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

Conditions to the Obligations of Parent and Merger Subsidiary. The obligations of Parent and Merger Subsidiary to consummate the Merger are subject to the satisfaction (or, to the extent permissible, waiver by Parent) of the following further conditions: (a) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time; (b) (i) the representations and warranties of the Company contained in Section 4.05 (Capitalization) shall be true and correct in all respects, except for inaccuracies that are de minimis, at and as of the Effective Time as if made at and as of such time (or, in the case of those representations and warranties that are made as of a particular date or period, as of such date or period), (ii) the representations and warranties of the Company contained in Section 4.01 (Corporate Existence and Power), Section 4.02 (Corporate Authorization) and Section 4.10 (No Undisclosed Material Liabilities), shall be true and correct in all material respects at and as of the Effective Time as if made at and as of such time (or, in the case of those representations and warranties that are made as of a particular date or period, as of such date or period) and (iii) the other representations and warranties of the Company contained in this Agreement shall be true and correct (disregarding all qualifications or limitations as to “materially”, “Material Adverse Effect” and words of similar import set forth therein, other than in Section 4.08(a)) at and as of the Effective Time as if made at and as of such time (or, in the case of those representations and warranties that are made as of a particular date or period, as of such date or period), except where the failure of such representations and warranties to be so true and correct would not reasonably be expected to have, a Material Adverse Effect on the Company; (c) Parent shall have received a certificate signed by the chief executive officer or chief financial officer of the Company to the effect of clauses (a) and (b) above; and (d) since the date of this Agreement, there shall not have occurred and be continuing a Material Adverse Effect on the Company.

Conditions to the Obligations of Parent and Merger Subsidiary. The obligations respective obligation of Parent and Merger Subsidiary to consummate the Merger are is subject to the satisfaction or (or, to the extent permissible, permitted by Law) waiver in writing by Parent) Parent at or prior to the Effective Time of the following further conditions: (a) (i) the Company shall have performed and complied in all material respects with all of its obligations hereunder required to be performed by it or complied with at or prior to the Effective Time; Time (bor any such failure to perform or comply shall have been cured), (ii) (iA) the representations and warranties of the Company contained in Section 4.05 (Capitalization) 4.01, Section 4.02, Section 4.05(c), Section 4.05(d), Section 4.05(e), Section 4.05(f), Section 4.10(a)(ii), Section 4.23 and Section 4.25 shall be true and correct in all respects, except for inaccuracies that are de minimis, material respects both as of the date of this Agreement and at and as of the Effective Time as if made at and as of such time (or, in the case of those other than such representations and warranties that are made by their terms address matters only as of a particular date or periodanother specified time, which shall be true only as of such date or periodtime), (iiB) the representations and warranties of the Company contained in Section 4.01 (Corporate Existence and Power), Section 4.02 (Corporate Authorization4.05(a) and Section 4.10 (No Undisclosed Material Liabilities), 4.05(b) shall be true and correct in all material respects both as of the date of this Agreement and at and as of Effective Time as if made at and as of such time (other than representations and warranties that by their terms address matters only as of another specified time, which shall be true only as of such time), except for inaccuracies that are de minimis, and (C) the other representations and warranties of the Company contained in Article 4 (disregarding all materiality and Material Adverse Effect qualifications contained therein) shall be true both as of the date of this Agreement and at and as of the Effective Time as if made at and as of such time (orother than representations and warranties that by their terms address matters only as of another specified time, which shall be true only as of such time), with, in the case of those representations this clause (C) only, only such exceptions as have not had and warranties that are made as of a particular date or period, as of such date or period) and (iii) the other representations and warranties of the Company contained in this Agreement shall be true and correct (disregarding all qualifications or limitations as to “materially”, “Material Adverse Effect” and words of similar import set forth therein, other than in Section 4.08(a)) at and as of the Effective Time as if made at and as of such time (or, in the case of those representations and warranties that are made as of a particular date or period, as of such date or period), except where the failure of such representations and warranties to be so true and correct would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company; , and (ciii) Parent shall have received a certificate signed executed by the chief an executive officer or chief financial officer of the Company to the foregoing effect and with respect to the satisfaction of clauses (athe conditions set forth in Section 9.02(b) and Section 9.02(c). (b) above; and (d) since the date of this Agreement, there shall not have been or occurred and be continuing a any Material Adverse Effect on the Company; and (c) the TRA/LLCA Amendment shall be in full force and effect in accordance with its terms and otherwise shall not have been amended, repudiated, revoked or withdrawn.

