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

Conditions to the Obligations of Buyer and Merger Sub. The obligations of Buyer and Merger Sub to consummate, or cause to be consummated, the Merger are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by Buyer and Merger Sub: (a) Each of the representations and warranties of the Company contained in Article IV, disregarding all qualifications contained herein relating to materiality or Material Adverse Effect, shall be true and correct in all respects as of the date hereof and as of the Closing Date, as if made anew at and as of that date, except with respect to representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for (i) any inaccuracy or omission that would not reasonably be expected to have a Material Adverse Effect, (ii) notwithstanding Section 9.2(a)(i), (A) the Fundamental Representations, shall be true and correct in all respects except for such inaccuracies which are de minimis, individually or in the aggregate and (B) the representations and warranties contained in Section 4.11 and Section 4.20 shall be true and correct in all material respects. (b) Each of the covenants of the Company to be performed at or prior to the Closing shall have been performed in all material respects. (c) The Company shall have delivered to Buyer a certificate signed by an officer of the Company, dated as of the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.2(a) and Section 9.2(b) have been fulfilled. (d) The Company shall have delivered to Buyer a certificate in accordance with the requirements of Treasury Regulation Sections 1.897-2(h) and 1.1445-2(c)(3) dated within thirty (30) days prior to the Closing Date certifying that the Company is not a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code along with written authorization for Buyer to deliver such notice form to the IRS on behalf of the Company upon Closing. (e) There shall not have occurred since the Company Balance Sheet Date any Material Adverse Effect nor shall events have occurred that, individually or in the aggregate, would reasonably be expected to result in a Material Adverse Effect. (f) The Required Third Party Consents shall have been obtained in form and substance reasonably satisfactory to Buyer. (g) The Restructuring shall have been completed pursuant to the Restructuring Step Plan. (h) The Company shall have delivered to Buyer the Second Amended and Restated License Agreements executed by each of TeneoTwo, TeneoFour and TeneoTen and such Second Amended and Restated License Agreements shall not have been terminated and shall be in full force and effect. (i) No less than three (3) days prior to the Closing Date, the Company will have obtained and delivered to Buyer true, correct and complete copies of Written Consents executed by Company Stockholders representing (a) ninety percent (90%) of the votes represented by all outstanding shares of Company Capital Stock voting together as a single class on an as-converted basis and (b) each Pre-Closing Holder who owns in excess of five percent (5%) of the outstanding Company Capital Stock on a fully diluted basis (the “Requisite Stockholder Approval”) and such Requisite Stockholder Approval shall have been validly obtained and be in full force and effect at the Closing. (j) Evidence satisfactory to Buyer that each Company Benefit Plan intended to be qualified under Section 401(k) of the Code has been terminated effective as of the day immediately prior to the Closing pursuant to resolutions duly adopted by the board of directors of the Company sponsoring such Company Benefit Plan(s). (k) If a 280G Vote is required to be undertaken under Section 7.3(d) hereof, (i) the Company shall have solicited from each Person who is eligible to receive a payment that may constitute a “parachute payment” under Section 280G of the Code prior to soliciting the Section 280G Approval and, to the extent received by the Company, delivered to Buyer each signed Parachute Payment Waiver and (ii) to the extent any Parachute Payment Waivers are executed, the Company’s shareholders shall have (A) approved, pursuant to the method provided for in the regulations promulgated under Section 280G of the Code, any such “parachute payments” or (B) shall have voted upon and disapproved such “parachute payments,” and, as a consequence, such “parachute payments” shall not be paid or provided for in any manner and Buyer and its Affiliates shall not have any Liabilities with respect to such “parachute payments.”

