Common use of Conditions to the Obligations of Parent and Acquisition Clause in Contracts

Conditions to the Obligations of Parent and Acquisition. The respective obligations of Parent and Acquisition to effect the Merger are subject to the satisfaction at or prior to the Effective Time of the following conditions: (a) (i) each of the representations and warranties qualified by “Material Adverse Effect on the Company” shall be true and correct as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date, and (ii) each of the representations and warranties of the Company set forth in this Agreement and not qualified by “Material Adverse Effect on the Company”, disregarding all qualifications and exceptions contained therein relating to materiality, shall be true and correct as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent that such representations and warranties speak as of another date, in which case such representations and warranties shall be true and correct as of such other date), except where the failure of such representations and warranties to be true and correct would not, individually or in the aggregate, have a Material Adverse Effect on the Company, and at the Closing, the Company shall have delivered to Parent and Acquisition a certificate to that effect, executed by two (2) executive officers of the Company; (b) the covenants and obligations of the Company to be performed at or before the Effective Time pursuant to the terms of this Agreement shall have been duly performed in all material respects at or before the Effective Time and, at the Closing, the Company shall have delivered to Parent and Acquisition a certificate to that effect, executed by two (2) executive officers of the Company; (c) subject to each of the disclosures in the Company Disclosure Schedule, there shall have been no Material Adverse Effect on the Company; (d) Parent shall have received a written opinion of G▇▇▇▇▇, D▇▇▇ & C▇▇▇▇▇▇▇ LLP, counsel to Parent, to the effect that (i) the Merger will constitute a reorganization within the meaning of Section 368(a) of the Code, and (ii) each of Parent, Acquisition and the Company will be a party to the reorganization within the meaning of Section 368(b) of the Code, and such opinion shall not have been withdrawn; provided, however, that if G▇▇▇▇▇, D▇▇▇ & C▇▇▇▇▇▇▇ LLP fails to deliver such opinion, then W▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & R▇▇▇▇▇, Professional Corporation, counsel to the Company, may deliver such opinion in satisfaction of this closing condition; provided further, that any such opinion may rely on representations as such counsel reasonably deems appropriate and on typical assumptions. Parent, Acquisition, and the Company agree to provide to such counsel such representations as such counsel reasonably requests in connection with rendering such opinions; and (e) in connection with the compliance by Parent or Acquisition with any Applicable Law (including the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law), Parent shall not be (i) required, or be construed to be required, to sell or divest any assets or business or to restrict any business operations, or (ii) prohibited from owning, and no limitation shall be imposed on Parent’s ownership of, any portion of the Company’s business or assets.

Conditions to the Obligations of Parent and Acquisition. The ------------------------------------------------------- respective obligations of Parent and Acquisition to effect the Merger are subject to the satisfaction at or prior to the Effective Time of the following conditions: (a) (i) each of the representations and warranties qualified by “Material Adverse Effect on the Company” shall be true and correct as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date, and (ii) each of the representations and warranties of the Company set forth contained in this Agreement and not qualified by “Material Adverse Effect on the Company”, disregarding all qualifications and exceptions contained therein relating to materiality, shall be or in any other document delivered pursuant hereto is true and correct as of the date of this Agreement in all material respects at and as of the Closing Date Effective Time with the same effect as though if made on at and as of the Closing Date (except to the extent that such representations and warranties speak as of another dateEffective Time and, in which case such representations and warranties shall be true and correct as of such other date), except where the failure of such representations and warranties to be true and correct would not, individually or in the aggregate, have a Material Adverse Effect on the Company, and at the Closing, the Company shall have delivered to Parent and Acquisition a certificate to such effect; provided, however, that effectfor any representation or warranty other than those contained in Sections 2.1, executed by two 2.2(b) or (2d), 2.3, 2.5 or 2.9, it shall only be a condition to closing that the aggregate effect of any inaccuracies in such representations or warranties shall not have had, between the date hereof and the Effective Time and at and as of the Effective Time, and shall not be reasonably likely to have, a material adverse effect on the business, operations, condition (financial or otherwise) executive officers or prospects of the Company;, or have resulted in, or be reasonably likely to result in, a decrease in the value of the assets of the Company or an increase in the liabilities of the Company of in excess of $5.0 million; and provided further, however, that, except as otherwise provided in Section 1.12(c), notwithstanding the occurrence of the Closing, neither Parent nor Acquisition shall be deemed to have waived or otherwise limited its right to recover Losses pursuant to Section 1.12 or otherwise for any breach of or inaccuracy in any such representations and warranties of the Company. (b) each of the covenants and obligations of the Company to be performed at or before the Effective Time pursuant to the terms of this Agreement shall have been duly performed in all material respects at or before the Effective Time and at the Closing the Company shall have delivered to Parent and Acquisition a certificate to that effect; (c) each Company Affiliate shall have performed his or its obligations under the applicable Affiliate Letter, and Parent shall have received a certificate signed by each of them to such effect; (d) Parent shall have received a letter from E&Y to the effect that "pooling-of-interests" accounting is appropriate for the Merger if the Merger is closed and consummated in accordance with the terms of this Agreement, and such letter shall not have been withdrawn or modified in any material respect. (e) the Company shall have obtained the consent or approval of each person whose consent or approval shall be required in order to permit the succession by the Surviving Corporation pursuant to the Merger to any obligation, right or interest of the Company under any loan or credit agreement, note, mortgage, indenture, lease or other agreement or instrument, except for those for which failure to obtain such consents or approvals would not, in the reasonable opinion of Parent, individually or in the aggregate, have a Material Adverse Effect on the Company; (f) the number of Company Dissenting Shares as of the Effective Time shall not exceed 9% of the then issued and outstanding Company Shares (with each share of Company Preferred Stock being converted into the number of shares of Company Common Stock into which such share of Company Preferred Stock may be converted); (g) the Escrow Agreement shall have been duly executed and delivered by the Company, the Escrow Committee and The Bank of Boston, in its capacity as escrow agent, and shall be in full force and effect; (h) the Employment Agreement between the Company and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall be in full force and effect, and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall be in good physical and mental health and capable of performing his obligations under such Employment Agreement; (i) the Non-Competition Agreements shall be in full force and effect; (i) the Restated Investors' Rights Agreement dated as of September 25, 1995, by and among the Company, the persons listed on Exhibit A thereto as Investors, the persons listed on Exhibit A thereto as Founders, and ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇, as amended from time to time, and (ii) all registration rights existing with respect to any Company Securities, shall have been terminated, and Parent and Acquisition shall have received written evidence of the same; (k) the Articles Amendment shall have been approved and adopted by the requisite vote or consent of the stockholders of the Company; (l) all of the Management Stockholders, together with Preferred Stockholders holding at least 90% of the Company Shares held by all Preferred Stockholders, shall have executed and delivered to the Company a Consent and Waiver as contemplated by Section 4.17, or each share of Company Preferred Stock shall have been converted prior to the Effective Time into shares of Company Common Stock pursuant to Article IV, Section 5(c)(i) of the Restated Certificate of Incorporation of the Company; (m) ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall have executed and delivered to the Company an internet domain assignment agreement, substantially in the form of Exhibit I, --------- pursuant to which ▇▇. ▇▇▇▇▇ will assign the entire right, title and interest held by him and/or certain entities owned or controlled (in whole or in part) by him in the internet domain names and related intellectual property identified in such form; (n) each of the Company Affiliates identified in Section 4.15 of the Company Disclosure Schedule shall have executed and delivered the Affiliate Letter; and (o) there shall have been no events, changes or effects with respect to the Company having or which could reasonably be expected to have a Material Adverse Effect on the Company and, at the Closing, the Company shall have delivered to Parent and Acquisition a certificate to that effect, executed by two (2) executive officers of the Company; (c) subject to each of the disclosures in the Company Disclosure Schedule, there shall have been no Material Adverse Effect on the Company; (d) Parent shall have received a written opinion of G▇▇▇▇▇, D▇▇▇ & C▇▇▇▇▇▇▇ LLP, counsel to Parent, to the effect that (i) the Merger will constitute a reorganization within the meaning of Section 368(a) of the Code, and (ii) each of Parent, Acquisition and the Company will be a party to the reorganization within the meaning of Section 368(b) of the Code, and such opinion shall not have been withdrawn; provided, however, that if G▇▇▇▇▇, D▇▇▇ & C▇▇▇▇▇▇▇ LLP fails to deliver such opinion, then W▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & R▇▇▇▇▇, Professional Corporation, counsel to the Company, may deliver such opinion in satisfaction of this closing condition; provided further, that any such opinion may rely on representations as such counsel reasonably deems appropriate and on typical assumptions. Parent, Acquisition, and the Company agree to provide to such counsel such representations as such counsel reasonably requests in connection with rendering such opinions; and (e) in connection with the compliance by Parent or Acquisition with any Applicable Law (including the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law), Parent shall not be (i) required, or be construed to be required, to sell or divest any assets or business or to restrict any business operations, or (ii) prohibited from owning, and no limitation shall be imposed on Parent’s ownership of, any portion of the Company’s business or assets.