Conditions to the Obligations of Parent and Merger Subsidiary. The obligations of Parent and Merger Subsidiary to consummate the Merger are subject to the satisfaction or waiver (or, to the extent permissible, waiver by Parentwhere permissible under Applicable Law) of the following further conditions: (a) (i) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time; , (bii) (iA) the representations and warranties of the Company contained in Section 4.05 (Capitalization) Sections ‎4.01 and ‎4.02 shall be true and correct in all respects, except for inaccuracies that are de minimis, at and as of the Effective Time as if made at and as of such time (or, in the case of those representations and warranties that are made as of a particular date or period, as of such date or period), (ii) the representations and warranties of the Company contained in Section 4.01 (Corporate Existence and Power), Section 4.02 (Corporate Authorization) and Section 4.10 (No Undisclosed Material Liabilities), shall be true and correct in all material respects at and as of the Effective Time as if made at and as of the Effective Time (other than such time (or, in the case of those representations and warranties that are made by their terms address matters only as of a particular date or periodanother specified time, which shall be true in all respects only as of such date or period) and time), (iiiB) the other representations and warranties of the Company contained in this Agreement the first two sentences of ‎Section 4.05(a), the first sentence of Section 4.05(b) and the first two sentences of Section 4.05(c) shall be true and correct in all respects (disregarding all qualifications or limitations as to “materially”, “Material Adverse Effect” and words of similar import set forth therein, other than in Section 4.08(a)except for de minimus inaccuracies) at and as of the Effective Time as if made at and as of the Effective Time (other than such time representations and warranties that by their terms address matters only as of another specified time, which shall be true in all respects only as of such time) and (orC) the other representations and warranties of the Company contained in this Agreement (disregarding all materiality and Company Material Adverse Effect qualifications contained therein) shall be true at and as of the Effective Time as if made at and as of the Effective Time (other than representations and warranties that by their terms address matters only as of another specified time, which shall be true only as of such time), except, in the case of those representations and warranties that are made as of a particular date or periodthis clause ‎(C) only, as of such date or period), except where the failure of such representations and warranties to be so true has not constituted and correct would not reasonably be expected to haveconstitute, individually or in the aggregate, a Company Material Adverse Effect on the Company; Effect, and (ciii) Parent shall have received a certificate signed by the chief an executive officer or chief financial officer of the Company to the effect of clauses (a) and (b) aboveforegoing effect; and (db) since the date of this Agreementhereof, there shall not have occurred and be continuing a Company Material Adverse Effect on the CompanyEffect.

Conditions to the Obligations of Parent and Merger Subsidiary. The obligations obligation of Parent and Merger Subsidiary to consummate the Merger are is further subject to the satisfaction (or, at or prior to the extent permissible, waiver by Parent) Effective Time of each of the following further conditions: (a) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time; (b) (i) the The representations and warranties of the Company contained set forth in Section (i) Article 4 (other than in Sections 4.01 (first sentence only), 4.02(a), 4.04(a), 4.05 (Capitalizationand 4.27) shall be true and correct both at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except where such failures to be so true and correct (without regard to “materiality,” Company Material Adverse Effect and similar qualifiers contained in all respectssuch representations and warranties) have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (ii) Section 4.05 shall be true and correct (without regard to “materiality,” Company Material Adverse Effect and similar qualifiers contained in such representations and warranties) at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except for inaccuracies that are de minimisnot material, at and as of the Effective Time as if made at and as of such time (or, in the case of those representations and warranties that are made as of a particular date or period, as of such date or periodiii) Sections 4.01 (first sentence only), (ii) the representations and warranties of the Company contained in Section 4.01 (Corporate Existence and Power4.02(a), Section 4.02 (Corporate Authorization) and Section 4.10 (No Undisclosed Material Liabilities4.04(a), and 4.27 shall be true and correct in all material respects at and as of the Effective Time date of this Agreement and at and as if of the Closing Date as though made at and as of such time (orthe Closing Date; provided, in the case of those however, that representations and warranties that are made as of a particular date or period, as of such date or period) and (iii) the other representations and warranties of the Company contained in this Agreement period shall be true and correct (disregarding all qualifications or limitations as to “materially”, “Material Adverse Effect” and words of similar import in the manner set forth thereinin clauses (i), other than in Section 4.08(a(ii) and (iii), as applicable) at and as of the Effective Time as if made at and as of such time (or, in the case of those representations and warranties that are made as of a particular date or period, only as of such date or and period), except where ; (b) the failure of such representations Company and warranties its Subsidiaries shall have performed and complied in all material respects with the covenants and obligations under this Agreement contemplated to be so true and correct would not reasonably be expected performed or complied with by the Company or its Subsidiaries prior to have, a Material Adverse Effect on the CompanyEffective Time; (c) Parent shall have received a certificate signed by the chief executive officer or chief financial officer of the Company to the effect of clauses (a) and (b) above; and (d) since the date of this Agreement, there shall not have occurred and been any Circumstances that have had, or would reasonably be continuing expected to have, individually or in the aggregate, a Company Material Adverse Effect on and that are continuing; (d) the Companyaggregate number of Dissenting Shares shall not equal or exceed 20% of the shares of Company Stock outstanding at the record date for the Company Stockholder Meeting; and (e) the Company shall have delivered to Parent a certificate signed by an executive officer of the Company dated as of the date of the Effective Time certifying that the conditions specified in Section 9.02(a), Section 9.02(b) and Section 9.02(c) have been satisfied.