Conditions to the Obligations of Buyer and Merger Sub. The obligations of Buyer and Merger Sub to consummate, or cause to be consummated, the Merger are subject to the satisfaction on or prior to the Closing Date of the following additional conditions, any one or more of which may be waived in writing by Buyer and Merger Sub: (a) Each of the representations and warranties of the Company contained in Article IVIV (other than the Fundamental Representations), disregarding all qualifications contained herein relating to materiality or Material Adverse Effect, shall be true and correct in all respects as of the date hereof of this Agreement and as of the Closing Date, as if made anew at and as of that date, except with respect to representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except except, in each case, for (i) any inaccuracy or omission failure of such representations and warranties to be so true and correct that would not not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (ii) notwithstanding Section 9.2(a)(i), (A) Effect on the Company. The Fundamental Representations, Representations shall be true and correct in all respects as of the Closing Date, as if made anew at and as of that date, except for such inaccuracies which are de minimis, individually or in the aggregate and (B) the with respect to representations and warranties contained in Section 4.11 which speak as to an earlier date, which representations and Section 4.20 warranties shall be true and correct at and as of such date, in all material respectseach case other than de minimis inaccuracies. (b) Each of the covenants of the Company to be performed at or prior to the Closing shall have been performed in all material respects. (c) The Company shall have delivered to Buyer a certificate signed by an authorized officer on behalf of the Company, dated as of the Closing Date, certifying thatcertifying, to the knowledge and belief of such authorized officer, that the conditions specified in Section 9.2(a) and Section 9.2(b) have been fulfilledsatisfied. (d) The Company shall have delivered to Buyer a certificate in accordance with the requirements of Treasury Regulation Sections 1.897-2(h) and 1.1445-2(c)(3) dated within thirty (30) days prior to the Closing Date certifying that the Company is not a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code along with written authorization for Buyer to deliver such notice form to the IRS on behalf of the Company upon Closing. (e) There shall not have occurred since the Company Balance Sheet Date any Material Adverse Effect nor shall events have occurred that, individually or in the aggregate, would reasonably be expected to result in a Material Adverse Effect. (f) The Required Third Party Consents shall have been obtained in form and substance reasonably satisfactory to Buyer. (g) The Restructuring shall have been completed pursuant to the Restructuring Step Plan. (h) The Company shall have delivered to Buyer the Second Amended and Restated License Agreements executed by each of TeneoTwo, TeneoFour and TeneoTen and such Second Amended and Restated License Agreements shall not have been terminated and shall be in full force and effect. (i) No less than three (3) days prior to the Closing Date, the Company will have obtained and delivered to Buyer true, correct and complete copies of Written Consents executed by Company Stockholders representing (a) ninety percent (90%) of the votes represented by all outstanding shares of Company Capital Stock voting together as a single class on an as-converted basis and (b) each Pre-Closing Holder who owns in excess of five percent (5%) of the outstanding Company Capital Stock on a fully diluted basis (the “Requisite Stockholder Approval”) and such Requisite Stockholder Approval shall have been validly obtained and be in full force and effect at the Closing. (j) Evidence satisfactory to Buyer that each Company Benefit Plan intended to be qualified under Section 401(k) of the Code has been terminated effective as of the day immediately prior to the Closing pursuant to resolutions duly adopted by the board of directors of the Company sponsoring such Company Benefit Plan(s). (k) If a 280G Vote is required to be undertaken under Section 7.3(d) hereof, (i) the Company shall have solicited from each Person who is eligible to receive a payment that may constitute a “parachute payment” under Section 280G of the Code prior to soliciting the Section 280G Approval and, to the extent received by the Company, delivered to Buyer each signed Parachute Payment Waiver and (ii) to the extent any Parachute Payment Waivers are executed, the Company’s shareholders shall have (A) approved, pursuant to the method provided for in the regulations promulgated under Section 280G of the Code, any such “parachute payments” or (B) shall have voted upon and disapproved such “parachute payments,” and, as a consequence, such “parachute payments” shall not be paid or provided for in any manner and Buyer and its Affiliates shall not have any Liabilities with respect to such “parachute payments.”