Conditions to the Obligations of Parent and Acquisition. The respective obligations of Parent and Acquisition to effect the Merger are subject to the satisfaction at or prior to the Effective Time of the following conditions: (a) (i) each of the representations and warranties qualified by “Material Adverse Effect on the Company” shall be true and correct as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date, and (ii) each of the representations and warranties of the Company set forth contained in this Agreement (other than those contained in Section 2.24) and in the Stock Option Agreement shall be true and correct (except to the extent that the aggregate of all breaches thereof would not qualified by “have a Material Adverse Effect on the Company”, disregarding all qualifications and exceptions contained therein relating to materiality, shall be true and correct as of the date of this Agreement ) at and as of the Closing Date Effective Time with the same effect as though if made on at and as of the Closing Date Effective Time (except to the extent that such representations and warranties speak as of another specifically related to an earlier date, in which case such representations and warranties shall be true and correct as of such other earlier date), except where and in any event, subject to the failure of such foregoing Material Adverse Effect qualification) and the representations and warranties to of the Company contained in Section 2.24 shall be true and correct would notin all respects at and as of the Effective Time, individually or in the aggregateand, have a Material Adverse Effect on the Company, and at the Closing, the Company shall have delivered to Parent and Acquisition a certificate to that effect, executed by two (2) executive officers of the Company; (b) each of the covenants and obligations of the Company to be performed at or before the Effective Time pursuant to the terms of this Agreement shall have been duly performed in all material respects at or before the Effective Time and, at the Closing, the Company shall have delivered to Parent and Acquisition a certificate to that effect, executed by two (2) executive officers of the Company; (c) subject to Parent shall have received from each affiliate of the disclosures Company referred to in Sections 2.21 and 4.13 (a) an executed copy of the Company Disclosure Schedule, letter attached hereto as EXHIBIT A-1; (d) there shall have been no events, changes or effects with respect to the Company or its subsidiaries having or that, individually or in the aggregate, would reasonably be expected to have, a Material Adverse Effect on the Company; (de) Parent shall have received a written the opinion of G▇▇▇▇▇, D▇▇▇ & C▇▇▇▇▇▇▇ LLP, tax counsel to Parent, Parent to the effect that (i) the Merger will constitute be treated for Federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code, Code and (ii) each of Parent, Acquisition and the Company will be a party to the reorganization within the meaning of Section 368(b) of the Code, which opinion may rely on the representations set forth in EXHIBITS B-1 and B-2 and such other representations as such counsel reasonably deems appropriate, and such opinion shall not have been withdrawn; provided, however, that if G▇▇▇▇▇, D▇▇▇ & C▇▇▇▇▇▇▇ LLP fails to deliver such opinion, then W▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & R▇▇▇▇▇, Professional Corporation, counsel to the Company, may deliver such opinion withdrawn or modified in satisfaction of this closing condition; provided further, that any such opinion may rely on representations as such counsel reasonably deems appropriate and on typical assumptions. Parent, Acquisition, and the Company agree to provide to such counsel such representations as such counsel reasonably requests in connection with rendering such opinions; and (e) in connection with the compliance by Parent or Acquisition with any Applicable Law (including the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law), Parent shall not be (i) required, or be construed to be required, to sell or divest any assets or business or to restrict any business operations, or (ii) prohibited from owning, and no limitation shall be imposed on Parent’s ownership of, any portion of the Company’s business or assets.respect;

Conditions to the Obligations of Parent and Acquisition. The ------------------------------------------------------- respective obligations of Parent and Acquisition to effect the Merger are subject to the satisfaction at or prior to the Effective Time of the following conditions: (a) (i) each of the representations and warranties qualified by “Material Adverse Effect on the Company” shall be true and correct as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date, and (ii) each of the representations and warranties of the Company set forth contained in this Agreement and not qualified by “Material Adverse Effect on the Company”Agreement, disregarding all qualifications and exceptions except for those contained therein relating to materialityin Section 2.2, shall be true and correct as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (correct, except to the extent that such representations and warranties speak as the aggregate of another date, in which case such representations and warranties shall be true and correct as of such other date), except where the failure of such representations and warranties to be true and correct all breaches thereof would not, individually or in the aggregate, not have a Material Adverse Effect on the Company, and the representations and warranties of the Company contained in Section 2.2 shall 44 be true and correct in all material respects, in each case as of the date hereof and at and as of the Effective Time with the same effect as if made at and as of the Effective Time and except for the grant of New Options pursuant to Section 4.1(b) (and except to the extent such representations specifically relate to an earlier date, in which case such representations shall be true and correct as of such earlier date) and, at the Closing, the Company shall have delivered to Parent and Acquisition a certificate to that effect, executed by two (2) executive officers of the Company; (b) each of the material covenants and obligations of the Company to be performed at or before the Effective Time pursuant to the terms of this Agreement shall have been duly performed in all material respects at or before the Effective Time and, at the Closing, the Company shall have delivered to Parent and Acquisition a certificate to that effect, executed by two (2) executive officers of the Company; (c) subject to each of the disclosures in the Company Disclosure Schedule, there shall not have been no occurred a Material Adverse Effect on the Company; (d) Parent shall have received a written the opinion of G▇▇▇▇▇, D▇▇▇ & C▇▇▇▇▇▇▇ LLP, tax counsel to Parent, Parent reasonably acceptable to Parent to the effect that (i) the Merger will constitute be treated for Federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code, Code and (ii) each of Parent, Acquisition and the Company will be a party to the reorganization within the meaning of Section 368(b) of the Code, which opinion may rely on such representations as such counsel reasonably deems appropriate, and such opinion shall not have been withdrawn; provided, however, that if G▇▇▇▇▇, D▇▇▇ & C▇▇▇▇▇▇▇ LLP fails to deliver such opinion, then W▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & R▇▇▇▇▇, Professional Corporation, withdrawn or modified in any material respect; (e) Parent shall have received the opinion of legal counsel to the Company, may deliver such opinion Company as to the matters set forth in satisfaction of this closing conditionExhibit D; provided further, that any such opinion may rely on representations as such counsel reasonably deems appropriate and on typical assumptions. Parent, Acquisition, and --------- (f) the Company agree shall have obtained the consent or approval of each Person listed on Schedule 5.3(f) whose consent or approval shall be required in --------------- order to provide permit the succession by the Surviving Corporation pursuant to such counsel such representations as such counsel reasonably requests in connection the Merger to any agreement, instrument, obligation, right, permit or interest of the Company; (g) no more than five percent (5%) of the outstanding Shares shall be Dissenting Shares or other Shares with rendering such opinionsrespect to which dissenter's rights have not been terminated; and (eh) in connection with the compliance by Parent or Acquisition with any Applicable Law (including the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law), Parent shall not be either (i) requiredthe California Commissioner shall have issued a permit under Section 25121 of the California Corporations Code (following a hearing upon the fairness of the terms and conditions of the Merger, or be construed conducted pursuant to Section 25142 of the California Corporations Code) for the issuance of the Parent Common Stock to be requiredissued in the Merger, to sell or divest any assets or business or to restrict any business operations, and all applicable requirements of Section 3(a)(10) of the Securities Act shall have been satisfied or (ii) prohibited from owning, the issuance of the shares of Parent Common Stock and no limitation options to purchase shares of Parent Common Stock pursuant to this Agreement shall be imposed on Parent’s ownership of, any portion of exempt from the Company’s business or assetsregistration requirements under the Securities Act.