Conditions to the Obligations of Parent and Merger Subsidiary. The obligations of Parent and Merger Subsidiary to consummate the Merger are subject to the satisfaction (or, to the extent permissible, or waiver by Parent) of the following further conditions: (a) (i) the Company shall have performed in all material respects all of its material obligations hereunder required to be performed by it at or prior to the Effective Time; , (bii) (iA) the representations and warranties of the Company contained in Sections 4.01, 4.02, 4.04(i), the first sentence and the last two sentences of Section 4.05 (Capitalization4.05(a) and the last sentence of 4.05(b), 4.07(l), 4.10(a)(ii), 4.23, 4.24 and 4.25 that are not qualified by materiality or Company Material Adverse Effect shall be true and correct in all respects, except for inaccuracies material respects and any such representations and warranties that are de minimis, qualified by materiality or Company Material Adverse Effect shall be true and correct at and as of the date of this Agreement and at and as of the Effective Time as if made at and as of such time (or, in the case of those other than any such representations and warranties that are made by their terms address matters only at and as of a particular date another specified time, which shall be true and correct in all material respects or periodtrue and correct, as the case may be, only at and as of such date or periodtime), (iiB) the representations and warranties of the Company contained in Section 4.01 4.05 (Corporate Existence other than the first sentence and Power), the last two sentences of Section 4.02 (Corporate Authorization4.05(a) and the last sentence of Section 4.10 (No Undisclosed Material Liabilities4.05(b), ) shall be true and correct in all material respects correct, subject only to de minimis exceptions, at and as of the date of this Agreement and at and as of the Effective Time as if made at and as of such time (or, in the case of those other than any such representations and warranties that are made by their terms address matters only at and as of a particular date or periodanother specified time, which shall be true and correct, subject only to de minimis exceptions, only at and as of such date or period) time), and (iiiC) the all other representations and warranties of the Company contained in this Agreement or in any certificate or other writing delivered by the Company pursuant hereto shall be true and correct (disregarding all qualifications or limitations as to “materially”, “materiality and Company Material Adverse Effect” Effect qualifications contained therein) at and words as of similar import set forth therein, other than in Section 4.08(a)) the date of this Agreement and at and as of the Effective Time as if made at and as of such time (orother than any such representations and warranties that by their terms address matters only as of another specified time, which shall be true and correct (disregarding all materiality and Company Material Adverse Effect qualifications contained therein) only at and as of such time), with, in the case of those representations this clause (C) only, only such exceptions as have not had and warranties that are made as of a particular date or period, as of such date or period), except where the failure of such representations and warranties to be so true and correct would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the Company; Effect; and (ciii) Parent shall have received a certificate signed by the chief an executive officer or chief financial officer of the Company to the foregoing effect of clauses (aand certifying that the condition set forth in Section 9.02(c) and has been satisfied; (b) aboveParent shall have received the opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, 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 Subsidiary 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(b) of the Code, which opinion shall not have been withdrawn or modified in any material respect. In rendering the opinion described in this Section 9.02(b), ▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇▇▇ LLP shall have received and may rely upon the Tax Representation Letters referred to in Section 8.07(b) hereof; and (dc) since the date of this Agreementhereof, there shall not have occurred and be continuing any event, occurrence, development or state of circumstances or facts which, individually or in the aggregate, has had or would reasonably be expected to have a Company Material Adverse Effect on the CompanyEffect.

Conditions to the Obligations of Parent and Merger Subsidiary. The obligations of Parent and Merger Subsidiary to consummate the Merger are subject to the satisfaction (or, to the extent permissiblepermitted by Applicable Law, waiver by Parent) of the following further conditions: (a) (i) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time; , (bii) (iA) the representations and warranties of the Company contained in any of Section 4.05 (Capitalization4.01, Section 4.02, Section 4.05(a), Section 4.05(b) or Section 4.20 shall be true and correct in all respects, except for inaccuracies that are de minimis, at and as of the Effective Time as if made at and as of such time (or, in the case of those representations and warranties that are made as of a particular date or period, as of such date or period), (ii) the representations and warranties of the Company contained in Section 4.01 (Corporate Existence and Power), Section 4.02 (Corporate Authorization) and Section 4.10 (No Undisclosed Material Liabilities), shall be true and correct in all material respects at and as of the Effective Time as if made at and as of such time (or, in the case of those representations other than any such representation and warranties warranty that are made by its terms addresses matters only as of a particular date or periodanother specified time, which shall be true in all material respects only as of such date or periodtime) and (iiiB) the other representations and warranties of the Company contained in this Agreement or in any certificate or other writing delivered by the Company pursuant hereto (disregarding all materiality and Material Adverse Effect qualifications contained therein) shall be true and correct (disregarding all qualifications or limitations as to “materially”, “Material Adverse Effect” and words of similar import set forth therein, other than in Section 4.08(a)) at and as of the Effective Time as if made at and as of such time (orother than any such representation and warranty that by its terms addresses matters only as of another specified time, which shall be true only as of such time), with, in the case of those representations this clause (B) only, only such exceptions as have not had and warranties that are made as of a particular date or period, as of such date or period), except where the failure of such representations and warranties to be so true and correct would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company; , and (ciii) Parent shall have received a certificate signed by the chief an executive officer or chief financial officer of the Company to the effect of clauses (a) and (b) aboveforegoing effect; and (db) there shall not have occurred since the date of this AgreementAgreement any event, there shall not occurrence, revelation or development of a state of circumstances or facts which, individually or in the aggregate, has had or would reasonably be expected to have occurred and be continuing a Material Adverse Effect on the Company.

