been a Material Adverse Effect nor any event, change, circumstance, effect, development or state of facts that would reasonably be expected to have a Material Adverse Effect. Acquiror shall have received a certificate signed on behalf of the Company, by a duly authorized officer thereof, to such effect. (gf) Acquiror shall have received duly executed Joinder Agreements Stockholder Consents from (i) the holders of Stockholders holding at least the percentage 90% of the outstanding shares capital stock of the Company Capital Stock on an as-if converted to and (ii) Vested Option Holders holding at least 50% of the Vested Options. (g) Acquiror shall have received a general release in favor of the Company Common Stock basis set forth on Schedule 6.3(g))from the Key Employees, each of the Stockholders which has executed the Consent and Indemnity Agreement and each of the Stockholders which has delivered a Stockholder Consent. (h) There shall not be pending any Action by any Governmental Authority: Authority seeking to restrain or prohibit Acquiror’s ownership or operation (or that of Acquiror’s Subsidiaries or Affiliates, including the Company and its Subsidiaries) of all or any portion of the business or assets of the Company or any of its Subsidiaries, or of Acquiror or any of its Subsidiaries or Affiliates, or to compel Acquiror or any of its Subsidiaries or Affiliates, including the Company and its Subsidiaries, to dispose of or hold separate all or any of the business or assets of the Company or any of its Subsidiaries, or of Acquiror or any of its Subsidiaries or Affiliates. (i) The Company and each Subsidiary of the Company shall have obtained all such consents, waivers and approvals for the Merger and the other transactions contemplated by this Agreement and the Escrow Ancillary Agreements required to be obtained from the third parties listed on Schedule 6.3(i) of the Company Disclosure Schedulesthat are not Governmental Authorities, and shall have given all other notices required to be given to third parties that are not Governmental Authorities in connection with the Merger and the other transactions contemplated by this Agreement and the Ancillary Agreements, except for such consents, waivers, approvals and notices that, individually and in the aggregate, would not be reasonably likely to have a Material Adverse Effect. (j) Acquiror shall be in agreement (which shall not be unreasonably withheld or delayed) with the calculations set forth in the Merger Consideration Schedule in accordance with Exhibit C. (k) The Company shall have taken the actions with respect to the Company Stock Options and Company the Warrants as contemplated in this Agreement. (kSection 2.10(a) At the Effective Timeand Section 2.10(f), all Company Stock Options shall have been either exercised or expiredrespectively. (l) Acquiror shall have received the written resignation of each of the directors of the Company and its Subsidiaries effective as of the ClosingSubsidiaries. (m) Acquiror shall have received an executed counterpart of each of the Escrow Agreements Agreement, in each case signed by each party other than Acquiror. (n) The Company shall have terminated delivered to Acquiror the employment of (1) each employee Financial Statements and the consent of the Company Company’s independent auditors and any other consents required in order for Acquiror to include in its Subsidiaries that is not an Offered Employee, filings with the SEC the Financial Statements and (2) each Offered Employee that had not accepted any other information required with respect to such filings as a result of the transactions contemplated hereunder and in writing connection with the employment offer made to him/her by AcquirorShelf Registration Statement. (o) The Company shall have repaid any and all of the debts and loans set forth on Schedule 6.3 of the Company Disclosure Schedules. (p) Each Stockholder and holder of Company Warrant that has any rights of pre-emption or participation, rights of first refusal, first offer, tag along or any similar rights, or any veto rights, special voting rights or requirement for a special majority, with respect to the execution and performance of this Agreement, under the Company's Certificate of Incorporation, any stockholders agreement and/or otherwise, shall have waived such right(s) in writing in a form reasonably satisfactory to Acquiror. (q) The Company shall have delivered to the Acquiror the Confirmation Letter referred to in Schedule 5.12 of the Company Disclosure Schedules, and the Acquiror shall have consented to the calculations set forth therein, which consent shall not be unreasonably withheld or delayed. (r) No power of attorney shall be in force with respect to any matter relating to Taxes of the Company or any of its Subsidiaries. (s) Acquiror shall have received the audited consolidated financial statements of the Company and its Subsidiaries as at December 31, 2013 and such audited financial statements shall be identical, in all material respects, to the Financial Statements. (t) Acquiror shall have received from the Company a certificate complying with Treasury Regulation Section 1.897-2(g)(1)(ii) that states that interests in the Company are not “United States real property interests.”