Conditions to the Obligations of Parent and Acquisition. The ------------------------------------------------------- respective obligations of Parent and Acquisition to effect the Merger are subject to the satisfaction at or prior to the Effective Time of the following conditions: (a) (i) each of the representations and warranties qualified by “Material Adverse Effect on of the Company” Company contained in this Agreement (other than those contained in Section 2.25) shall be true and correct as of the date of this Agreement Effective Time with the same effect as if made at and as of the Closing Date as though made on and as of the Closing Date, and (ii) each of the representations and warranties of the Company set forth in this Agreement and not qualified by “Material Adverse Effect on the Company”, disregarding all qualifications and exceptions contained therein relating to materiality, shall be true and correct as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date Effective Time (except to the extent that such representations and warranties speak as of another specifically relate to an earlier date, in which case such representations and warranties shall be true and correct as of such other earlier date), and in any event, and except where to the failure extent that the aggregate of such all breaches thereof would not have a Material Adverse Effect) and the representations and warranties to of the Company contained in Section 2.25 shall be true and correct would notin all respects as of the Effective Time, individually or in the aggregateand, have a Material Adverse Effect on the Company, and at the Closing, the Company shall have delivered to Parent and Acquisition a certificate to that effect, executed by two (2) executive officers of the Company; (b) each of the covenants and obligations of the Company to be performed at or before the Effective Time pursuant to the terms of this Agreement shall have been duly performed in all material respects at or before the Effective Time and, at the Closing, the Company shall have delivered to Parent and Acquisition a certificate to that effect, executed by two (2) executive officers of the Company; (c) subject to each since the date of the disclosures in the Company Disclosure Schedulethis Agreement, there shall have been no Material Adverse Effect on material adverse change in the Intellectual Property owned by or licensed to the Company, other than such changes resulting from requests from Parent and other than such changes resulting from this Agreement or the announcement of this Agreement or the consummation of the Merger or the transactions contemplated hereby; (d) the Company's officers and directors shall have entered into lock-up agreements in substantially the form entered into by officers and directors of Parent in connection with its initial public offering (and with release and expiration dates identical thereto) covering all Parent Shares issued in the Merger and all stock options assumed in the Merger, which total approximately 150,000 shares; (e) since the date of this Agreement, there shall have been no litigation commenced against the Company that would be required to be disclosed by Item 103 of Regulation S-K (other than any litigation brought against the Company, any member of the Company Board or any officer of the Company in respect of the discussions or negotiations relating to this Agreement or the announcement of this Agreement or the consummation of the Merger or the transactions contemplated hereby); provided, that for the purposes of this Subsection, Item103, Instruction 2 shall be 20% rather than 10%; (f) Parent shall have received a written the opinion of G▇▇▇▇▇, D▇▇▇ & C▇▇▇▇▇▇▇ LLP, tax counsel to Parent, Parent or tax counsel to the Company to the effect that (i) the Merger will constitute be treated for Federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code, Code and (ii) each of Parent, Acquisition and the Company will be a party to the reorganization within the meaning of Section 368(b) of the Code, which opinion may rely on the representations set forth in Exhibits B-1 and B-2 and such other representations as such counsel reasonably ------------ --- deems appropriate, and such opinion shall not have been withdrawn; provided, however, that if G▇▇▇▇▇, D▇▇▇ & C▇▇▇▇▇▇▇ LLP fails to deliver such opinion, then W▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & R▇▇▇▇▇, Professional Corporation, counsel to the Company, may deliver such opinion withdrawn or modified in satisfaction of this closing condition; provided further, that any such opinion may rely on representations as such counsel reasonably deems appropriate and on typical assumptions. Parent, Acquisition, and the Company agree to provide to such counsel such representations as such counsel reasonably requests in connection with rendering such opinionsmaterial respect; and (eg) in connection Parent shall have received amendments to the License Agreements with the compliance by Parent or Acquisition with any Applicable Law (including customers identified as having licenses in the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law), Parent shall not be (i) required, or be construed to be required, to sell or divest any assets or business or to restrict any business operations, or (ii) prohibited from owning, and no limitation shall be imposed on Parent’s ownership of, any portion last paragraph of Section 2.7 of the Company’s business or assetsCompany Disclosure Schedule establishing that each of these agreements provide for the grant of a nonexclusive license.