Conditions to the Obligations of Parent and Merger Subsidiary. The obligations of Parent and Merger Subsidiary to consummate the Merger are further subject to the satisfaction or (or, to the extent permissible, where permitted by Applicable Law) written waiver by Parent) Parent of the following further conditions: (a) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time; (b) (i) Each of the representations and warranties of the Company contained in Section 4.05 (Capitalization) 4.01(a), Section 4.02, Section 4.05(a), Section 4.05(b), Section 4.06(a), Section 4.10(b), Section 4.24, and Section 4.25 shall be true and correct in all respects, respects (except for inaccuracies that are de minimis, at and as of the Effective Time as if made at and as of such time (or, in the case of those representations and warranties that are made as of a particular date or period, as of such date or period), (ii) the representations and warranties of the Company contained in Section 4.01 (Corporate Existence and Power), Section 4.02 (Corporate Authorization4.05(a) and Section 4.10 (No Undisclosed Material Liabilities), 4.05(b) which shall be true and correct in all material respects at except for any de minimis inaccuracy) as of the date of this Agreement and as of the Effective Time Closing Date with the same force and effect as if made at on and as of such time date (or, in the case of those representations other than any such representation and warranties warranty that are made by its terms addresses matters only as of a particular date or periodanother specified time, which shall be true and correct in all respects (except for Section 4.05(a) and Section 4.05(b), which shall be true and correct in all respects except for any de minimis inaccuracy) as of such date or period) specified time); and (iiiii) each of the other representations and warranties of the Company contained in this Agreement (disregarding all materiality and Material Adverse Effect qualifications contained therein) shall be true and correct (disregarding all qualifications or limitations as to “materially”, “Material Adverse Effect” and words of similar import set forth therein, other than in Section 4.08(a)) at the date of this Agreement and as of the Effective Time Closing Date with the same force and effect as if made at on and as of such time date (orother than any such representation and warranty that by its terms addresses matters only as of another specified time, which shall be true and correct as of such specified time), except, in the case of those representations and warranties that are made as of a particular date or period, as of such date or periodthis clause (ii), except where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company;. (b) The Company shall have performed and complied in all material respects with the agreements and covenants required by this Agreement to be performed or complied with by it at or prior to the Effective Time. (c) Parent shall have received a certificate signed by the chief executive officer or chief financial officer of the Company to the effect of clauses (a) and (b) above; and (d) since Since the date of this Agreement, there shall not have occurred and be continuing a any Material Adverse Effect on the CompanyCompany described in clause (a)(ii) of the definition of Material Adverse Effect that is continuing. (d) The Company shall have delivered to Parent a certificate signed by an executive officer of the Company and dated as of the Closing Date certifying as to the satisfaction of the conditions specified in Section 9.02(a), Section 9.02(b) and Section 9.02(c).

Conditions to the Obligations of Parent and Merger Subsidiary. The respective obligations of Parent and Merger Subsidiary to consummate the Merger are subject to the satisfaction or (or, to the extent permissible, permitted by Applicable Law) waiver by Parent) at or prior to the Effective Time of the following further conditions: (a) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time; (b) (i) the representations and warranties of the Company contained (other than the representations set forth in Section 4.05 (Capitalization4.01, Section 4.02, Section 4.05(a), Section 4.05(b), Section 4.24, Section 4.26 and Section 4.27) set forth herein shall be true and correct in all respects (without giving effect to any limitation indicated by the words or phrases “Company Material Adverse Effect,” “in all material respects, except for inaccuracies that are de minimis, ,” “material,” or “materially” in such representations or warranties) as of the date of this Agreement and at and as of the Effective Time Closing Date as if made at and as of such time (or, in the case of except those representations and warranties that are made expressly address matters only as of a particular date or periodearlier date, in which case as of such date or period), (ii) the representations and warranties of the Company contained in Section 4.01 (Corporate Existence and Power), Section 4.02 (Corporate Authorization) and Section 4.10 (No Undisclosed Material Liabilities), shall be true and correct in all material respects at and as of the Effective Time as if made at and as of such time (or, in the case of those representations and warranties that are made as of a particular date or period, as of such date or period) and (iii) the other representations and warranties of the Company contained in this Agreement shall be true and correct (disregarding all qualifications or limitations as to “materially”, “Material Adverse Effect” and words of similar import set forth therein, other than in Section 4.08(a)) at and as of the Effective Time as if made at and as of such time (or, in the case of those representations and warranties that are made as of a particular date or period, as of such date or perioddate), except where the failure of such representations and warranties to be so true and correct would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on Effect, (ii) the Companyrepresentations and warranties of the Company contained in Section 4.05(a) and Section 4.05(b) shall be true and correct (other than de minimis inaccuracies) 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 those representations and warranties that expressly address matters only as of a particular earlier date, in which case as of that date), (iii) the representations and warranties contained in Section 4.01, Section 4.02, Section 4.24 and Section 4.27 shall be true and correct in all material respects 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 those representations and warranties that expressly address matters only as of a particular earlier date, in which case as of that date) and (iv) the representations and warranties contained in Section 4.26 shall be true and correct in all respects as of the date of this Agreement and at and as of the Closing Date as if made at and as of such time; (c) Parent since the date of this Agreement there shall not have occurred a Company Material Adverse Effect; and (d) the Company shall have received delivered to Parent a certificate certificate, dated the Closing Date, and signed by the chief executive officer or chief financial other senior officer of the Company Company, certifying to the effect of clauses (athat the conditions set forth in Sections 9.02(a), 9.02(b) and (b9.02(c) above; and (d) since the date of this Agreement, there shall not have occurred and be continuing a Material Adverse Effect on the Companybeen satisfied.

