Common use of Conditions to Obligations of Parent and Merger Sub to Effect the Merger Clause in Contracts

Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to effect the Merger are further subject to the satisfaction on or prior to the Closing Date of each of the following conditions (any or all of which may be waived by Parent and Merger Sub in writing, in whole or in part, to the extent permitted by applicable Law): (a) The representations and warranties of the Company set forth in this Agreement shall be true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein) at and as of the Closing Date, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date), except where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein) individually or in the aggregate has not had, and would not be reasonably likely to have or result in, a Material Adverse Effect on the Company. Parent shall have received a certificate signed on behalf of the Company by each of two senior executive officers of the Company to the foregoing effect; (b) The Company shall have performed or complied with in all material respects each of its obligations under this Agreement required to be performed or complied with by it at or prior to the Closing Date pursuant to the terms of this Agreement, and Parent shall have received a certificate signed on behalf of the Company by each of two senior executive officers of the Company to the foregoing effect; (c) There shall not be pending any suit, action or proceeding, in each case, by any Governmental Entity seeking to (i) prohibit or limit in any material respect the ownership or operation by the Company, Parent or Merger Sub or any of their respective affiliates of a substantial portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or to require any such Person to dispose of or hold separate any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, as a result of the Merger or any of the other transactions contemplated by this Agreement, or (ii) restrain, preclude, enjoin or prohibit the Merger or any of the other transactions contemplated by this Agreement; and (d) Parent shall have received the opinion of V▇▇▇▇▇ & E▇▇▇▇▇ L.L.P., counsel to Parent, in form and substance reasonably satisfactory to Parent, dated the Closing Date, rendered on the basis of facts, representations and assumptions set forth in such opinion and the certificates obtained from officers of Parent, Merger Sub and the Company, all of which are consistent with the state of facts existing as of the Effective Time, to the effect that (i) the Merger will qualify as a reorganization within the meaning of Section 368(a) of the Code and (ii) the Company and Parent will each be a “party to the reorganization” within the meaning of Section 368 of the Code. In rendering the opinion described in this Section 6.3(d), V▇▇▇▇▇ & E▇▇▇▇▇ L.L.P. shall have received and may rely upon the certificates and representations referred to in Section 5.12(c) hereof.

Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to effect the Merger are further shall be subject to the satisfaction on (or prior to waiver by the Closing Date of each of the following conditions (any or all of which may be waived by Parent and Merger Sub in writing, in whole their discretion) at or in part, prior to the extent permitted by applicable Law):Effective Time of the following additional conditions: (a) The representations and warranties of the Company set forth in this Agreement shall be true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein) at and as of the Closing Date, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date), except where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein) individually or in the aggregate has not had, and would not be reasonably likely to have or result in, a Material Adverse Effect on the Company. Parent shall have received a certificate signed on behalf of the Company by each of two senior executive officers of the Company to the foregoing effect; (b) The Company shall have performed or complied with in all material respects each of its obligations under this Agreement required to be performed or complied with by it at or prior to the Closing Date pursuant Effective Time; and the representations and warranties of the Company contained in this Agreement which are qualified with respect to materiality shall be true and correct in all respects, and such representations and warranties that are not so qualified shall be true and correct in all material respects, in each case as of the terms date of this Agreement and at and as of the Effective Time as if made at and as of such time, except as contemplated by the Company Disclosure Letter or this Agreement, ; and Parent and Merger Sub shall have received a certificate signed on behalf Certificate of the Chief Executive Officer, the President, an Executive Vice President, Senior Vice President or the Chief Financial Officer of the Company by each as to the satisfaction of two senior executive officers this condition; (b) the aggregate number of Shares of the Company on the Effective Time of the Merger, the holders of which have delivered notice of their exercise (or intent to exercise) appraisal rights in accordance with the foregoing effectprovisions of Section 262 of Delaware Corporate Law, shall not exceed 5% of the Shares outstanding as of the record date for the Company Stockholder Meeting; (c) There shall not be pending any suit, action or proceeding, in each case, by any Governmental Entity seeking to (i) prohibit or limit in any material respect the ownership or operation by the Company, Parent or Merger Sub or any of their respective affiliates of a substantial portion of the business or assets of the Company Voting Agreement and its Subsidiaries, taken as a whole, or to require any such Person to dispose of or hold separate any material portion of the business or assets of Proxy shall be in full force and effect and the Company Principal shall have performed in all material respects all obligations required to be performed by it under the Company Voting Agreement and its Subsidiaries, taken as a whole, as a result of the Merger or any of Proxy prior to the other transactions contemplated by this Agreement, or (ii) restrain, preclude, enjoin or prohibit the Merger or any of the other transactions contemplated by this AgreementClosing Date; and (d) Parent and Merger Sub shall have received obtained the opinion of V▇▇▇▇▇ & E▇▇▇▇▇ L.L.P., counsel debt financing necessary to Parent, in form and substance reasonably satisfactory to Parent, dated consummate the Closing Date, rendered on the basis of facts, representations and assumptions set forth in such opinion and the certificates obtained from officers of Parent, Merger Sub and the Company, all of which are consistent with the state of facts existing as of the Effective TimeMerger, to the effect that (i) the Merger will qualify as a reorganization within the meaning pay off all fees and expenses in connection therewith, to refinance existing indebtedness of Section 368(a) of the Code and (ii) the Company and Parent will each be a “party and to provide working capital for the Surviving Corporation pursuant to the reorganization” within Debt Financing Commitments or other substantially equivalent financing reasonably acceptable to Parent. (e) the meaning of Section 368 of the Code. In rendering the opinion described in this Section 6.3(d), V▇▇▇▇▇ & E▇▇▇▇▇ L.L.P. Company shall have received obtained the consent, approval or waiver of each person whose consent, approval or waiver shall be required in connection with the Merger and may rely upon the certificates and representations referred transactions contemplated by this Agreement, except for those which the failure to obtain such consent, approval or waiver, individually or in Section 5.12(c) hereofthe aggregate, could not reasonably be expected to result in a Company Material Adverse Effect.

Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations obligation of Parent and Merger Sub to effect Effect the Merger are is further subject to the satisfaction on or prior to the Closing Date of each waiver by Parent of the following conditions (any or all of which may be waived by Parent and Merger Sub in writing, in whole or in part, to the extent permitted by applicable Law):conditions: (a) (i) The representations and warranties of the Company set forth contained in this Agreement ‎Section 4.3 (Authority) shall be true and correct (without giving effect to any limitation in all respects as to “materiality” or “Material Adverse Effect” set forth therein) at of the date of this Agreement and as of the Closing Date, (ii) the representations and warranties of the Company contained in ‎Section 4.1 (Organization; Qualification), ‎Section 4.2 (Capitalization), ‎Section 4.4 (Consents and Approvals; No Violations; Voting), ‎Section 4.5‎(b) (SEC Reports and Financial Statements), ‎Section 4.10 (Litigation)(solely with respect to litigation against the Company or its executive officers or directors, but disregarding for the purpose of this clause (ii) any litigation against executive officers and directors arising from allegations of a breach of fiduciary duty relating to this Agreement, the Merger or the other Transactions, or the approval thereof by the Company), ‎Section 4.12(a) – (d) (Taxes), and ‎Section 4.16(a), (b) and (e) (Intellectual Property) shall be true and correct as of the date of this Agreement and (disregarding for such purpose any materiality and Material Adverse Effect qualifier included therein) as of the Closing Date as if made at on and as of such time the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such date), except where the failure of for such representations and warranties failures to be so true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein) that, individually or in the aggregate has not hadaggregate, and would not be reasonably likely to have or result in, a Material Adverse Effect material effect on the Company. Parent shall have received a certificate signed on behalf of the Company by each of two senior executive officers of the Company to the foregoing effect; (b) The Company shall have performed or complied with in all material respects each of its obligations under this Agreement required to be performed or complied with by it at or prior to the Closing Date pursuant to the terms of this Agreement, and Parent shall have received a certificate signed on behalf of the Company by each of two senior executive officers of the Company to the foregoing effect; (c) There shall not be pending any suit, action or proceeding, in each case, by any Governmental Entity seeking to (i) prohibit or limit in any material respect the ownership or operation by the Company, Parent or Merger Sub or any of their respective affiliates of a substantial portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or to require any such Person to dispose of or hold separate any material portion of the business or assets and (iii) all other representations and warranties of the Company contained in this Agreement shall be true and its Subsidiaries, taken correct as a whole, as a result of the Merger or date of this Agreement and (disregarding for such purpose any materiality and Material Adverse Effect qualifier included therein) as of the other transactions contemplated by this Agreement, or (ii) restrain, preclude, enjoin or prohibit the Merger or any Closing Date as if made on and as of the other transactions contemplated Closing Date (except to the extent expressly made as of an earlier date, in which case as of such date), except for such failures to be true and correct that, individually or in the aggregate, would not have a Material Adverse Effect. It is hereby clarified that, for purposes of determining the satisfaction of this condition, failures or inaccuracies in the representations and warranties of the Company contained in this Agreement shall be disregarded to the extent (and only to the extent) that the adjustment provisions set forth in the definition of the Per Share Merger Consideration properly account for the damages or losses, if any, attributable to the same. (b) The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement; andAgreement at or prior to the Closing Date. (c) Parent and Merger Sub shall have received the Company Certificate and a certificate signed on behalf of the Company by the Chief Executive Officer of the Company as to the satisfaction of the conditions set forth in ‎Section 7.3(a), ‎Section 7.3(b). (d) Parent shall have received Between the opinion date of V▇▇▇▇▇ & E▇▇▇▇▇ L.L.P., counsel to Parent, in form this Agreement and substance reasonably satisfactory to Parent, dated the Closing Date, rendered on there shall not have been any Material Adverse Effect. It is hereby clarified that, for purposes of determining the basis satisfaction of factsthis condition, representations Effects that would constitute or contribute to the Material Adverse Effect shall be disregarded to the extent (and assumptions only to the extent) that the adjustment provisions set forth in such opinion and the certificates obtained from officers of Parent, Merger Sub and the Company, all of which are consistent with the state of facts existing as definition of the Effective TimePer Share Merger Consideration properly account for the damages or losses, if any, attributable to the effect that (i) the Merger will qualify as a reorganization within the meaning of Section 368(a) of the Code and (ii) the Company and Parent will each be a “party to the reorganization” within the meaning of Section 368 of the Code. In rendering the opinion described in this Section 6.3(d), V▇▇▇▇▇ & E▇▇▇▇▇ L.L.P. shall have received and may rely upon the certificates and representations referred to in Section 5.12(c) hereofsame.

Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to effect the Merger are further subject to the satisfaction on or prior to the Closing Date of each of the following conditions (any or all of which may be waived by Parent and Merger Sub in writing, in whole or in part, to the extent permitted by applicable Law): (a) The representations and warranties of the Company set forth in Sections 3.7 and 3.9(i) of this Agreement shall be true and correct in all respects at and as of the Closing Date, as if made at and as of such date. The representations and warranties of the Company set forth in Section 3.3 of this Agreement shall be true and correct in all respects (except for any de minimis inaccuracies therein) at and as of the Closing Date, as if made at and as of such date (except to the extent expressly made as of an earlier date, in which case as of such date). The representations and warranties of the Company set forth in Article III of this Agreement, other than Sections 3.3, 3.7 and 3.9(i), shall be true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein) at and as of the Closing Date, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date), except where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein) individually or in the aggregate has not had, and would could not reasonably be reasonably likely expected to have or result in, a Material Adverse Effect on the CompanyEffect. Parent shall have received a certificate signed on behalf of the Company by each of two senior executive officers of the Company to the foregoing effect; (b) The Company shall have performed or complied with in all material respects each of its obligations under this Agreement required to be performed or complied with by it at or prior to the Closing Date pursuant to the terms of this Agreement, and Parent shall have received a certificate signed on behalf of the Company by each of two senior executive officers of the Company to the foregoing effect; (c) There shall not be pending any suit, action or proceeding, in each case, by any Governmental Entity seeking to (i) prohibit or limit in any material respect the ownership or operation by the Company, Parent or Merger Sub or any of their respective affiliates of a substantial all or any portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or to require any such Person to dispose of or hold separate all or any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, as a result of the Merger or any of the other transactions contemplated by this Agreement, or (ii) restrain, preclude, enjoin or prohibit the Merger or any of the other transactions contemplated by this Agreement; and; (d) Parent shall have received the opinion of V▇▇▇▇▇ & E▇▇▇▇▇ L.L.P., counsel to Parent, in form and substance reasonably satisfactory to Parent, dated the Closing Date, rendered on the basis of facts, representations and assumptions set forth in such opinion and the certificates obtained from officers of Parent, Merger Sub and the Company, all of which are consistent with the state of facts existing as of the Effective Time, to the effect that (i) the Merger will qualify as a reorganization within the meaning of Section 368(a) of the Code and (ii) the Company and Parent will each be a “party to the reorganization” within the meaning of Section 368 of the Code. In rendering the opinion described in this Section 6.3(d), V▇▇▇▇▇ & E▇▇▇▇▇ L.L.P. shall have received and may rely upon the certificates and representations referred to in Section 5.12(c5.12(b) hereof; (e) Since the date of this Agreement, there shall not have been any Material Adverse Effect with respect to the Company that has occurred and is continuing. Parent shall have received a certificate signed on behalf of the Company by a duly authorized officer of the Company certifying as to the satisfaction of the conditions specified in the preceding sentence; (f) The number of Appraisal Shares for which demands for appraisal have not been withdrawn shall not exceed 10% of the outstanding shares of Company Common Stock; and (g) None of the individuals indentified on Schedule 6.3(g) of the Parent Disclosure Letter shall have ceased to be employed by the Company or one of its Subsidiaries, as the case may be, or shall have expressed any intention to terminate his or her employment with the Company or such Subsidiary or decline to accept employment with Parent or any of its Subsidiaries, in each case other than as a result of the death or incapacity due to mental or physical illness (which is determined to be total and permanent by a physician selected by Parent) of one, but not more than one, of such individuals.

Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to effect the Merger are further subject to the satisfaction on or waiver at or prior to the Closing Date of each Effective Time of the following conditions (any or all of which may be waived by Parent and Merger Sub in writing, in whole or in part, to the extent permitted by applicable Law):conditions: (ai) The representations and warranties of the Company set forth in Sections 3.2 and 3.3 shall be true and correct in all respects (except in the case of Section 3.2(a) for such inaccuracies as are de minimis in the aggregate) both when made and at and as of the Closing Date, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date); and (ii) the representations and warranties of the Company set forth in this Agreement (other than the representations and warranties described in clause (i) above) shall be true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein, except, for the avoidance of doubt, Section 3.7) both when made and at and as of the Closing Date, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date), except where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein, except, for the avoidance of doubt, Section 3.7) individually or in the aggregate has does not hadhave, and would is not be reasonably likely to have or result in, a Company Material Adverse Effect on the CompanyEffect. Parent and Merger Sub shall have received a certificate signed on behalf of the Company by each of two senior executive officers the Chief Executive Officer and the Chief Financial Officer of the Company to the foregoing effect; (b) The Company shall have performed or complied with in all material respects each of its obligations under this Agreement required to be performed or complied with by it at or prior to the Closing Date Effective Time pursuant to the terms of this Agreement, and Parent and Merger Sub shall have received a certificate signed on behalf of the Company by each of two senior executive officers of the Company Chief Executive Officer or Chief Financial Officer to the foregoing such effect; (c) There shall not be pending any suit, action or proceeding, in each case, proceeding by any Governmental Entity seeking to (i) prohibit or limit in any material respect the ownership or operation by the Company, Parent or Parent, Merger Sub Sub, the Surviving Corporation or any of their respective affiliates of a substantial portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or to require any such Person to dispose of or hold separate any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, as a result of the Merger or any of the other transactions contemplated by this Agreement, hereby or (ii) restrain, preclude, enjoin or prohibit the Merger or any of the other transactions contemplated by this Agreementhereby; and (d) Parent There shall not have received the opinion of V▇▇▇▇▇ & E▇▇▇▇▇ L.L.P., counsel to Parent, in form been and substance reasonably satisfactory to Parent, dated the Closing Date, rendered on the basis of facts, representations and assumptions set forth in such opinion and the certificates obtained from officers of Parent, Merger Sub and the Company, all of which are consistent with the state of facts existing as of the Effective Time, to the effect that (i) the Merger will qualify as be continuing a reorganization within the meaning of Section 368(a) of the Code and (ii) the Company and Parent will each be a “party to the reorganization” within the meaning of Section 368 of the Code. In rendering the opinion described in this Section 6.3(d), V▇▇▇▇▇ & E▇▇▇▇▇ L.L.P. shall have received and may rely upon the certificates and representations referred to in Section 5.12(c) hereofMaterial Adverse Effect.

Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to effect the Merger are further subject to the satisfaction on or prior to the Closing Date of each of the following conditions (any or all of which may be waived by Parent and Merger Sub in writing, in whole or in part, to the extent permitted part by applicable LawParent): (a) The representations and warranties of the Company set forth in this Agreement shall be true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein) at and as of the Closing Date, (without regard to any qualification as if to materiality or Company Material Adverse Effect) as though made at and as of such time (except to or, in the extent expressly made case of representations and warranties that address matters only as of an earlier a particular date, in which case as of such date), except where the failure of for such representations and warranties failures to be so true and correct (without giving effect as would not reasonably be expected to any limitation as to “materiality” or “Material Adverse Effect” set forth therein) have, individually or in the aggregate has not hadaggregate, a Company Material Adverse Effect, and would not be reasonably likely to have or result in, a Material Adverse Effect on the Company. Parent and Merger Sub shall have received a certificate to such effect signed on behalf of the Company by each of two senior its chief executive officers of the Company to the foregoing effect;officer and chief financial officer. (b) The Company shall have performed or complied with in with, as applicable, all material respects each of its obligations under obligations, agreements and covenants required by this Agreement required to be performed or complied with by it at or prior to the Closing Date pursuant to the terms of this Agreementit, and Parent and Merger Sub shall have received a certificate to such effect signed on behalf of the Company by each of two senior its chief executive officers of the Company to the foregoing effect;officer and chief financial officer. (c) There No statute, rule, regulation, judgment, order or injunction shall not be pending any suithave been promulgated, action entered, enforced, enacted, issued or proceeding, in each case, applicable to the Merger by any Governmental Entity seeking to which (i1) prohibit requires an increase in the Merger Consideration, (2) prohibits, or limit in imposes any material respect the ownership limitations on, Parent’s or operation by the Company, Parent its subsidiaries’ (or Merger Sub Sub’s) or affiliates’ ownership (or which imposes any limitations that would affect its or their operation) of any portion of their respective affiliates businesses or assets, (3) imposes any requirement to divest, hold separate or otherwise dispose of a substantial any portion of their respective businesses or assets, (4) prohibits or imposes any limitation on its or their ability to effect the business Merger, or assets the ability of the Company and (or Merger Sub) or its Subsidiaries, taken as a whole, or their respective subsidiaries to require any such Person to dispose of acquire or hold separate or exercise full rights of ownership of any material portion capital stock of the business or assets any subsidiary of the Company or (5) imposes limitations on its or their ability to effectively control their respective businesses or any limitation which would affect its or their ability to control their respective operations, and its Subsidiaries, taken as a whole, as a result of the Merger no action or proceeding by any Governmental Entity shall be pending which seeks any of the other transactions contemplated by this Agreement, or results described in clauses (ii1) restrain, preclude, enjoin or prohibit the Merger or any of the other transactions contemplated by this Agreement; andthrough (5). (d) Parent shall have received the opinion of V▇▇▇▇▇▇, ▇▇▇▇▇▇ & E▇▇▇▇▇ L.L.P.LLP or, counsel if such firm is unable to Parentrender such opinion, in form and substance reasonably satisfactory to Parentthe opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, dated the Closing Date, rendered based on the basis appropriate representations of facts, representations and assumptions set forth in such opinion and the certificates obtained from officers of Parent, Merger Sub and the Company, all of which are consistent with the state of facts existing its affiliates, and Parent, and such other facts, representations, assumptions, and agreements as of the Effective Timecounsel may reasonably deem relevant, to the effect that for United States Federal income tax purposes (i1) the Merger will qualify as a reorganization within the meaning of Section 368(a) 368 of the Code Code; (2) each of Parent and (ii) the Company and Parent will each be a “party to the reorganization” reorganization within the meaning of Section 368 368(b) of the Code. In rendering ; and (3) the opinion described in this Merger will qualify as a complete liquidation of the Company within the meaning of Section 6.3(d), V▇▇▇▇▇ & E▇▇▇▇▇ L.L.P. shall have received and may rely upon 332 of the certificates and representations referred to in Section 5.12(c) hereofCode.

Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to effect the Merger are further subject to the satisfaction on (or prior to the Closing Date of each waiver by Parent in its sole discretion) of the following conditions (any or all of which may be waived by Parent and Merger Sub in writing, in whole or in part, to the extent permitted by applicable Law):further conditions: (a) The representations and warranties of the Company set forth in this Agreement shall be true and correct (without giving effect in all material respects, with respect to any limitation representations and warranties not qualified by materiality, or in all respects, with respect to representations and warranties qualified by materiality, as to “materiality” or “Material Adverse Effect” set forth therein) at of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date, as if made at and as of such time (except to the extent that such representations and warranties expressly made as of an earlier relate to a particular date, in which case as of such date), except where the failure of such representations and warranties to shall be so true and correct (without giving effect to any limitation as to “materiality” of such particular date and for changes in such representations and warranties contemplated or “Material Adverse Effect” set forth therein) individually or in the aggregate has not hadpermitted by this Agreement, and would except further to the extent that any such failure to be true and correct is not be reasonably likely material to have or result inthe Company and its Subsidiaries, taken as a whole. For these purposes, representations and warranties referring to a Material Tax Return, a Material Adverse Effect on the CompanyAmount of Tax, a Material Amount of Income or a Material Amount of Reduction shall be treated as representations and warranties qualified by materiality. Parent shall have received a certificate signed on behalf of the Company by each of two senior an executive officers officer of the Company to the foregoing such effect;. (b) The Company shall have performed or complied with in all material respects each of its all obligations under this Agreement required to be performed or complied with by it under this Agreement at or prior to the Closing Date pursuant Date; provided that, with respect to obligations that are qualified by materiality, the terms of this AgreementCompany shall have performed such obligations, and as so qualified, in all respects. Parent shall have received a certificate signed on behalf of the Company by each of two senior an executive officers officer of the Company to the foregoing such effect;. (c) There The Company shall not be pending any suit, action or proceeding, in each case, by any Governmental Entity seeking to have furnished Parent and Merger Sub with (i1) prohibit or limit in any material respect the ownership or operation by CFO Certificate and (2) a certificate of the Secretary of the Company, Parent or Merger Sub or any of their respective affiliates of a substantial portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or to require any such Person to dispose of or hold separate any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, as a result of the Merger or any of the other transactions contemplated by this Agreement, or (ii) restrain, preclude, enjoin or prohibit the Merger or any of the other transactions contemplated by this Agreement; and (d) Parent shall have received the opinion of V▇▇▇▇▇ & E▇▇▇▇▇ L.L.P., counsel to Parent, in form and substance reasonably satisfactory to Parent, dated the Closing Date, rendered on the basis of facts, representations and assumptions set forth in such opinion and the certificates obtained from officers of Parent, Merger Sub and the Company, all of which are consistent with the state of facts existing as of the Effective Time, to the effect that certifying that: (i) attached thereto is a true and complete copy of resolutions adopted unanimously by the Merger will qualify as a reorganization within the meaning Board of Section 368(a) Directors of the Code Company approving this Agreement and the Merger; and (ii) attached thereto is a true and complete copy of the written consent signed by the holder(s) of a majority of the then outstanding Company Shares voting as a single class adopting and approving this Agreement and the Merger. (d) There shall not have occurred a Company Material Adverse Effect. (e) The Company shall have delivered to Parent a duly executed and certified FIRPTA Certificate. (f) The Company shall have delivered to Parent resignations from the directors of the Company and (other than those set forth on Schedule 5.4). (g) The Company shall have delivered to Parent will each be a “party to the reorganization” within the meaning of Section 368 of the Code. In rendering the opinion described in this Section 6.3(d), Vduly executed pay off letter from ▇▇▇▇▇ & E▇▇▇▇▇ L.L.P. Fargo Foothill, Inc. as administrative agent and collateral agent under the Loan and Security Agreement, dated as of December 29, 2003 (as amended), among the Company, International Mill Service, Inc. and the Lenders signatory thereto, which letter shall contain usual and customary provisions relating to the repayment of the loans made thereunder and the release of the liens granted thereunder. (h) The Company shall have received delivered to Parent a certificate of good standing for the Company from the Secretary of State of the State of Delaware, dated a reasonable date prior to the Closing Date, and may rely upon certificates of good standing for the certificates and representations referred to Subsidiaries of the Company from the applicable Governmental Entities in Section 5.12(c) hereofsuch Subsidiaries’ jurisdictions of organization.

Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations respective obligation of Parent and Merger Sub to effect the Merger are further shall be subject to the satisfaction on fulfillment or waiver by Parent at or prior to the Closing Date of each Effective Time of the following conditions (any or all of which may be waived by Parent and Merger Sub in writing, in whole or in part, to the extent permitted by applicable Law):conditions: (ai) The representations and warranties of the Company set forth in this Agreement (A) Sections 4.2, 4.18, 4.22, the third sentence of Section 4.10 and the first sentence of Section 4.19 shall be true and correct (without giving effect to any limitation in all material respects at and as to “materiality” or “Material Adverse Effect” set forth therein) of the date of this Agreement and at and as of the Closing Date, Date as if made at and as of such time the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such earlier date), (B) Section 4.3 shall be true and correct at and as of the date of this Agreement and at and as of the Closing Date as if made at and as of the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such earlier date), except for de minimis inaccuracies and (C) any other Section of this Agreement shall be true and correct (without giving effect to any materiality or Company Material Adverse Effect qualifiers) at and as of the date of this Agreement and at and as of the Closing Date as if made at and as of the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such earlier date), except where the failure of such representations and warranties referred to in this clause (C) to be so true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein) does not constitute, individually or in the aggregate has not hadaggregate, a Company Material Adverse Effect, and would not be reasonably likely to have or result in, a Material Adverse Effect on the Company. (ii) Parent shall have received at the Closing a certificate signed on behalf of the Company by each of two a senior executive officers officer of the Company to the foregoing effect;effect that the conditions set forth in this Section 7.2(a)(i) have been satisfied. (b) The Company shall have performed or complied with in all material respects each of its obligations under this Agreement required to be performed or complied with by it under this Agreement at or prior to the Closing Date pursuant to the terms of this AgreementDate, and Parent shall have received a certificate signed on behalf of the Company by each of two a senior executive officers officer of the Company to the foregoing such effect; (c) There shall not be pending any suit, action or proceeding, in each case, by any Governmental Entity seeking to (i) prohibit or limit in any material respect the ownership or operation by the Company, Parent or Merger Sub or any of their respective affiliates of a substantial portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or to require any such Person to dispose of or hold separate any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, as a result of the Merger or any of the other transactions contemplated by this Agreement, or (ii) restrain, preclude, enjoin or prohibit the Merger or any of the other transactions contemplated by this Agreement; and (d) Parent shall have received the opinion of V▇▇▇▇▇ & E▇▇▇▇▇ L.L.P., counsel to Parent, in form and substance reasonably satisfactory to Parent, dated the Closing Date, rendered on the basis of facts, representations and assumptions set forth in such opinion and the certificates obtained from officers of Parent, Merger Sub and the Company, all of which are consistent with the state of facts existing as of the Effective Time, to the effect that (i) the Merger will qualify as a reorganization within the meaning of Section 368(a) of the Code and (ii) the Company and Parent will each be a “party to the reorganization” within the meaning of Section 368 of the Code. In rendering the opinion described in this Section 6.3(d), V▇▇▇▇▇ & E▇▇▇▇▇ L.L.P. shall have received and may rely upon the certificates and representations referred to in Section 5.12(c) hereof.

Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The Solely if the Offer Termination shall have occurred or the Acceptance Time shall not have occurred, in addition to the conditions set forth in Section 8.1, the obligations of Parent and Merger Sub to effect the Merger are further subject to the satisfaction on or (to the extent permissible by Law) waiver at or prior to the Closing Date Effective Time, of each of the following conditions (any or all of which may be waived by Parent and Merger Sub in writing, in whole or in part, to the extent permitted by applicable Law):conditions: (a) The any waiting period under the HSR Act applicable to the Transactions shall have expired or been terminated; (b) there shall not (i) be any statute, rule, regulation, executive order, decree, ruling, judgment, decision, order, request or injunction enacted, entered, promulgated, issued, communicated or enforced by any Governmental Entity that is in effect and has the effect, directly or indirectly, of (A) prohibiting or enjoining or (B) prohibiting or materially limiting the ownership or operation by Parent, the Company or any of their Subsidiaries of any portion of any business or any assets of Parent, the Company or any of their Subsidiaries as a result of or in connection with any of the Transactions or (ii) exist or be instituted or pending any claim, suit, action or proceeding by any Governmental Entity of competent jurisdiction seeking any of the consequences referred to in the immediately prior clause (i); (c) (A)(1) the representations and warranties of the Company set forth in Section 5.2 (Capitalization) shall be true and correct in all material respects; (2) the representations and warranties of the Company set forth in the first sentence of Section 5.1 (Organization and Qualification) or in Section 5.4 (Authority; Non-Contravention; Approval), Section 5.20 (Anti-Takeover Law Inapplicable), Section 5.23 (Advisors’ Fees), Section 5.27 (No Rights Agreement) or Section 5.28 (Rule 14d-10 Matters) that are qualified as to materiality or Material Adverse Effect shall be true and correct in all respects, and any such representations or warranties that are not so qualified shall be true and correct in all material respects; and (3) the representations and warranties of the Company set forth in this Agreement (other than those sections listed in the preceding clauses (1) and (2)) shall be true and correct, except in the case of this clause (3) to the extent that the facts or matters as to which such representations and warranties are not so true and correct (without giving effect to any limitation qualifications and limitations as to “materiality” or “Material Adverse Effect” set forth therein) at and as of the Closing Date, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date), except where the failure of that such representations qualifications and warranties to be so true and correct (without giving effect to any limitation limitations as to “materiality” or “Material Adverse Effect” set forth thereinwill be given effect in subsections (a)(ii), (b), and (d)(ii), and the first reference to the word “material” in the last sentence of subsection (c), of Section 5.5 (SEC Matters; Financial Statements), Section 5.6 (Disclosure Documents), Section 5.7 (Absence of Undisclosed Liabilities), Section 5.8 (Absence of Certain Changes or Events), Section 5.12 (Taxes), the first sentence of subsection (b) of Section 5.15 (Real Estate), the references to the word “material” in Section 5.16 (Properties), subsections (a)(vii), (a)(ix), (a)(x), (a)(xii), (b) and (d) of Section 5.18 (Contracts and Commitments; Suppliers and Customers), subsections (a), (b) and (c) of Section 5.19 (Intellectual Property Rights), subsections (a) and (o) of Section 5.21 (Government Contracts) and the first sentence of Section 5.26 (Insurance)), individually or in the aggregate has not hadaggregate, and would not reasonably be reasonably likely expected to have or result in, a Material Adverse Effect on the Company. Parent shall have received a certificate signed on behalf of the Company by Effect, in each of two senior executive officers of the Company case with respect to the foregoing effect; clauses (b1), (2) The and (3), as of the date hereof and at and as of the Closing Date, with the same effect as if made as of the Closing Date, except to the extent such representations and warranties address matters only as of another specified time (in which case on and as of such specified time, but without giving effect to the “as of the date hereof” reference in the preamble to Article 5), (B) the Company shall have performed or complied with in all material respects each of with its covenants and obligations under contained in this Agreement required to be performed or complied with by it at or prior to and (C) since the Closing Date pursuant to the terms date of this Agreement, and Parent shall have received a certificate signed on behalf of the Company by each of two senior executive officers of the Company to the foregoing effect; (c) There there shall not have occurred and there shall not exist any condition, occurrence, development, change, circumstance, fact, event or effect that, individually or in the aggregate, has had or would reasonably be pending any suit, action or proceeding, in each case, by any Governmental Entity seeking expected to (i) prohibit or limit in any material respect the ownership or operation by the Company, Parent or Merger Sub or any of their respective affiliates of have a substantial portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or to require any such Person to dispose of or hold separate any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, as a result of the Merger or any of the other transactions contemplated by this Agreement, or (ii) restrain, preclude, enjoin or prohibit the Merger or any of the other transactions contemplated by this AgreementMaterial Adverse Effect; and (d) Parent the Company shall have received delivered to Parent and Merger Sub a certificate of the opinion Company, executed by the chief executive officer and the chief financial officer of V▇▇▇▇▇ & E▇▇▇▇▇ L.L.P., counsel to Parent, in form and substance reasonably satisfactory to Parentthe Company, dated as of the Closing Date, rendered on the basis of facts, representations and assumptions set forth in such opinion and the certificates obtained from officers of Parent, Merger Sub and the Company, all of which are consistent with the state of facts existing as of the Effective Time, to the effect that the conditions set forth in clauses (iA) the Merger will qualify as a reorganization within the meaning and (B) of Section 368(a8.2(c) of the Code and (ii) the Company and Parent will each be a “party to the reorganization” within the meaning of Section 368 of the Code. In rendering the opinion described in this Section 6.3(d), V▇▇▇▇▇ & E▇▇▇▇▇ L.L.P. shall have received and may rely upon the certificates and representations referred to in Section 5.12(c) hereofbeen satisfied.

Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to effect the Merger are further shall be subject at the option of Parent and Merger Sub to the satisfaction fulfillment at or prior to the Effective Time of the following conditions: (a) the Company and each of the Company Shareholders shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date of each of Effective Time and the following conditions (any or all of which may be waived by Parent and Merger Sub in writing, in whole or in part, to the extent permitted by applicable Law): (a) The representations and warranties of the Company and the Company Shareholders set forth in this Agreement Article IV and IVA hereof, respectively, shall be true true, correct and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein) at and complete as of the Closing Date, Effective Time as if made at and as of such time (except to the extent expressly made other than representations or warranties that speak as of an earlier a particular date, in which case shall continue to be true, correct and complete as of such date), except where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein) individually or in the aggregate has not had, and would not be reasonably likely to have except as contemplated or result in, a Material Adverse Effect on permitted by this Agreement; and at the Company. Closing Parent and Merger Sub shall have received a certificate signed on behalf executed by the President of the Company by and each of two senior executive officers of the Company Shareholder executing a counterpart signature page to this Agreement to the foregoing effecteffects; (b) The no action, suit, claim, investigation or proceeding shall be pending or threatened against the Company shall or its properties and assets which, if adversely determined, could reasonably be expected to have performed a material adverse effect on the business, assets, condition (financial or complied with in all material respects each otherwise) or results of its obligations under this Agreement required to be performed or complied with by it at or prior to the Closing Date pursuant to the terms of this Agreement, and Parent shall have received a certificate signed on behalf operations of the Company by each of two senior executive officers of the Company to the foregoing effectCompany; (c) There At the Closing, there shall not be pending any suit, action or proceeding, in each case, by any Governmental Entity seeking delivered to (i) prohibit or limit in any material respect the ownership or operation by the Company, Parent or and Merger Sub or any the opinion of their respective affiliates of a substantial portion of the business or assets of Foley, Hoag & Eliot LLP, counsel for the Company and its Subsidiaries, taken as a whole, or to require any such Person to dispose of or hold separate any material portion of the business or assets of the Company Share▇▇▇▇▇rs, ▇▇ted ▇▇▇ Closing Date, in form and its Subsidiaries, taken substance satisfactory to Parent and Merger Sub and their counsel and substantially as a whole, as a result of the Merger or any of the other transactions contemplated by this Agreement, or (ii) restrain, preclude, enjoin or prohibit the Merger or any of the other transactions contemplated by this Agreement; andset forth in Exhibit E: (d) Parent shall have received the an unqualified written opinion of Vfrom Arthur Andersen, L.L.P., Parent's independent accountants, that both p▇▇▇▇▇▇ & ▇▇ ▇▇▇ ▇erger are poolable and that the Merger qualifies as a "pooling of interests" under generally accepted accounting principles. (e) the Company shall have received all Required Consents and all consents, authorizations or approvals from the governmental agencies, as well as all consents and waivers required under the Company's Restated Certificate of Incorporation in each case in form and substance satisfactory to Parent and Merger Sub and their counsel, and no such consent, authorization or approval shall have been withdrawn; (f) all corporate and other proceedings to be taken by the Company in connection with the transactions contemplated hereby and all documents incident thereto shall be satisfactory in form and substance to Parent and Merger Sub and their counsel, and Parent and Merger Sub and their counsel shall have received all such counterpart originals or certified or other copies of such documents as they reasonably may request; (g) At or prior to the Closing, Parent shall have received copies of the following documents: (A) the Restated Certificate of Incorporation of the Company and each subsidiary, certified as of a recent date by the Secretary of State of the State of Delaware or a similar official in its jurisdiction of incorporation and (B) a certificate of said Secretary dated as of a recent date as to the due incorporation and good standing of the Company and each subsidiary, and listing all documents of the Company and each subsidiary on file with said Secretary. (ii) A certificate of the Secretary of the Company dated the Closing Date and certifying: (A) that attached thereto is a true and complete copy of the By-laws of the Company and each subsidiary as in effect on the date of such certification; (B) that attached thereto is a true and complete copy of all resolutions adopted by the Board of Directors or the shareholders of the Company authorizing the execution, delivery and performance of this Agreement, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated by this Agreement; (C) that the Restated Certificate of Incorporation of the Company has not been amended since the date of the last amendment referred to in the certificate delivered pursuant to clause (i)(B) above; and (D) as to the incumbency and specimen signature of each officer of the Company executing this Agreement, and any certificate or instrument furnished pursuant hereto, and a certification by another officer of the Company as to the incumbency and signature of the officer signing the certificate referred to in this clause (ii). (iii) Such additional supporting documents and other information with respect to the operations and affairs of the Company as Parent and Merger Sub or their counsel reasonably may request. (h) Parent shall be satisfied, in its sole discretion after consultation with its counsel, that the issuance of Parent Common Stock hereunder shall have been conducted in compliance with Regulation D of the Securities Act; (i) The Company shall have furnished Parent with a true and complete copy of the audited balance sheets of the Company as of December 31, 1996 and December 31, 1997 and the audited statements of operations, shareholders' equity and cash flows for the twelve months ended December 31, 1996 and December 31, 1997 . (j) The Company shall have delivered to Parent a properly executed statement satisfying the requirements of Treasury Regulation Sections 1.897-2(h) and 1.1445-2(c)(3) in a form reasonably acceptable to Parent; (k) No material adverse change in the business, assets, condition (financial or otherwise) or results of operations of the Company or any subsidiary shall have occurred since the date of this Agreement. (l) Holders of Outstanding Company Shares representing at least ninety-five percent (95%) of the voting power of Company Shares entitled to approve the Merger and the form of this Agreement shall have executed and delivered the Company's Shareholders' Consent in favor of the transactions contemplated herein. (m) Each of Mark Galvin, Reed Simpson and Steve Nickerson shall have executed an E▇▇▇▇▇▇▇ L.L.P.▇▇▇-D▇▇▇▇▇▇▇▇▇, counsel ▇nvent▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇t Not to Parent, Compete Agreement in substantially the form and substance reasonably satisfactory of Exhibit F. (n) With respect to Parent, dated the Closing Date, rendered on the basis of facts, representations and assumptions set forth in such opinion and the certificates obtained from officers of Parent, Merger Sub and the Company, all of which are consistent with the state of facts existing as of the Effective Time, to the effect payments that would constitute "excess parachute payments" (i) the Merger will qualify as a reorganization within the meaning of Section 368(a280G of the Code) but for the exceptions set forth in Sections 280G(b)(4) and 280G(b)(5) of the Code, the Company shall obtain the shareholder approval described in Section 280G(b)(5)(B) of the Code so that such payments will not be nondeductible under Section 280G of the Code and (ii) the Company and Parent will each not be a “party subject to the reorganization” within the meaning of tax imposed under Section 368 4999 of the Code. In rendering the opinion described in this Section 6.3(d), V▇▇▇▇▇ & E▇▇▇▇▇ L.L.P. shall have received and may rely upon the certificates and representations referred to in Section 5.12(c) hereof.

Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to effect the Merger are further subject to the satisfaction on or waiver at or prior to the Closing Date of each Closing, of the following conditions (any or all of which may be waived by Parent and Merger Sub in writing, in whole or in part, to the extent permitted by applicable Law):conditions: (a) (i) The representations and warranties of the Company set forth contained in this Agreement and in any certificate or other writing delivered by the Company pursuant hereto that are qualified by materiality or Material Adverse Effect shall be true and correct (without giving effect to any limitation in all respects both as to “materiality” or “Material Adverse Effect” set forth therein) at of the date of this Agreement and as of the Closing Date, Date as if though made at on and as of such time the Closing Date (except to the extent such representations and warranties expressly made as of relate to an earlier date, in which case as of such date), except where the failure of such representations and warranties to shall be so true and correct in all respects on and as of such earlier date) and (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth thereinii) individually or in the aggregate has not had, representations and would not be reasonably likely to have or result in, a Material Adverse Effect on the Company. Parent shall have received a certificate signed on behalf warranties of the Company in this Agreement and in any certificate or other writing delivered by each of two senior executive officers the Company pursuant hereto that are not so qualified shall be true and correct in all material respects both as of the Company date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the foregoing effectextent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects on and as of such earlier date); (b) The Company shall have performed or complied with in all material respects each of its all obligations under this Agreement required to be performed or complied with by it under this Agreement at or prior to the Closing Date pursuant Date; (c) The Company shall have delivered to Parent a certificate, signed by the chief executive officer and chief financial officer of the Company, to the terms effect that each of the conditions specified in (a) and (b) above is satisfied; (d) Parent shall have received a written opinion from Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to Parent, dated as of the Closing Date, to the effect that the Merger will qualify as a reorganization under Section 368(a) of the Code. Such counsel shall be entitled to rely upon representation letters from each of the Company, Parent, Merger Sub and others, in each case, in form and substance reasonably satisfactory to such counsel. Each such representation letter shall be dated as of the date of such opinion. The opinion condition referred to in this AgreementSection 6.2(d) shall not be waivable after receipt of the Parent Stockholder Approval, unless further approval of the stockholders of Parent is obtained with appropriate disclosure; (e) The total number of Dissenting Shares shall not exceed 10% of the issued and outstanding shares of Company Common Stock as of the Effective Time, and Parent shall have received a certificate to such effect signed on behalf by the chief executive officer and chief financial officer of the Company by each of two senior executive officers of the Company to the foregoing effectCompany; (cf) There shall not be pending any suit, action or proceeding, in each case, proceeding by any Governmental Entity seeking to (i) prohibit or limit in impose any material respect limitations on Parent’s ownership of the ownership Company or the operation by of all or a material portion of Parent’s or the Company’s businesses or assets (whether held directly or through Subsidiaries), or to compel Parent or Merger Sub the Company or any of their respective affiliates of a substantial portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or to require any such Person Subsidiaries to dispose of or hold separate any material portion of the business or assets of Parent or the Company and its (whether held directly or through Subsidiaries) in any such case which is reasonably likely to have a Parent Material Adverse Effect (determined, taken as for purposes of this clause, after giving effect to the Merger) or a whole, as a result of the Merger or any of the other transactions contemplated by this Agreement, or (ii) restrain, preclude, enjoin or prohibit the Merger or any of the other transactions contemplated by this AgreementCompany Material Adverse Effect; and (dg) Parent Since the date of this Agreement there shall not have received been any occurrence, event, change, effect or development that, individually or in the opinion of V▇▇▇▇▇ & E▇▇▇▇▇ L.L.P.aggregate, counsel has had or is reasonably expected to Parent, in form and substance reasonably satisfactory to Parent, dated the Closing Date, rendered on the basis of facts, representations and assumptions set forth in such opinion and the certificates obtained from officers of Parent, Merger Sub and the Company, all of which are consistent with the state of facts existing as of the Effective Time, to the effect that (i) the Merger will qualify as have a reorganization within the meaning of Section 368(a) of the Code and (ii) the Company and Parent will each be a “party to the reorganization” within the meaning of Section 368 of the Code. In rendering the opinion described in this Section 6.3(d), V▇▇▇▇▇ & E▇▇▇▇▇ L.L.P. shall have received and may rely upon the certificates and representations referred to in Section 5.12(c) hereofMaterial Adverse Effect.

Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to effect the Merger are further subject to the satisfaction on (or prior to the Closing Date of each waiver by Parent in its sole discretion) of the following conditions (any or all of which may be waived by Parent and Merger Sub in writing, in whole or in part, to the extent permitted by applicable Law):further conditions: (a) The representations and warranties of the Company set forth in this Agreement that are qualified by materiality (considered collectively and individually) shall have been true and correct at and as of the date hereof and shall be true and correct (without giving effect to any limitation at and as to “materiality” or “Material Adverse Effect” set forth therein) of the Closing Date as if made at and as of the Closing Date, and the representations and warranties that are not so qualified (considered collectively and individually) shall have been true and correct in all material respects at and as of the date hereof and shall be true and correct in all material respects at and as of the Closing Date as if made at and as of such time (the Closing Date, except to the extent expressly made as of that such representations and warranties refer specifically to an earlier date, in which case as of such date), except where the failure of such representations and warranties to be so shall have been true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein) individually or in the aggregate has not hadof such earlier date, and would not Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the President of the Company to such effect. (b) The Company shall have performed in all material respects all obligations required to be reasonably likely performed by it under this Agreement at or prior to the Closing Date; provided that, with respect to obligations that are qualified by materiality, the Company shall have or result inperformed such obligations, a Material Adverse Effect on the Companyas so qualified, in all respects. Parent shall have received a certificate signed on behalf of the Company by each of two senior executive officers the President of the Company to the foregoing such effect; (b) The Company shall have performed or complied with in all material respects each of its obligations under this Agreement required to be performed or complied with by it at or prior to the Closing Date pursuant to the terms of this Agreement, and Parent shall have received a certificate signed on behalf of the Company by each of two senior executive officers of the Company to the foregoing effect;. (c) There shall not have occurred any event, occurrence or change that has had, or would reasonably be expected to have, a Company Material Adverse Effect, which shall include, without limitation, that the Company’s auditors have indicated that their audit report relating to the Company’s most recently completed fiscal year must be qualified to reflect that there is doubt that the Company can continue as a “going concern.” (d) No Action shall be pending or threatened before any suit, action court or proceedingother Governmental Entity, in each casecase that has a reasonable likelihood of success, by any Governmental Entity seeking to (i) prohibit seeking to prevent consummation of the Merger or limit seeking to obtain from the Company or Parent damages that are material in relation to the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, as the case may be, (ii) seeking to impose any material respect limitation on the right of Parent to control the Company and its Subsidiaries or any other Affiliate of Parent, (iii) seeking to restrain or prohibit the Company’s or Parent’s ownership or operation by the Company, Parent (or Merger Sub or any that of their respective affiliates Subsidiaries or Affiliates) of a substantial any portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or of Parent and its Subsidiaries, taken as a whole, or to require compel the Company or Parent or any such Person of their respective Subsidiaries or Affiliates to dispose of or hold separate any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or of Parent and its Subsidiaries, taken as a result of whole, and if such business or assets relate to the Merger Company or any of its Subsidiaries, such business or assets are material to the other transactions contemplated by this Agreementfinancial condition, results of operations or (ii) restrainprospects of the Company and its Subsidiaries, precludetaken as a whole, enjoin and if such business or prohibit the Merger assets relate to Parent or any of its Subsidiaries, such business or assets are material to the other transactions contemplated by financial condition, results of operations or prospects of Parent and its Subsidiaries, taken as a whole. No Order shall be in effect, and no Law shall have been enacted or shall be deemed applicable to the Merger, which has any of the effects set forth in clauses (i) through (iii) in this Agreement; andSection 8.2(d). (de) Parent The Company shall have received obtained the opinion Consent of V▇▇▇▇▇ & E▇▇▇▇▇ L.L.P., counsel to Parent, each Person whose Consent is required under the Material Contracts set forth in the Company Disclosure Schedule and shall have provided evidence of each such Consent in form and substance reasonably satisfactory to Parent. (f) The Company shall have delivered to Parent resignations from the directors of the Company and each Subsidiary of the Company holding such position immediately prior to the Effective Time. (g) The Company shall have delivered to Parent satisfactory evidence of the cancellation of all of the Company Stock Options and Other Purchase Rights and the termination of all Company Stock Option Plans. (h) The Company shall have delivered to Parent certificates of good standing for the Company from the Secretary of State of the State of Delaware and New Jersey, each dated a reasonable date prior to the Closing Date, rendered and certificates of good standing for the Subsidiaries of the Company from the Secretary of State of the State of Delaware. (i) Each of the executive officers and directors of the Company shall have delivered a Voting Agreement on the basis date hereof and shall have complied with and not be in breach of factstheir respective obligations under the Voting Agreement and all of the Company Common Stock subject to a Voting Agreement shall have been voted in favor of the approval and adoption of this Agreement and the Merger (which vote shall not have been revoked). (j) The Company shall have delivered to Parent and Merger Sub (i) a certificate dated as of the date of Closing, representations signed on its behalf by its chief executive officer and assumptions set forth its chief financial officer to the effect that the obligations under Section 8.2(a) through (e) and (g) of this Agreement have been satisfied and (ii) copies of all documents that Parent may reasonably request relating to the existence of the Company and certified copies of resolutions or written consents duly adopted by the Board of Directors of the Company and any of its Subsidiaries evidencing the taking of all corporate action necessary to authorize the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby, all in such opinion reasonable detail as Parent and its counsel may request. (k) The number of shares of Company Common Stock held by holders demanding appraisal rights pursuant to the certificates obtained from officers provisions of Parent, Merger Sub and Section 262 of the Company, all DGCL shall represent not more than ten percent (10%) of which are consistent with the state of facts existing outstanding Company Common Stock as of the Effective Time, to the effect that Date. (il) the Merger will qualify as a reorganization within the meaning The Company not accepting any buy out of Section 368(aroyalties from Progenics without prior consultation with Parent. (m) of the Code and (ii) the The Company and Parent will each be a “party to the reorganization” within the meaning of Section 368 of the Code. In rendering the opinion described in this Section 6.3(d), V▇▇▇▇▇ & E▇▇▇▇▇ L.L.P. shall have received filed its Annual Report on Form 10-K with the Securities and may rely upon Exchange Commission, including audited financial statements for the certificates and representations referred to in Section 5.12(c) hereofyear ended December 31, 2007, no later than March 17, 2008.

Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to effect the Merger are further subject to the satisfaction on (or prior to the Closing Date of each waiver by Parent in its sole discretion) of the following conditions (any or all of which may be waived by Parent and Merger Sub in writing, in whole or in part, to the extent permitted by applicable Law):conditions: (a) No temporary restraining order, preliminary or permanent injunction or other Order preventing the consummation of the Acquisition shall be in effect. No Law shall have been enacted or shall be deemed applicable to the Merger which makes the consummation of the Merger illegal. (b) The representations and warranties of the Company set forth in this Agreement shall have been true and correct at and as of the date hereof and shall be true and correct (without giving effect to any limitation at and as to “materiality” or “Material Adverse Effect” set forth therein) of the Closing Date as if made at and as of the Closing Date, as if made at and as of such time (except to the extent expressly made as of that such representations and warranties refer specifically to an earlier date, in which case as of such date), except where the failure of such representations and warranties to be so shall have been true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein) individually or in the aggregate has not hadof such earlier date, and would not be reasonably likely to have or result in, a Material Adverse Effect on the Company. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by each of two senior executive officers the President of the Company to the foregoing such effect;. (bc) The Company shall have performed or complied with in all material respects each of its obligations under this Agreement required to be performed or complied with by it under this Agreement at or prior to the Closing Date pursuant to the terms of this AgreementDate, and Parent shall have received a certificate signed on behalf of the Company by each of two senior executive officers the President of the Company to the foregoing such effect;. (cd) There shall not have occurred any event, occurrence or change that has had, or could reasonably be expected to have, individually or in the aggregate, a material adverse effect on the Company and its Subsidiaries taken as a whole. (e) No Action shall be pending or threatened before any suit, action court or proceeding, in each case, by any other Governmental Entity seeking to or before any other Person wherein an unfavorable Order would (i) prevent consummation of the Merger, (ii) affect adversely the right of Parent to control the Company and the Subsidiaries of the Company or (iii) restrain or prohibit or limit in any material respect the Parent’s ownership or operation by the Company, Parent (or Merger Sub that of its Subsidiaries or Affiliates) of all or any of their respective affiliates of a substantial material portion of the business or assets of the Company Surviving Corporation and its Subsidiaries, taken as a whole, or to require compel Parent or any such Person of its Subsidiaries or Affiliates to dispose of or hold separate all or any material portion of the business or assets of the Company Surviving Corporation and its Subsidiaries, taken as a whole, or of Parent and its Subsidiaries, taken as a result of whole. No such Order shall be in effect. (f) No Law shall have been enacted or shall be deemed applicable to the Merger or which has any of the other transactions contemplated by this Agreementeffects set forth in clauses (i) through (iii) in Section 7.2(e). (g) The holders of not more than twelve percent (12%) of the Company Common Stock shall have demanded and not lost or withdrawn, or (ii) restrainshall be eligible to demand, preclude, enjoin or prohibit the Merger or any of the other transactions contemplated by this Agreement; andappraisal rights. (dh) The Company shall have obtained the Consent of each Person whose Consent is required under the Contracts set forth in Schedule 7.1(h) and shall have provided evidence of each such Consent in form and substance satisfactory to Parent. (i) Parent and Merger Sub shall have received the a written opinion of Vfrom ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & E▇▇▇▇▇ L.L.P.▇, counsel to Parentthe Company, addressed to Parent and Sub, dated as of the Closing Date, in the form attached as Exhibit E hereto. (j) The Toronto Stock Exchange shall have accepted notice of the Merger and conditionally approved the listing of the shares of common stock of Tucows comprising the Common Stock Merger Consideration. (k) Parent and Merger Sub shall have received option cancellation and waiver agreements from each Optionholder in form and substance reasonably satisfactory to Parent, dated the Closing Date, rendered on the basis of facts, representations and assumptions set forth in such opinion and the certificates obtained from officers of Parent, Merger Sub and the Company, all of which are consistent with the state of facts existing as of the Effective Time, to the effect that (i) the Merger will qualify as a reorganization within the meaning of Section 368(a) of the Code and (ii) the Company and Parent will each be a “party to the reorganization” within the meaning of Section 368 of the Code. In rendering the opinion described in this Section 6.3(d), V▇▇▇▇▇ & E▇▇▇▇▇ L.L.P. shall have received and may rely upon the certificates and representations referred to in Section 5.12(c) hereof.

Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to effect the Merger are further subject to the satisfaction on or waiver at or prior to the Closing Date of each Effective Time of the following conditions (any or all of which may be waived by Parent and Merger Sub in writing, in whole or in part, to the extent permitted by applicable Law):conditions: (a) (i) The representations and warranties of the Company set forth in Section 3.1, Section 3.2 and Section 3.3 shall be true and correct both at and as of the date of this Agreement and at and as of the Closing Date, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date); and (ii) the representations and warranties of the Company set forth in this Agreement (other than the representations and warranties set forth in Section 3.1, Section 3.2 and Section 3.3) shall be true and correct (without giving effect to any limitation as to “materiality” materiality or “Material Adverse Effect” Effect set forth therein) both at and as of the date of this Agreement and at and as of the Closing Date, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date), except where in the failure case of this clause (ii) for any failures of such representations and warranties to be so true and correct (without giving effect to any limitation as to “materiality” materiality or “Material Adverse Effect” Effect set forth therein) that, individually or in the aggregate has aggregate, have not had, and would not be reasonably likely to have or result inhave, a Material Adverse Effect on the Company. ; (b) The Company shall have performed in all material respects each of its material covenants and obligations under this Agreement required to be performed by it at or prior to the Effective Time pursuant to the terms of this Agreement; (c) Parent shall have received a certificate signed on behalf of the Company by each of two senior executive officers the Chief Executive Officer and Chief Financial Officer of the Company to the foregoing effecteffect that the conditions in clauses (a) and (b) above have been so satisfied; (bd) The Company shall have performed or complied with in all material respects each From the date of its obligations under this Agreement required to be performed through the Effective Time, there shall not have occurred any events, circumstances or complied with by it at developments that, individually or prior to in the Closing Date pursuant to aggregate, have had a Material Adverse Effect on the terms of this Agreement, and Parent shall have received a certificate signed on behalf of the Company by each of two senior executive officers of the Company to the foregoing effectCompany; (c) There shall not be pending any suit, action or proceeding, in each case, by any Governmental Entity seeking to (i) prohibit or limit in any material respect the ownership or operation by the Company, Parent or Merger Sub or any of their respective affiliates of a substantial portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or to require any such Person to dispose of or hold separate any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, as a result of the Merger or any of the other transactions contemplated by this Agreement, or (ii) restrain, preclude, enjoin or prohibit the Merger or any of the other transactions contemplated by this Agreement; and (de) Parent shall have received the opinion of V▇▇▇▇▇▇▇ & E▇▇▇▇▇ L.L.P., counsel to Parent, in form and substance reasonably satisfactory to Parent, dated the Closing Date, rendered on the basis of facts, representations and assumptions set forth in such opinion and the certificates obtained from officers of Parent, Merger Sub and the Company, all of which are consistent with the state of facts existing as of the Effective Time, to the effect that (i) the Merger will qualify as a reorganization within the meaning of Section 368(a) of the Code and (ii) the Company and Parent will each be a “party to the reorganization” within the meaning of Section 368 of the Code. In rendering the opinion described in this Section 6.3(d6.3(e), V▇▇▇▇▇▇▇ & E▇▇▇▇▇ L.L.P. shall have received and may rely upon the certificates and representations referred to in Section 5.12(c5.13(c) hereof.. After the Company Required Vote, Parent shall not waive receipt of a tax opinion from ▇▇▇▇▇▇▇ ▇▇▇▇ as a condition to Closing unless further approval of the shareholders of the Company is obtained with appropriate disclosure;

Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to effect the Merger are further subject to the satisfaction on or prior to the Closing Date of each of the following conditions (any or all of which may be waived by Parent and Merger Sub in writing, in whole or in part, to the extent permitted part by applicable LawParent): (a) The representations and warranties of the Company set forth in this Agreement that are qualified by materiality shall be true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” in all respects, and the representations and warranties of the Company set forth therein) at in this Agreement that are not so qualified shall be true and correct in all material respects, in each case, as of the date of this Agreement and as of the Closing Date, Date as if though made at and on or as of such time date (except to or, in the extent expressly made case of representations and warranties that address matters only as of an earlier a particular date, in which case as of such date), except where the failure of such representations and warranties to be so true Parent and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein) individually or in the aggregate has not had, and would not be reasonably likely to have or result in, a Material Adverse Effect on the Company. Parent Merger Sub shall have received a certificate to such effect signed on behalf of the Company by each of two senior its chief executive officers of the Company to the foregoing effect;officer and chief financial officer. (b) The Company shall have performed or complied with in with, as applicable, all material respects each of its obligations under obligations, agreements and covenants required by this Agreement required to be performed or complied with by it at (including the Company not having entered into any definitive agreement or prior any agreement in principle with any person with respect to a Takeover Proposal or similar business combination with the Closing Date pursuant to the terms Company in violation of this AgreementSection 5.2), and Parent and Merger Sub shall have received a certificate to such effect signed on behalf of the Company by each of two senior its chief executive officers of the Company to the foregoing effect;officer and chief financial officer. (c) There No statute, rule, regulation, judgment, order or injunction shall not be pending any suithave been promulgated, action entered, enforced, enacted, issued or proceeding, in each case, applicable to the Merger by any Governmental Entity seeking to which (i1) prohibit prohibits, or limit in imposes any material respect the ownership limitations on, Parent’s or operation by the Company, Parent its subsidiaries’ (or Merger Sub Sub’s) or affiliates’ ownership (or which imposes any limitations that would materially affect its or their operation) of any portion of their respective affiliates businesses or assets, (2) imposes any requirement to divest, hold separate or otherwise dispose of a substantial any portion of their respective businesses or assets, (3) prohibits or imposes any limitation on its or their ability to effect the business Merger, or assets the ability of the Company and (or Merger Sub) or its Subsidiaries, taken as a whole, or their respective subsidiaries to require any such Person to dispose of acquire or hold separate or exercise full rights of ownership of any capital stock of any material portion of the business or assets subsidiary of the Company or (4) imposes limitations on its or their ability to effectively control their respective businesses or any limitation which would materially affect its or their ability to control their respective operations, and its Subsidiaries, taken as a whole, as a result of the Merger no action or proceeding by any Governmental Entity shall be pending which seeks any of the other transactions contemplated by this Agreement, or results described in clauses (ii1) restrain, preclude, enjoin or prohibit the Merger or any of the other transactions contemplated by this Agreement; andthrough (4). (d) Parent shall have received the opinion of V▇▇▇▇▇▇, ▇▇▇▇▇▇ & E▇▇▇▇▇ L.L.P.LLP, counsel to Parent, in form or the opinion of other tax counsel of a prominent law firm designated by Parent and substance reasonably satisfactory acceptable to Parentthe Company, dated the Closing Date, rendered based on the basis appropriate representations of facts, representations and assumptions set forth in such opinion and the certificates obtained from officers of Parent, Merger Sub and the Company, all of which are consistent with the state of facts existing its affiliates, and Parent, and such other facts, representations, assumptions, and agreements as of the Effective Timecounsel may reasonably deem relevant, to the effect that (i) for United States Federal income tax purposes the Merger will qualify as a reorganization within the meaning of Section 368(a) 368 of the Code and (ii) that each of Parent, the direct owner of Merger Sub and the Company and Parent will each be a “party to the reorganization” reorganization within the meaning of Section 368 368(b) of the Code. In rendering . (e) The holders of Company Stock Options and Company RSUs shall, at the opinion described in this Section 6.3(d)Effective Time, V▇▇▇▇▇ & E▇▇▇▇▇ L.L.P. shall no longer have received and may rely upon the certificates and representations referred right to in Section 5.12(c) hereofacquire any shares of Company Common Stock or any other equity securities of the Company or any of its subsidiaries.

Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The Unless waived by Parent and Merger Sub, the obligations of Parent and Merger Sub to effect the Merger are further shall be subject to the satisfaction fulfillment at or prior to the Effective Time of the additional following conditions: (a) the Company shall have performed in all material respects (or in all respects in the case of any agreement containing any materiality qualification) its agreements contained in this Agreement required to be performed on or prior to the Closing Date of each of the following conditions (any or all of which may be waived by Parent and Merger Sub in writing, in whole or in part, to the extent permitted by applicable Law):Date; (ab) The the representations and warranties of the Company set forth contained in this Agreement shall be true and correct in all material respects (without giving effect to or in all respects in the case of any limitation representation or warranty containing any materiality qualification) on and as to “materiality” or “Material Adverse Effect” set forth therein) at of the date made and on and as of the Closing Date, Date as if made at and as of such time date; (except to c) since the extent expressly made as of an earlier datedate hereof, in which case as of such date), except where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein) individually or in the aggregate has not hadthere shall have been no changes that constitute, and would not be reasonably likely to no event or events shall have occurred which have resulted in or result inconstitute, a Material Adverse Effect 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 the 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) all transactions, contracts, agreements and guarantees between the Company and any Shareholder or any Affiliate of the Company or any Shareholder shall have been terminated and all amounts owed by the Shareholders and their Affiliates to the Company shall have been paid in full; (g) the Company shall have distributed the building and real property located at 315 ▇▇▇▇▇ ▇▇▇▇, Mocksville, North Carolina to Grac▇ ▇▇▇▇▇▇, ▇▇ac▇ ▇▇▇▇▇▇ ▇▇▇ll have assumed all indebtedness with respect thereto and the Company shall have entered into new long-term real property leases with respect to such facility and any real property and other properties owned by any Shareholder or any of their Affiliates and used in the business of the Company in form and upon terms satisfactory to Parent; provided, however, in no event shall such lease payments under such leases exceed the aggregate amount paid for such properties under current leases; (h) the Company shall have minimum tangible net worth at Closing shall be $2,450,000. (i) the officers and directors of the Company shall deliver to Parent an instrument dated the Closing Date releasing the Company from any and all claims of such officers and directors (except as to accrued compensation prior to the Closing Date in accordance with the terms of the Agreement); (j) Parent shall have completed its due diligence review regarding the Company and its business, operations, assets, liabilities, taxes, insurance, contracts, prospects and environmental and other matters as Parent deems relevant and Parent shall not have discussed any condition with respect to such matters materially and adversely different from the representations and warranties in Article V hereof; (k) the Board of Directors of Parent shall approve this Agreement and the closing of the transactions contemplated herein; (l) Parent shall have received a legal opinion from Womb▇▇ ▇▇▇l▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇ice, ▇▇LC, in form reasonably satisfactory to Parent; (m) Grac▇ ▇. ▇▇▇▇▇▇ ▇▇▇ll have entered into a Consulting Agreement in the form attached hereto as Exhibit B, and a Covenant Not to Compete Agreement in the form attached hereto as Exhibit C. Grac▇ ▇. ▇▇▇▇▇▇'▇ ▇▇▇sulting Agreement shall be for an initial term of two years and require full time involvement for the six month period after Closing with annual compensation of $120,000 during the first year and $100,000 during the second year. (n) Denn▇▇ ▇▇▇▇▇▇ ▇▇▇ll have entered into a Covenant Not to Compete Agreement in the form attached hereto as Exhibit D; (o) Grac▇ ▇▇▇▇▇▇ ▇▇▇ll have purchased the Winnebago RV for the Company. 's book value and shall have assumed all debt and lease obligations with respect to such Winnebago RV and the Jaguar automobile lease; and (p) Parent shall have received a certificate signed executed on behalf of the Company by each of two senior executive officers of the Company to the foregoing effect; (b) The Company shall have performed President or complied with in all material respects each of its obligations under this Agreement required to be performed or complied with by it at or prior to the Closing Date pursuant to the terms of this Agreement, and Parent shall have received a certificate signed on behalf of the Company by each of two senior executive officers of the Company to the foregoing effect; (c) There shall not be pending any suit, action or proceeding, in each case, by any Governmental Entity seeking to (i) prohibit or limit in any material respect the ownership or operation by the Company, Parent or Merger Sub or any of their respective affiliates of a substantial portion of the business or assets Chief Executive Officer of the Company and its Subsidiaries, taken as a whole, or to require any such Person to dispose of or hold separate any material portion each of the business or assets of the Company and its Subsidiaries, taken as a whole, as a result of the Merger or any of the other transactions contemplated by this Agreement, or Shareholders with respect to (iia) restrain, preclude, enjoin or prohibit the Merger or any of the other transactions contemplated by this Agreement; and through (dh) Parent shall have received the opinion of V▇▇▇▇▇ & E▇▇▇▇▇ L.L.P., counsel to Parent, in form and substance reasonably satisfactory to Parent, dated the Closing Date, rendered on the basis of facts, representations and assumptions set forth in such opinion and the certificates obtained from officers of Parent, Merger Sub and the Company, all of which are consistent with the state of facts existing as of the Effective Time, to the effect that (i) the Merger will qualify as a reorganization within the meaning of Section 368(a) of the Code and (ii) the Company and Parent will each be a “party to the reorganization” within the meaning of Section 368 of the Code. In rendering the opinion described in this Section 6.3(d), V▇▇▇▇▇ & E▇▇▇▇▇ L.L.P. shall have received and may rely upon the certificates and representations referred to in Section 5.12(c) hereofabove.

Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The Unless waived by Parent and Merger Sub, the obligations of Parent and Merger Sub to effect the Merger are further shall be subject to the satisfaction fulfillment at or prior to the Effective Time of the additional following conditions: (a) the Company shall have performed in all material respects (or in all respects in the case of any agreement containing any materiality qualification) its agreements contained in this Agreement required to be performed on or prior to the Closing Date of each of the following conditions (any or all of which may be waived by Parent and Merger Sub in writing, in whole or in part, to the extent permitted by applicable Law):Date; (ab) The the representations and warranties of the Company set forth contained in this Agreement shall be true and correct in all material respects (without giving effect to or in all respects in the case of any limitation representation or warranty containing any materiality qualification) on and as to “materiality” or “Material Adverse Effect” set forth therein) at of the date made and on and as of the Closing Date, Date as if made at and as of such time date; (except to c) since the extent expressly made as of an earlier datedate hereof, in which case as of such date), except where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein) individually or in the aggregate has not hadthere shall have been no changes that constitute, and would not be reasonably likely to no event or events shall have occurred which have resulted in or result inconstitute, a Material Adverse Effect 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 the transactions contemplated hereby or to permit Parent to carry on the Company. 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) all transactions, contracts, agreements and guarantees between the Company and any Shareholder or any Affiliate of the Company or any Shareholder shall have been terminated and all amounts owed by the Shareholders and their Affiliates to the Company shall have been paid in full; (g) the Company shall have entered into new real property leases with respect to properties owned by the Shareholders, or any Affiliates of the Shareholders, in form attached hereto as EXHIBIT D; PROVIDED, HOWEVER, in no event shall such lease payments under such leases exceed the aggregate amount paid for such properties under current leases; (h) the Company shall have terminated its tax-qualified 401(k) plan; (i) the board of directors and Shareholders of the Company shall approve this Agreement and the closing of the transactions contemplated herein; (j) the board of directors of Parent shall approve this Agreement and the closing of the transactions contemplated herein; (k) Parent shall have completed its due diligence review regarding the Company and its business, finances, operations, assets, liabilities, taxes, insurance, contracts, prospects and environmental and other matters as Parent deems relevant and Parent shall be satisfied, in its sole discretion, with the results of such review; (l) Parent shall have received a certificate signed on behalf certificate, dated within ten (10) days of the Company by each of two senior executive officers Closing Date, of the Secretary of the State of North Carolina establishing that the Company is in existence and is in good standing to transact business in the foregoing effectstate of incorporation; (b) The Company shall have performed or complied with in all material respects each of its obligations under this Agreement required to be performed or complied with by it at or prior to the Closing Date pursuant to the terms of this Agreement, and Parent shall have received a certificate signed on behalf of the Company by each of two senior executive officers of the Company to the foregoing effect; (c) There shall not be pending any suit, action or proceeding, in each case, by any Governmental Entity seeking to (i) prohibit or limit in any material respect the ownership or operation by the Company, Parent or Merger Sub or any of their respective affiliates of a substantial portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or to require any such Person to dispose of or hold separate any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, as a result of the Merger or any of the other transactions contemplated by this Agreement, or (ii) restrain, preclude, enjoin or prohibit the Merger or any of the other transactions contemplated by this Agreement; and (dm) Parent shall have received the opinion resignations of V▇▇▇▇▇ & E▇▇▇▇▇ L.L.P., counsel to Parent, in form the directors and substance reasonably satisfactory to Parent, dated the Closing Date, rendered on the basis of facts, representations and assumptions set forth in such opinion and the certificates obtained from officers of Parent, Merger Sub and the Company, all of which are consistent with the state of facts existing as of the Effective Time, to the effect that ; and (in) the Merger will qualify as a reorganization within the meaning of Section 368(a) of the Code and (ii) the Company and Parent will each be a “party to the reorganization” within the meaning of Section 368 of the Code. In rendering the opinion described in this Section 6.3(d), V▇▇▇▇▇ & E▇▇▇▇▇ L.L.P. shall have received and may rely upon a legal opinion from Bell, Davis & Pitt, P.A., in the certificates and representations referred to in Section 5.12(c) hereof.form attached hereto as EXHIBIT E;