Conditions to the Obligations of Parent and Acquisition. The respective obligations of Parent and Acquisition to effect the Merger are subject to the satisfaction at or prior to the Effective Time of the following conditions: (a) (i) each of the representations and warranties qualified by “Material Adverse Effect on the Company” shall be true and correct as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date, and (ii) each of the representations and warranties of the Company set forth contained in this Agreement and not qualified by “Material Adverse Effect on the Company”, disregarding all qualifications and exceptions contained therein relating to materiality, shall be true and correct as of the date of this Agreement in all material respects at and as of the Closing Date Effective Time with the same effect as though if made on at and as of the Closing Date Effective Time (except to the extent that such representations and warranties speak as of another specifically relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such other earlier date)) and, except where the failure of such representations and warranties to be true and correct would not, individually or in the aggregate, have a Material Adverse Effect on the Company, and at the Closing, the Company shall have delivered to Parent and Acquisition a certificate to that effect, executed by two (2) executive officers of the Company; (b) each of the covenants and obligations of the Company to be performed at or before the Effective Time pursuant to the terms of this Agreement shall shah have been duly performed in all material respects at or before the Effective Time and, at the Closing, the Company shall have delivered to Parent and Acquisition a certificate to that effect, executed by two (2) executive officers of the Company; (c1) subject to each the Company shall have obtained all requisite approvals of the disclosures in holders of the Shares, the Preferred A Stock and the Preferred B Stock for this Agreement and the Merger, (2) a waiver of any notice requirements with respect to the Preferred A Stock and Preferred B Stock pursuant to Article IV(B)(2)(c)(iii) of the Company's Certificate of Incorporation shall have been obtained or the Company's Certificate of Incorporation shall have been amended to eliminate such notice requirements, and (3) any notice requirements under any Company Warrant shall have been waived or complied with; (d) the consents specified on Section 5.3(d) of the Company Disclosure ScheduleSchedule and any other material third party consents necessary to consummate the transactions contemplated hereby shall have been given, obtained or complied with as applicable; (e) there shall have been no events, changes or effects, individually or in the aggregate, with respect to the Company having, or that would reasonably be expected to have, a Material Adverse Effect on the Company; (df) none of the employees listed in a memorandum initialed as of the date hereof by the Company and Parent (the "Designated Employees") shall have terminated their employment with the Company or expressed their intention to do so; no more than 10% of the engineering employees of the Company as of the date hereof as listed in Section 5.3(f) of the Company Disclosure Schedule (the "Engineers") shall have terminated their employment with CONFIDENTIAL the Company or expressed their intention to do so; and no more than 15% of the employees OF the Company as of the date hereof as listed in Section 5.3(f) of the Company Disclosure Schedule (the "Employees") shall have terminated their employment with the Company or expressed their intention to do so. In addition, each Designated Employee, at least ninety percent (90%) of the Engineers, and at least eighty-five percent (85%) of the Employees shall have executed and delivered to Parent a written instrument, in form and substance reasonably acceptable to Parent, (1) acknowledging and agreeing that the position offered to each such person following the Merger does not constitute a material reduction in such employee's level of responsibility and does not otherwise result in an "Involuntary Termination," in either case within the meaning of Section L of the 1997 Stock Option Plan, and (2) agreeing that the terms of any options that have been granted to such person under the 1997 Stock Option Plan shall be amended such that the 24-month period during which such options would accelerate upon an "Involuntary Termination" within the meaning of Section L of the 1997 Stock Option Plan shall be amended to reduce such period to twelve (12) months with respect to such employee's options; (g) no more than 5% of the outstanding Shares (excluding any stockholder listed on Section 5.3(g) of the Company Disclosure Schedule) shall be Dissenting Shares or other Shares with respect to which dissenters' rights have not terminated; (h) the Employment Agreement and Non-Competition Agreement executed by the Company, Parent and each of the individuals set forth in a separate memorandum between Parent and the Company shall remain in full force and effect; (i) the Company shall have taken such action as is necessary to assign and transfer to Parent any repurchase rights held by the Company with respect to Shares Subject to Repurchase; (j) the Company and Parent shall have agreed on the position to be offered to each employee of the Company following the Merger, and the Board of Directors of the Company shall have reviewed each such position and determined by resolutions unanimously adopted by such Board (which resolutions shall remain in full force and effect as of the Closing) that no such position offered to any employee of the Company would constitute a material reduction in such employee's level of responsibility or would otherwise result in an "Involuntary Termination," in either case within the meaning of Section L of the 1997 Stock Option Plan. The Board of Directors of the Company shall also have determined by resolutions unanimously adopted by such Board (which resolutions shall remain in full force and effect as of the Closing) that the grounds for dismissal that would constitute "Misconduct" within the meaning of Section M of the 1997 Stock Option Plan shall not be limited to the matters set forth therein; (k) the Company shall have obtained a waiver from the participants in the Company's intellectual property bonus plan in consideration of such participants becoming participants in Parent's comparable patent compensation plan; and (l) Parent shall have received a written the opinion of G▇▇▇▇▇, D▇▇▇ & C▇▇▇▇▇▇▇ LLP, counsel to Parent, to the effect that (i) the Merger will constitute a reorganization within the meaning of Section 368(a) of the Code, and (ii) each of Parent, Acquisition and the Company will be a party to the reorganization within the meaning of Section 368(b) of the Code, and such opinion shall not have been withdrawn; provided, however, that if G▇▇▇▇▇, D▇▇▇ & C▇▇▇▇▇▇▇ LLP fails to deliver such opinion, then W▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & R▇▇▇▇▇, Professional Corporation, legal counsel to the Company, may deliver such opinion Company as to the matters set forth in satisfaction of this closing condition; provided further, that any such opinion may rely on representations as such counsel reasonably deems appropriate and on typical assumptions. Parent, Acquisition, and the Company agree to provide to such counsel such representations as such counsel reasonably requests in connection with rendering such opinions; and (e) in connection with the compliance by Parent or Acquisition with any Applicable Law (including the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law), Parent shall not be (i) required, or be construed to be required, to sell or divest any assets or business or to restrict any business operations, or (ii) prohibited from owning, and no limitation shall be imposed on Parent’s ownership of, any portion of the Company’s business or assets.EXHIBIT D.

Conditions to the Obligations of Parent and Acquisition. The respective obligations of Parent and Acquisition to effect the Merger are subject to the satisfaction at or prior to the Effective Time of each of the following conditions: (a) (i) each of the representations and warranties qualified by “Material Adverse Effect on the Company” shall be true and correct as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date, and (ii) each of the representations and warranties of the Company set forth contained in this Agreement and not qualified by “Material Adverse Effect on the Company”, disregarding all qualifications and exceptions contained therein relating to materiality, shall be true and correct as of the date of this Agreement in all material respects at and as of the Closing Date Effective Time with the same effect as though if made on at and as of the Closing Date Effective Time (except to the extent that such representations and warranties speak as of another specifically related to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such other earlier date), except where the failure of such representations and warranties to be true and correct would notand, individually or in the aggregate, have a Material Adverse Effect on the Company, and at the Closing, the Company shall have delivered to Parent and Acquisition a certificate to that effect, executed by two (2) executive officers of the Company; (b) each of the covenants and obligations of the Company to be performed at or before the Effective Time pursuant to the terms of this Agreement shall have been duly performed in all material respects at or before the Effective Time and, at the Closing, the Company shall have delivered to Parent and Acquisition a certificate to that effect, executed by two (2) executive officers of the Company; (c) subject to each of the disclosures in the Company Disclosure Schedule, there shall have been no circumstances, changes in or effects on the Company or any Subsidiaries that, individually or in the aggregate, have had or could be expected to have, a Material Adverse Effect on the Company; (d) Parent shall have received a written the opinion of G▇▇▇▇▇, D▇▇▇ & C▇▇▇▇▇▇▇ LLP, outside legal counsel to Parent, the Company as to the effect that matters set forth in Exhibit G; (e) the Company shall have obtained the consent or approval of each person whose consent or approval shall be required in order to permit the succession by the Surviving Corporation pursuant to the Merger to any obligation, right or interest of the Company or Subsidiaries