Conditions to the Obligations of Parent and Merger Subsidiary. The obligations respective obligation of Parent and Merger Subsidiary to consummate the Merger are is subject to the satisfaction or (or, to the extent permissible, permitted by Applicable Law) waiver in writing by Parent) Parent at or prior to the Effective Time of the following further conditions: (ai) the Company shall have performed and complied in all material respects with all of its obligations hereunder required to be performed by it or complied with at or prior to the Effective Time;Time (or any such failure to perform or comply shall have been cured); and (bii) (iA) the representations and warranties of the Company contained in Section 4.05 (Capitalization4.10(a)(ii) shall be true and correct in all respectsrespects at and as of the date of this Agreement, (B) the representations and warranties of the Company contained in Section 4.01(a), Section 4.02, Section 4.24 and Section 4.26 shall be true in all material respects at and as of the date of this Agreement and as of Effective Time as if made at and as of such time (other than representations and warranties that by their terms address matters only as of another specified time, which shall be true in all material respects only as of such time), (C) the representations and warranties of the Company contained in Section 4.05(a) and the first sentence of Section 4.05(d) shall be true in all respects at and as of the date of this Agreement and as of Effective Time as if made at and as of such time (other than representations and warranties that by their terms address matters only as of another specified time, which shall be true only as of such time), except for inaccuracies that are de minimis, minimis relative to the total fully-diluted equity capitalization of the Company and (D) the other representations and warranties of the Company contained in Article 4 (disregarding all materiality and Material Adverse Effect qualifications contained therein) shall be true at and as of the date of this Agreement and as of the Effective Time as if made at and as of such time (orother than representations and warranties that by their terms address matters only as of another specified time, which shall be true only as of such time), with, in the case of those representations this clause (D) only, only such exceptions as have not had and warranties that are made as of a particular date or period, as of such date or period), (ii) the representations and warranties of the Company contained in Section 4.01 (Corporate Existence and Power), Section 4.02 (Corporate Authorization) and Section 4.10 (No Undisclosed Material Liabilities), shall be true and correct in all material respects at and as of the Effective Time as if made at and as of such time (or, in the case of those representations and warranties that are made as of a particular date or period, as of such date or period) and (iii) the other representations and warranties of the Company contained in this Agreement shall be true and correct (disregarding all qualifications or limitations as to “materially”, “Material Adverse Effect” and words of similar import set forth therein, other than in Section 4.08(a)) at and as of the Effective Time as if made at and as of such time (or, in the case of those representations and warranties that are made as of a particular date or period, as of such date or period), except where the failure of such representations and warranties to be so true and correct would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company;; and (ciii) Parent shall have received a certificate signed by the chief an executive officer or chief financial officer of the Company to the effect of clauses (a) and that the conditions set forth in this Section 9.02 have been satisfied. (b) above; and (d) since Since the date of this Agreement, there shall not have occurred and be continuing a no Material Adverse Effect on shall have occurred that is continuing. (c) The Exchange and Redemption shall have occurred such that 100% of the Companyequity interests in OpCo LLC are owned of record and held directly or indirectly by the Company and no shares of Class B Common Stock remain outstanding.

Conditions to the Obligations of Parent and Merger Subsidiary. The obligations obligation of Parent and Merger Subsidiary to consummate the Merger are is further subject to the satisfaction (or, at or prior to the extent permissible, waiver by Parent) Effective Time of each of the following further conditions: (a) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time; (b) (i) the The representations and warranties of the Company contained set forth in Section 4.05 (Capitalizationi) Article 4 (other than in Sections 4.01 (first sentence only), 4.02(a), 4.04(a), 4.05, 4.09, 4.27, 4.29 and 4.30) shall be true and correct both at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except where such failures to be so true and correct (without regard to “materiality,” Company Material Adverse Effect and similar qualifiers contained in all respectssuch representations and warranties) have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (ii) Section 4.05 shall be true and correct (without regard to “materiality,” Company Material Adverse Effect and similar qualifiers contained in such representations and warranties) at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except for inaccuracies that are de minimis, at and as of the Effective Time as if made at and as of such time (or, in the case of those representations and warranties that are made as of a particular date or period, as of such date or period)not material, (iiiii) the representations and warranties of the Company contained in Section Sections 4.01 (Corporate Existence and Power), Section 4.02 (Corporate Authorizationfirst sentence only) and Section 4.10 (No Undisclosed Material Liabilities), 4.04(a) shall be true and correct in all material respects at and as of the Effective Time date of this Agreement and at and as if of the Closing Date as though made at and as of the Closing Date, (iv) Section 4.02(a) shall be true and correct in all material respects at and as of the date of this Agreement and as of the date immediately preceding the date of this Amended and Restated Merger Agreement, (v) Sections 4.27 and 4.29 shall be true and correct in all material respects at and as of the date of this Amended and Restated Merger Agreement and at and as of the Closing Date as though made at and as of the Closing Date and (vi) Sections 4.09 and 4.30 shall be true and correct both at and as of the date of this Amended and Restated Merger Agreement and at and as of the Closing Date, except where such time failures to be so true and correct (orwithout regard to “materiality,” Company Material Adverse Effect and similar qualifiers contained in such representations and warranties) have not had, and would not reasonably be expected to have, individually or in the case of those aggregate, a Company Material Adverse Effect ; provided, however, that representations and warranties that are made as of a particular date or period, as of such date or period) and (iii) the other representations and warranties of the Company contained in this Agreement period shall be true and correct (disregarding all qualifications or limitations as to “materially”, “Material Adverse Effect” and words of similar import in the manner set forth thereinin clauses (i), other than in Section 4.08(a(ii), (iii), (iv), (v) at and (vi) as of the Effective Time as if made at and as of such time (or, in the case of those representations and warranties that are made as of a particular date or period, applicable) only as of such date or and period), except where ; (b) the failure of such representations Company and warranties its Subsidiaries shall have performed and complied in all material respects with the covenants and obligations under this Agreement contemplated to be so true and correct would not reasonably be expected performed or complied with by the Company or its Subsidiaries prior to have, a Material Adverse Effect on the CompanyEffective Time; (c) Parent shall have received a certificate signed by the chief executive officer or chief financial officer of the Company to the effect of clauses (a) and (b) above; and (d) since the date of this Agreement, there shall not have occurred and been any Circumstances that have had, or would reasonably be continuing expected to have, individually or in the aggregate, a Company Material Adverse Effect on and that are continuing; (d) the Companyaggregate number of Dissenting Shares shall not equal or exceed 20% of the shares of Company Stock outstanding at the record date for the Company Stockholder Meeting; and (e) the Company shall have delivered to Parent a certificate signed by an executive officer of the Company dated as of the date of the Effective Time certifying that the conditions specified in Section 9.02(a), Section 9.02(b) and Section 9.02(c) have been satisfied.

Conditions to the Obligations of Parent and Merger Subsidiary. The obligations of Parent and Merger Subsidiary to consummate the Merger are subject to the satisfaction (or, to the extent permissiblepermitted by Applicable Law, waiver by Parent) of the following further conditions: (a) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time; (b) (i) the representations and warranties of the Company contained set forth in Section 4.05 4.01 (Capitalization) other than the second sentence thereof), Section 4.02, Section 4.04(i), Section 4.06(b), Section 4.26, Section 4.27 and Section 4.28 shall be true and correct in all respects, except for inaccuracies that are de minimis, material respects at and as of the date of this Agreement and at and as of the Effective Time as if made at and as of such time (or, in the case of those other than any such representations and warranties that are made by their terms address matters only as of a particular date or periodanother specified time, which shall be true and correct in all material respects only at and as of such date or periodtime), ; (ii) the representations and warranties of the Company contained set forth in Section 4.01 (Corporate Existence and Power), Section 4.02 (Corporate Authorization) and Section 4.10 (No Undisclosed Material Liabilities), 4.05 shall be true and correct in all material respects correct, subject only to de minimis exceptions, at and as of the date of this Agreement and at and as of the Effective Time as if made at and as of such time (or, in the case of those other than any such representations and warranties that are made by their terms address matters only as of a particular date or periodanother specified time, which shall be true and correct, subject only to de minimis exceptions, only at and as of such date or period) and time); (iii) the representation and warranty of the Company set forth in the first sentence of Section 4.13 shall be true and correct at and as of the date of this Agreement and at and as of the Effective Time as if made at and as of such time; and (iv) all other representations and warranties of the Company contained set forth in this Agreement shall be true and correct (disregarding all qualifications without regard to materiality or limitations as to “materially”, “Material Adverse Effect” Effect qualifiers contained therein) at and words as of similar import set forth therein, other than in Section 4.08(a)) the date of this Agreement and at and as of the Effective Time as if made at and as of such time (orother than any such representations and warranties that by their terms address matters only as of another specified time, which shall be true and correct (without regard to materiality or Material Adverse Effect qualifiers contained therein) only at and as of such time), except, in the case of those representations and warranties that are made as of a particular date or periodthis clause (iv) only, as of such date or period), except where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company; (c) Parent shall have received a certificate signed by the chief from an executive officer or chief financial officer of the Company to confirming the effect satisfaction of clauses (athe conditions set forth in Sections 9.02(a) and (b) above9.02(b); and (d) since both (i) the date early termination or expiration of this Agreement, there the waiting period required under the HSR Act shall not have occurred and (ii) the Required Governmental Authorizations set forth in Section 9.03(d) of the Company Disclosure Schedule shall have been made or obtained and shall be continuing in full force and effect and shall not impose any term or condition that would have or would reasonably be expected to have, individually or in the aggregate, a Regulatory Material Adverse Effect on Parent or the Company.