under the agreements and instruments set forth in Sections 2.6, 2.7 or 2.15(a) of the Disclosure Letter; (f) Each of the employees of the Company listed on Schedule 5.3(f) shall remain an employee not subject to termination by the Company and shall not have expressed any intention not to continue his or her employment with the Surviving Corporation or Parent after the Effective Time; (g) Parent shall have received from each person listed in Schedule 5.3(g) a noncompetition agreement in the form of Exhibit H; (h) each current and former employee of the Company shall have signed the Company’s standard form of proprietary information, confidentiality and assignment agreement; (i) the Merger will constitute Company shall have obtained from all of its customers written acceptances (or other documentation satisfactory to Parent in its sole discretion) under the Company’s contracts with such customers; (j) all rights to Intellectual Property set forth on Schedule 5.3(j) shall be assigned or otherwise transferred to Company in a reorganization within manner reasonably satisfactory to Parent; (k) the meaning of Section 368(aCompany shall have entered into license agreements in forms reasonably satisfactory to Parent with all third parties whose Intellectual Property rights the Company has in the past or is currently reselling to the Company’s customers; (l) of the Code, and (ii) each of Parent shall have received evidence satisfactory to Parent, Acquisition as determined in its sole discretion, that all severance and consulting agreements by and between the Company will be a party to the reorganization within the meaning of Section 368(b) of the Code, and such opinion shall not have been withdrawn; provided, however, that if G▇▇▇▇▇, D▇▇▇ & C▇▇▇▇▇▇▇ LLP fails to deliver such opinion, then W▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ & R▇▇▇▇▇▇ and any other consultants under contract with the Company will be terminated, Professional Corporationcancelled and settled as of the Effective Time; (m) Parent shall have received evidence satisfactory to Parent, counsel as determined in its sole discretion, that all Notes will be cancelled and terminated as of the Effective Time; (n) Parent shall have received evidence satisfactory to Parent, as determined in its sole discretion, that all Company Obligations and Company obligations with respect to Key Employees Severance Payments will be terminated, cancelled and settled as of the Effective Time by virtue of the payments set forth in Section 1.5(a) hereof; (o) Parent shall have received evidence satisfactory to Parent, as determined in its sole discretion, that at least One Hundred Twenty Five Thousand (125,000) shares of Parent Common Stock of the Maximum Stock Merger Consideration will be allocated as Holdback Shares as set forth in Section 1.7(a) hereof as of the Effective Time; (p) Parent shall have received evidence satisfactory to Parent, as determined in its sole discretion, that all Liens set forth in Section 2.16 of the Disclosure Letter will be terminated and, where such Liens are evidenced by UCC filings, UCC-3 termination statements will be effective as of the Effective Time; (q) Parent shall have received evidence satisfactory to Parent, as determined in its sole discretion, that all agreements, including all warrants, credit facilities and promissory notes, between the Company and Comerica Bank-California and all affiliates thereof and successors thereto, will be terminated, cancelled and settled as of the Effective Time; (r) the Company’s Board of Directors shall have adopted a resolution with the effect of terminating Target’s 401(k) plan contingent on the Closing of the Merger and effective as of at least one calendar day prior to the Closing Date; (s) the Company shall have filed a complete, accurate, and timely year 2000 annual report (Form 5500 series) for each Benefit Plan that is required to make such filings; including the Company’s 401(k) plan and plan maintained pursuant to Code Section 125; (t) the Company shall have performed the 2000 plan year nondiscrimination testing relating to the Company’s 401(k) plan that is required pursuant to Code Sections 401(a)(4), may deliver such opinion in satisfaction of this closing condition; provided further401(k), that any such opinion may rely on representations as such counsel reasonably deems appropriate 401(m) and on typical assumptions. Parent, Acquisition410(b), and the final test results, after any necessary and permissible correction, demonstrate that the 401(k) plan is nondiscriminatory pursuant to the foregoing Code Sections; (u) the Company agree shall have filed its year 2000 Federal income tax return, complete and with related filings and documentation; (v) Parent shall have received evidence satisfactory to provide Parent, as determined in its sole discretion, that the Company has no obligations or liability under any lease, sublease or other agreements with the California State Automobile Association Lease Company Inter-Insurance Bureau, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ or PowerSpace; (w) Parent shall have received from the Company an estimate of all legal and professional fees, as defined in Section 6.3(c), in excess of One Hundred and Twenty Five Thousand Dollars ($125,000) incurred by the Company as of the Effective Time, and such estimated excess fee amount shall be set forth in Schedule 1.5(a)(i)(A); (x) the Company shall have received a fairness opinion for the transactions contemplated herein from a nationally recognized investment banking firm satisfactory to such counsel such representations Parent, as such counsel reasonably requests determined in connection with rendering such opinionsits sole discretion; and (ey) in connection with the compliance by Parent or Acquisition with any Applicable Law (including the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law), Parent shall not be (i) required, or be construed to be required, to sell or divest any assets or business or to restrict any business operations, or (ii) prohibited from owning, and no limitation Closing Date shall be imposed on Parent’s ownership ofor before October 31, any portion of the Company’s business or assets2001.

Conditions to the Obligations of Parent and Acquisition. The respective obligations of Parent and Acquisition to effect the Merger are subject to the satisfaction at or prior to the Effective Time of the following additional conditions: (a) (i) each of the representations and warranties qualified by “Material Adverse Effect on the Company” shall be true and correct as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date, and (ii) each of the representations and warranties of the Company set forth contained in this Agreement and not qualified by “Material Adverse Effect on the Company”Agreement, disregarding all qualifications and exceptions contained therein relating to materialitymateriality or Company Material Adverse Effect, shall be true and correct as of the date of this Agreement and as of the Closing Date Effective Time as though if made on at and as of the Closing Date such time (except to the extent that such other than representations and warranties speak that address matters only as of another a certain date, in which case such representations and warranties shall be true and correct as of such other certain date), except where the failure of such the representations and warranties to be true and correct would not, individually or in the aggregate, have a Company Material Adverse Effect Effect; and Parent shall have received a certificate signed on the Company, and at the Closing, behalf of the Company shall have delivered to Parent and Acquisition a certificate to that such effect, executed by two (2) executive officers of the Company; (b) each of the covenants and obligations of the Company to be performed at or before the Effective Time pursuant to the terms of this Agreement shall have been duly performed in all material respects at or before the Effective Time andTime, and at the Closing, Closing the Company shall have delivered to Parent and Acquisition a certificate to that effect, executed by two (2) executive officers of the Company; (c) subject the Company shall have obtained the consent or approval of each person whose consent or approval shall be required in order for the Company and its Subsidiaries to each of consummate the disclosures Merger, except those for which the failure to obtain such consent or approval would not, individually or in the aggregate, result in a Company Disclosure Schedule, there shall have been no Material Adverse Effect on and do not materially adversely affect the ability of the Company, Parent and Acquisition to consummate the Merger; (d) Parent shall have received all of the letter agreements required to be delivered by the Company pursuant to Section 4.16; (e) Parent shall have received from the Company a written opinion of G▇▇▇▇▇certification described in Treasury Regulation Section 1.1445-2(c)(3), D▇▇▇ & C▇▇▇▇▇▇▇ LLP, counsel in form and substance reasonably satisfactory to Parent, to the effect that (i) the Merger will constitute a reorganization within the meaning of Section 368(a) of the Code, and (ii) each of Parent, Acquisition and the Company will be a party to the reorganization within the meaning of Section 368(b) of the Code, and such opinion shall not have been withdrawn; provided, however, that if G▇▇▇▇▇, D▇▇▇ & C▇▇▇▇▇▇▇ LLP fails to deliver such opinion, then W▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & R▇▇▇▇▇, Professional Corporation, counsel to the Company, may deliver such opinion in satisfaction of this closing condition; provided further, that any such opinion may rely on representations as such counsel reasonably deems appropriate and on typical assumptions. Parent, Acquisition, and the Company agree to provide to such counsel such representations as such counsel reasonably requests in connection with rendering such opinions; and (ef) in connection there shall have been no events, changes or effects with respect to the compliance by Parent Company or Acquisition with any Applicable Law (including the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law), Parent shall not be (i) required, or be construed to be required, to sell or divest any assets or business or to restrict any business operations, or (ii) prohibited from owning, and no limitation shall be imposed on Parent’s ownership of, any portion of the Company’s business or assetsits Subsidiaries having a Company Material Adverse Effect.