Conditions to the Obligations of Parent and Merger Subsidiary. The obligations of Parent and Merger Subsidiary to consummate the Merger are subject to the satisfaction (or, to the extent permissible, waiver by Parent) of the following further conditions: (a) (i) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time; , (bii) (iA) the representations and warranties of the Company contained in Section 4.05 (Capitalization) shall be true and correct in all respects, respects (except for such inaccuracies that as are de minimis, minimis relative to Section 4.05 taken as a whole) at and as of the Effective Time as if made at and as of such time (or, in the case of those other than such representations and warranties that are made by their terms address matters only as of a particular date or periodanother specified time, which shall be true in all respects only as of such date or periodtime), (iiB) the representations and warranties of the Company contained in Section 4.01 (Corporate Existence Sections 4.01, 4.02, 4.21, 4.22 and Power), Section 4.02 (Corporate Authorization) and Section 4.10 (No Undisclosed Material Liabilities), 4.23 shall be true and correct in all material respects at and as of the Effective Time as if made at and as of such time (or, in the case of those other than such representations and warranties that are made by their terms address matters only as of a particular date or periodanother specified time, which shall be true in all material respects only as of such date or periodtime) and (iiiC) the other representations and warranties of the Company contained in this Agreement or in any certificate or other writing delivered by the Company pursuant hereto (disregarding all materiality and Material Adverse Effect qualifications contained therein) shall be true and correct (disregarding all qualifications or limitations as to “materially”, “Material Adverse Effect” and words of similar import set forth therein, other than in Section 4.08(a)) at and as of the Effective Time as if made at and as of such time (orother than representations and warranties that by their terms address matters only as of another specified time, which shall be true only as of such time), with, in the case of those representations this clause (C) only, only such exceptions as have not had and warranties that are made as of a particular date or period, as of such date or period), except where the failure of such representations and warranties to be so true and correct would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company; ; and (c) iii). Parent shall have received a certificate signed by the chief an executive officer or chief financial officer of the Company to the effect of clauses (a) and foregoing effect; (b) abovethere shall not be pending any action or proceeding by any Governmental Authority, (i) challenging or seeking to make illegal, to delay materially or otherwise directly or indirectly to restrain or prohibit the consummation of the Merger, seeking to obtain material damages or otherwise directly or indirectly relating to the transactions contemplated by the Merger, (ii) seeking to restrain or prohibit Parent’s, Merger Subsidiary’s or any of Parent’s other Affiliates’ (A) ability effectively to exercise full rights of ownership of the Company’s capital stock, including the right to vote any shares of the Company’s capital stock acquired or owned by Parent, Merger Subsidiary or any of Parent’s other Affiliates following the Effective Time on all matters properly presented to the Company’s stockholders, or (B) ability to effectively exercise full rights of ownership or operation (or that of its respective Subsidiaries or Affiliates) of any material business or assets of the Company and its Subsidiaries, or of Parent and its Subsidiaries or (iii) seeking to compel Parent or any of its Subsidiaries or Affiliates to dispose of or hold separate all or any of any material business or assets of the Company and its Subsidiaries or of Parent and its Subsidiaries, or (iv) that would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company (or, following the Effective Time, the Surviving Entity) or Parent; (c) there shall not have been any action taken, or any Applicable Law enacted, enforced, promulgated, issued or deemed applicable to the Merger, by any Governmental Authority, other than the application of the waiting period provisions of the HSR Act to the Merger, that would reasonably be expected to, individually or in the aggregate, result in any of the consequences referred to in clauses (i) through (iv) of Section 9.02(b); (d) Parent shall have received an opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ llp in form and substance reasonably satisfactory to Parent, on the basis of certain facts, representations and assumptions set forth in such opinion, dated the Effective Time, to the effect that the Merger will be treated for federal income tax purposes as a reorganization qualifying under the provision of Section 368(a) of the Code and that each of Parent, Merger Subsidiary and the Company will be a party to the reorganization within the meaning of Section 368(b) of the Code. In rendering such opinion, D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ llp shall be entitled to rely upon representations of officers of Parent and the Company substantially in the form of Exhibits A and B hereto; and (de) since from the date of this AgreementAgreement to the Effective Time, there shall not have occurred and be continuing any event, occurrence, development or state of circumstances or facts which, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect on the Company.