Conditions to the Obligations of Parent and Acquisition. The respective obligations of Parent and Acquisition to effect the Merger are subject to the satisfaction at or prior to the Effective Time of the following conditions: (a) (i) each of the representations and warranties qualified by “Material Adverse Effect on the Company” shall be true and correct as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date, and (ii) each of the representations and warranties of the Company set forth contained in this Agreement and not (other than those contained in Section 2.22) that are qualified by “as to materiality or Material Adverse Effect on the Company”Company shall be true and correct, disregarding all qualifications and exceptions contained therein relating to materialityany such representations that are not so qualified, shall be true and correct as of the date of this Agreement in all material respects at and as of the Closing Date Effective Time with the same effect as though if made on at and as of the Closing Date Effective Time (except to the extent that such representations and warranties speak as of another specifically related to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such other earlier date)) and, except where the failure of such representations and warranties to be true and correct would not, individually or in the aggregate, have a Material Adverse Effect on the Company, and at the Closing, the Company shall have delivered to Parent and Acquisition a certificate to that effect, executed by two (2) executive officers of the Company; (b) each of the covenants and obligations of the Company to be performed at or before the Effective Time pursuant to the terms of this Agreement shall have been duly performed in all material respects at or before the Effective Time and, at the Closing, the Company shall have delivered to Parent and Acquisition a certificate to that effect, executed by two (2) executive officers of the Company; (c) subject to each of the disclosures in the Company Disclosure Schedule, there shall have been no not occurred and be continuing after the date of this Agreement a Material Adverse Effect on the Company; (d) Parent shall have received a written opinion of G▇▇▇▇▇▇, D▇▇▇▇ & C▇▇▇▇▇▇▇▇ LLP, counsel to Parent, to the effect that (i) the Merger will constitute a reorganization within the meaning of Section 368(a) of the Code, and (ii) each of Parent, Acquisition and the Company will be a party to the reorganization within the meaning of Section 368(b) of the Code, and such opinion shall not have been withdrawn; provided, however, that if G▇▇▇▇▇▇, D▇▇▇▇ & C▇▇▇▇▇▇▇▇ LLP fails to deliver such opinion, then W▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & R▇▇▇▇▇, Professional Corporation▇ LLP, counsel to the Company, may deliver such opinion in satisfaction of this closing condition; provided provided, further, that any such opinion may rely on representations as such counsel reasonably deems appropriate and on typical assumptions. Parent, Acquisition, and the Company agree to provide to such counsel such representations as such counsel reasonably requests in connection with rendering such opinions; (e) Parent and the Company shall have obtained the consents, approvals and waivers set forth in Section 5.3(e) of the Disclosure Letter; and (ef) Company shall have entered into an amendment of that certain License Agreement between the Company and Asics Corporation, a corporation existing under the laws of Japan, dated as of January 21, 1998, substantially in connection with the compliance by Parent or Acquisition with any Applicable Law (including the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law), Parent shall not be (iform set forth in Section 5.3(f) required, or be construed to be required, to sell or divest any assets or business or to restrict any business operations, or (ii) prohibited from owning, and no limitation shall be imposed on Parent’s ownership of, any portion of the Company’s business or assetsDisclosure Letter.

Conditions to the Obligations of Parent and Acquisition. The ------------------------------------------------------- respective obligations of Parent and Acquisition to effect the Merger are subject to the satisfaction at or prior to the Effective Time of the following conditions: (a) (i) each of the representations and warranties qualified by “Material Adverse Effect on the Company” shall be true and correct as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date, and (ii) each of the representations and warranties of the Company set forth contained in this Agreement and not qualified by “Material Adverse Effect on the Company”Agreement, disregarding all qualifications and exceptions except for those contained therein relating to materialityin Section 2.2, shall be true and correct as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (correct, except to the extent that such representations and warranties speak as the aggregate of another date, in which case such representations and warranties shall be true and correct as of such other date), except where the failure of such representations and warranties to be true and correct all breaches thereof would not, individually or in the aggregate, not have a Material Adverse Effect on the Company, and the representatives and warranties of the Company contained in Section 2.2 shall be true and correct in all respects, in each case as of the date hereof and at and as of the Effective Time with the same effect as if made at and as of the Effective Time (except to the extent such representations specifically relate to an earlier date, in which case such representations shall be true and correct as of such earlier date and, in any event, subject to the foregoing Material Adverse Effect qualification) and, at the Closing, the Company shall have delivered to Parent and Acquisition a certificate to that effect, executed by two (2) executive officers of the Company; (b) each of the material covenants and obligations of the Company to be performed at or before the Effective Time pursuant to the terms of this Agreement shall have been duly performed in all material respects at or before the Effective Time and, at the Closing, the Company shall have delivered to Parent and Acquisition a certificate to that effect, executed by two (2) executive officers of the Company; (c) subject to Parent shall have received from each affiliate of the disclosures Company referred to in Section 2.21 an executed copy of the Company Disclosure Schedule, letter attached hereto as Exhibit A-1; ------------ (d) there shall not have been no occurred a Material Adverse Effect on the Company; (de) Parent shall have received a written the opinion of G▇▇▇▇▇, D▇▇▇ & C▇▇▇▇▇▇▇ LLP, tax counsel to Parent, Parent reasonably acceptable to Parent to the effect that (i) the Merger will constitute be treated for Federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code, Code and (ii) each of Parent, Acquisition and the Company will be a party to the reorganization within the meaning of Section 368(b) of the Code, which opinion may rely on the representations set forth in Exhibits B-1 and B-2 and such other representations as such counsel reasonably ------------ --- deems appropriate, and such opinion shall not have been withdrawn; provided, however, that if G▇▇▇▇▇, D▇▇▇ & C▇▇▇▇▇▇▇ LLP fails to deliver such opinion, then W▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & R▇▇▇▇▇, Professional Corporation, counsel to the Company, may deliver such opinion withdrawn or modified in satisfaction of this closing condition; provided further, that any such opinion may rely on representations as such counsel reasonably deems appropriate and on typical assumptions. Parent, Acquisition, and the Company agree to provide to such counsel such representations as such counsel reasonably requests in connection with rendering such opinions; and (e) in connection with the compliance by Parent or Acquisition with any Applicable Law (including the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law), Parent shall not be (i) required, or be construed to be required, to sell or divest any assets or business or to restrict any business operations, or (ii) prohibited from owning, and no limitation shall be imposed on Parent’s ownership of, any portion of the Company’s business or assets.respect;

Conditions to the Obligations of Parent and Acquisition. The ------------------------------------------------------- respective obligations of Parent and Acquisition to effect the Merger are subject to the satisfaction or waiver at or prior to the Effective Time of the following conditions: (a) (i) each of the representations and warranties qualified by “Material Adverse Effect on the Company” shall be true and correct as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date, and (ii) each of the representations and warranties of the Company set forth contained in this Agreement and not qualified by “Material Adverse Effect on the Company”Agreement, disregarding all qualifications and exceptions except for those contained therein relating to materialityin Section 2.2, shall be true and correct as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (correct, except to the extent that such representations and warranties speak as the aggregate of another date, in which case such representations and warranties shall be true and correct as of such other date), except where the failure of such representations and warranties to be true and correct all breaches thereof would not, individually or in the aggregate, not have a Material Adverse Effect on the Company, and the representations and warranties of the Company contained in Section 2.2 shall be true and correct in all respects, in each case as of the date hereof and at and as of the Effective Time with the same effect as if made at and as of the Effective Time (except to the extent such representations specifically relate to an earlier date, in which case such representations shall be true and correct as of such earlier date and, in any event, subject to the foregoing Material Adverse Effect qualification) and, at the Closing, the Company shall have delivered to Parent and Acquisition a certificate to that effect, executed by two (2) executive officers of the Company; (b) each of the material covenants and obligations of the Company to be performed at or before the Effective Time pursuant to the terms of this Agreement shall have been duly performed in all material respects at or before the Effective Time and, at the Closing, the Company shall have delivered to Parent and Acquisition a certificate to that effect, executed by two (2) executive officers of the Company; (c) subject to each of the disclosures in the Company Disclosure Schedule, there shall not have been no occurred a Material Adverse Effect on the Company; (d) Parent shall have received a written the opinion of G▇▇▇▇▇, D▇▇▇ & C▇▇▇▇▇▇▇ LLP, tax counsel to Parent, Parent reasonably acceptable to Parent to the effect that (i) the Merger will constitute be treated for Federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code, Code and (ii) each of Parent, Acquisition and the Company will be a party to the reorganization within the meaning of Section 368(b) of the Code, which opinion may rely on representations substantially in the forms set forth in Exhibits A-1 and A-2 and such other representations as ------------ --- such counsel reasonably deems appropriate, and such opinion shall not have been withdrawn; provided, however, that if G▇▇▇▇▇, D▇▇▇ & C▇▇▇▇▇▇▇ LLP fails to deliver such opinion, then W▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & R▇▇▇▇▇, Professional Corporation, withdrawn or modified in any material respect; (e) Parent shall have received the opinion of legal counsel to the Company as to the matters set forth in Exhibit C; --------- (f) the Company shall have obtained the consent or approval of each person listed in Section 5.3(f) of the Company Disclosure Schedule whose consent or approval shall be required in order to permit the succession by the Surviving Corporation pursuant to the Merger to any agreement, instrument, obligation, right, permit or interest of the Company; (g) no more that three percent (3%) of the outstanding Shares shall be Dissenting Shares or other Shares with respect to which dissenter's rights have not been terminated; (h) All actions necessary for the termination of the SARSEP Plan and the termination or freezing of any other Employee Plan requested by Parent pursuant to Section 4.12 effective as of the Effective Date shall have occurred, without any continuing obligation on the part of the Company, may deliver such opinion in satisfaction of this closing condition; provided furtherParent or the Surviving Corporation, that any such opinion may rely on representations as such counsel reasonably deems appropriate and on typical assumptions. Parent, Acquisition, and the Company agree to provide to such counsel such representations as such counsel reasonably requests other than administrative matters in connection with rendering such opinionstermination or freezing; (i) All actions necessary for the termination of the agreements of the Company set forth in Section 4.14 shall have occurred; and (ej) in connection with The Company shall have delivered to Parent the compliance by Parent or Acquisition with any Applicable Law (including the HSR Act or any other material foreignFinal Audited Financial Statements, federal or state antitrust, competition or fair trade law), Parent and such Final Audited Financial Statements shall not be (i) required, or be construed to be required, to sell or divest disclose any assets or business or to restrict any business operations, or (ii) prohibited material adverse change from owning, the corresponding balance sheet and no limitation shall be imposed on Parent’s ownership of, any portion statement of earnings/operations included in the Company’s business or assetsFinancial Statements.

Conditions to the Obligations of Parent and Acquisition. The respective obligations of Parent and Acquisition to effect the Merger are subject to the satisfaction at or prior to the Effective Time Closing Date of the following conditions: (a) (i) each of the representations and warranties qualified by “Material Adverse Effect on the Company” shall be true and correct as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date, and (ii) each of the representations and warranties of the Company set forth contained in this Agreement (other than those contained in Section 2.2, as modified by Section 2.8(l) and issuances permitted pursuant to Section 4.1(a)(ii)), shall be true and correct (except to the extent that the aggregate of all breaches thereof, without regard to any materiality, knowledge or dollar qualifiers or thresholds, would not qualified by “have a Material Adverse Effect on the Company”, disregarding all qualifications and exceptions contained therein relating to materiality, shall be true and correct as of the date of this Agreement ) at and as of the Closing Date with the same effect as though if made on at and as of the Closing Date (except to the extent that such representations and warranties speak as of another specifically related to an earlier date, in which case such representations and warranties shall be true and correct as of such other earlier date), except where and in any event, subject to the failure of such representations and warranties to be true and correct would not, individually or in the aggregate, have a foregoing Material Adverse Effect on the Company qualification) and the representations and warranties of the Company contained in Section 2.2, as modified by Section 2.8(l) and issuances permitted pursuant to Section 4.1(a)(ii), shall be true and correct in all respects (except to the extent that the aggregate of all breaches thereof do not result in more than an additional 50,000 ordinary shares of the Company (including ordinary shares issuable upon exercise of options or restricted stock units of the Company) being outstanding) at and as of the Closing Date, and and, at the Closing, the Company shall have delivered to Parent and Acquisition a certificate to that effect, executed by two (2) executive officers of the Company; (b) each of the covenants and obligations of the Company to be performed at or before the Effective Time Closing Date pursuant to the terms of this Agreement shall have been duly performed in all material respects at or before the Effective Time Closing Date and, at the Closing, the Company shall have delivered to Parent and Acquisition a certificate to that effect, executed by two (2) executive officers of the Company; (c) subject to each of the disclosures in the Company Disclosure Schedule, there There shall have been no not occurred after the date of this Agreement a Material Adverse Effect on the Company; (d) Parent shall have received a written opinion of G▇▇▇▇▇▇, D▇▇▇ & C▇▇▇▇▇▇▇ LLP, or counsel to Parentthe Company shall have delivered to Parent its written opinion in substantially the form attached hereto as Exhibit B and which opinion shall not have been withdrawn or modified in any material respect, to the effect that (i) that the Merger will not constitute a reorganization within taxable event to the meaning of Section 368(a) of the CodeCompany, and (ii) confirming the receipt of all necessary government and other approvals to consummate the Merger and other transactions contemplated by this Agreement and that, among other matters, upon the taking of certain actions by the parties, the Merger will be effective under Israeli law; (e) The Company shall have obtained the consent or approval of each person whose consent or approval shall be required in order to permit the succession by the Surviving Company pursuant to the Merger to any obligation, right or interest of Parent, Acquisition and the Company will or any Subsidiary the agreements and instruments, set forth on Schedule 5.3(e); (f) (1) No fewer than 9 of the employees of the Company listed on Schedule 5.3(f)(1) shall continue to be a party employed in good standing by, and shall not have given formal notice to the reorganization within the meaning of Section 368(b) of the Code, and such opinion Company (which shall not have been withdrawn; provided) of their intention to terminate their employment with, however, that if G▇▇▇▇▇, D▇▇▇ & C▇▇▇▇▇▇▇ LLP fails to deliver such opinion, then W▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & R▇▇▇▇▇, Professional Corporation, counsel to the Company, may deliver such opinion in satisfaction of this closing condition; provided further, that any such opinion may rely on representations as such counsel reasonably deems appropriate and on typical assumptions. Parent, Acquisition, and the Company agree to provide to such counsel such representations as such counsel reasonably requests in connection with rendering such opinions; and (e) in connection with the compliance by Parent or Acquisition with any Applicable Law (including the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law), Parent shall not be (i) required, or be construed to be required, to sell or divest any assets or business or to restrict any business operations, or (ii) prohibited from owningSubsidiary, and no limitation fewer than 9 of the employees of the Company listed on Schedule 5.3(f)(1) shall be imposed on have executed Parent’s ownership of, any portion of the Company’s business or assets.standard form offer letter and proprietary inventions and confidentiality agreement;

Conditions to the Obligations of Parent and Acquisition. The respective obligations of Parent and Acquisition to effect the Merger are subject to the satisfaction at or prior to the Effective Time of each of the following conditions: (a) (i) each of the representations and warranties qualified by “Material Adverse Effect on the Company” shall be true and correct as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date, and (ii) each of the representations and warranties of the Company set forth contained in this Agreement and not qualified by “Material Adverse Effect on the Company”, disregarding all qualifications and exceptions contained therein relating to materiality, shall be true and correct as of the date of this Agreement at and as of the Closing Date Effective Time with the same effect as though if made on at and as of the Closing Date Effective Time (except to the extent that such representations and warranties speak as of another specifically related to an earlier date, in which case such representations and warranties shall be true and correct as of such other earlier date)) and, except where the failure of such representations and warranties to be true and correct would not, individually or in the aggregate, have a Material Adverse Effect on the Company, and at the Closing, the Company shall have delivered to Parent and Acquisition a certificate to that effect, executed by two (2) executive officers of the Company; (b) each of the covenants and obligations of the Company to be performed at or before the Effective Time pursuant to the terms of this Agreement shall have been duly performed in all material respects at or before the Effective Time and, at the Closing, the Company shall have delivered to Parent and Acquisition a certificate to that effect, executed by two (2) executive officers of the Company; (c) subject to each of the disclosures in the Company Disclosure Schedule, there shall have been no circumstances, changes in or effects on the Company or any of its subsidiaries that, individually or in the aggregate, have had or would reasonably be expected to have, a Material Adverse Effect on the Company; (d) Parent shall have received a written the opinion of G▇▇▇▇▇, D▇▇▇ & C▇▇▇▇▇▇▇ LLP, tax counsel to Parent, Parent to the effect that (i) the Merger will constitute be treated for Federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code, Code and (ii) each of Parent, Acquisition and the Company will be a party to the reorganization within the meaning of Section 368(b) of the Code, which opinion may rely on certificates of representations of the Company and Parent as such counsel reasonably deems appropriate, and such opinion shall not have been withdrawn; providedwithdrawn or modified in any material respect; (e) Parent shall have received the opinion of legal counsel to the Company as to the matters reasonably agreed upon by the parties; (f) the Company shall have obtained the consent or approval of each person whose consent or approval shall be required in order to permit the succession by the Surviving Corporation pursuant to the Merger to any obligation, howeverright or interest of the Company under the agreements and instruments set forth in Section 2.15 of the Company Disclosure Schedule; (g) the Company shall have obtained and delivered to Parent a consent/waiver from the Venture Banking Group, which provides that if Gthe Company will not be in default under the Loan and Security Agreement dated as of March 24, 2000 and its related documents in connection with the consummation of the Merger; (h) the shareholders of the Company identified on EXHIBIT F hereto shall have executed and delivered to Parent a Lock-Up Agreement substantially in the form of EXHIBIT G hereto; (i) Parent shall have received an executed employment agreement from ▇▇▇▇ ▇▇▇▇▇▇▇▇, D▇▇▇ & C▇▇▇▇▇▇▇ LLP fails Ph.D., and he shall remain an employee in good standing (which for these purposes means that he is not subject to deliver such opinion, then W▇▇▇▇▇ ▇termination by the Company under its employment policies in effect on the date of this Agreement) and shall not have expressed his intent not to continue his employment with Parent or the Surviving Corporation; (j) Parent shall have received an executed consultant letter agreement from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, and she shall remain a consultant in good standing (which for these purposes means that she is not subject to termination by the Company under its policies in effect on the date of this Agreement) and shall not have expressed her intent not to continue her consulting relationship with Parent or the Surviving Corporation; (k) Parent shall have received, in form satisfactory to Parent, from each of ▇▇▇▇ & R▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Professional Corporation, counsel a consent to terminate his/her employment agreement with the Company, may deliver such opinion both of which were entered into in satisfaction February, 1998; (l) Parent shall have received an executed Escrow Agreement substantially in the form of this closing condition; provided furtherEXHIBIT A hereto from the Company, that the Escrow Agent and the Securityholder Agent; (m) the Company shall have given written notice of the Merger and any such opinion may rely on representations other notice as required under the terms of the Company to the holders of the Company Stock Options and all such counsel reasonably deems appropriate notice periods shall have expired; (n) the Company shall have given written notice of the Merger and on typical assumptions. Parent, Acquisitionany such other notice as required under the terms of the Company to the holders of the Company Warrants and all such notice periods shall have expired, and either all Warrants shall have been exercised prior to the Effective Time or the Company agree shall have obtained from any holders of unexercised Warrants a consent to provide terminate such unexercised Warrants; (o) Parent shall have received from each shareholder of the Company an executed copy of the Shareholder Agreement substantially in the form attached hereto as EXHIBIT C; (p) no more than 5% of Shares outstanding immediately prior to such counsel such representations the Effective Time, including Shares underlying Company Stock Options and Warrants, shall be Dissenting Shares; (q) the amendment and restatement of the License and Requirements Agreement between CooperSurgical, Inc. and Parent (as such counsel reasonably requests described in connection Section 4.17 above) shall be effective in accordance with rendering such opinionsits terms; and (er) in connection with the compliance by Parent or Acquisition with any Applicable Law (including the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law), Parent shall not be (i) requiredhave received, in form satisfactory to Parent, from the Company, evidence that all agreements, including amendments and addendums thereto, whether written or be construed oral, pursuant to be requiredwhich ▇▇▇▇ ▇▇▇▇▇▇ has been providing or may continue to provide consulting or other professional services to the Company have been terminated and that neither Parent, the Surviving Company nor the Company have any obligations to sell or divest any assets or business or to restrict any business operations, or (ii) prohibited from owning, and no limitation shall be imposed on Parent’s ownership of, any portion commitments with ▇▇▇▇ ▇▇▇▇▇▇ as of the Company’s business or assetsClosing Date.