Conditions to the Obligations of Parent and Merger Subsidiary. The obligations of Parent and Merger Subsidiary to consummate the Merger are subject to the satisfaction or waiver (or, to the extent permissible, waiver by Parentwhere permissible under Applicable Law) of the following further conditions: (a) (i) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time; , (bii) (iA) the representations and warranties of the Company contained in Section Sections 4.05 (Capitalization) shall be true and correct in all respects, except for inaccuracies that are respects (other than de minimis, minimis exceptions) at and as of the Effective Time as if made at and as of such time (or, in the case of those representations and warranties that are made as of a particular date or period, as of such date or period)time, (iiB) the representations and warranties of the Company contained in the first and third sentences of Section 4.01 (Corporate Existence and Power), Section 4.02 (Corporate Authorization), Section 4.20 (Finders’ Fees), Section 4.21 (Opinion of Financial Advisor) and Section 4.10 4.22 (No Undisclosed Material Liabilities), Antitakeover Statutes) shall be true and correct in all material respects at and as of the Effective Time as if made at and as of such time (or, in the case of those other than such representations and warranties that are made by their terms address matters only as of a particular date or periodanother specified time, which shall be true in all material respects only as of such date or periodtime) and (iiiC) the other representations and warranties of the Company contained in this Agreement or in any certificate or other writing delivered by the Company pursuant hereto (disregarding all materiality and Company Material Adverse Effect qualifications contained therein) shall be true and correct (disregarding all qualifications or limitations as to “materially”, “Material Adverse Effect” and words of similar import set forth therein, other than in Section 4.08(a)) at and as of the Effective Time as if made at and as of such time (orother than representations and warranties that by their terms address matters only as of another specified time, which shall be true only as of such time), with, in the case of those representations this clause (C) only, only such exceptions as have not had and warranties that are made as of a particular date or period, as of such date or period), except where the failure of such representations and warranties to be so true and correct would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the Company; Effect; and (ciii) Parent shall have received a certificate signed by the chief an executive officer or chief financial officer of the Company to the effect of clauses (a) and (b) aboveforegoing effect; and (db) since the date of this Agreement, there shall not have occurred and any event or occurrence or development of a circumstance, in each case arising after the date hereof which, individually or in the aggregate, has had or would reasonably be continuing expected to have a Company Material Adverse Effect on the CompanyEffect.

Conditions to the Obligations of Parent and Merger Subsidiary. The obligations obligation of Parent and Merger Subsidiary to consummate the Merger are is further subject to the satisfaction (or, to the extent permissible, waiver by Parent) of the following further conditions: (a) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time;Time of each of the following conditions: (b) (i) the The representations and warranties of the Company contained set forth in Section 4.05 each of Sections 4.01 (CapitalizationCorporate Existence and Power), 4.02 (Corporate Authorization), 4.05(c) (Capitalization – No Hook Stock), 4.10(iii) (Absence of Certain Changes – No Material Adverse Effect), 4.21 (Finders’ Fees) and 4.23 (Antitakeover Laws) shall be true and correct in all respects, except for inaccuracies that are de minimis, at and respects as of the Effective Time Closing Date with the same force and effect as if made at on and as of such time (or, in the case of those representations and warranties that are made as of a particular date or period, as of such date or period)date, (ii) the representations and warranties of the Company contained set forth in the first and second sentences of Section 4.01 (Corporate Existence and Power), Section 4.02 (Corporate Authorization4.05(a) and the second and third sentences of Section 4.10 4.05(b) (No Undisclosed Capitalization) shall be true and correct (disregarding all materiality and Company Material LiabilitiesAdverse Effect qualifications and exceptions contained therein) in all respects (except for such inaccuracies that do not result in additional consideration to be payable by Parent or the Surviving Corporation pursuant to Section 2.02 or Section 2.05 in excess of a de minimis amount) as of the Closing Date with the same force and effect as if made on and as of such date (except to the extent such representations and warranties are made as of a specific date or time, which representations and warranties shall have been so true and correct as of such date and time) and (iii) the representations and warranties of the Company set forth in this Agreement, other than those specified in the foregoing clauses (i) and (ii), shall be true and correct in (disregarding all material respects at materiality and Company Material Adverse Effect qualifications and exceptions contained therein) on and as of the Effective Time Closing Date with the same force and effect as if made at on and as of such time date (or, in the case of those except for representations and warranties that are made as of a particular specific date or periodtime, which representations and warranties shall have been true and correct as of such date or periodand time) and (iii) the other representations and warranties of the Company contained in this Agreement shall be true and correct (disregarding all qualifications or limitations as to “materially”, “Material Adverse Effect” and words of similar import set forth therein, other than in Section 4.08(a)) at and as of the Effective Time as if made at and as of such time (or, in the case of those representations and warranties that are made as of a particular date or period, as of such date or period), except where the for any failure of such representations and warranties to be so true and correct which has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on Effect; (b) the CompanyCompany shall not have breached or failed to perform in all material respects all of its obligations under this Agreement contemplated to be performed prior to the Effective Time; (c) Parent shall have received a certificate signed by Since the chief executive officer or chief financial officer of the Company date hereof and prior to the effect Closing there shall not have occurred any change, effect, event, development, occurrence, circumstance or state of clauses (a) and (b) abovefacts that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; and (d) since the Company shall have delivered to Parent a certificate signed by an executive officer of the Company dated as of the date of this Agreement, there shall not the Effective Time certifying that the conditions specified in Section 9.02(a) and Section 9.02(b) have occurred and be continuing a Material Adverse Effect on the Companybeen satisfied.

Conditions to the Obligations of Parent and Merger Subsidiary. The obligations of Parent and Merger Subsidiary to consummate the Merger are subject to the satisfaction (or, to the extent permissible, waiver by Parent) of the following further conditions: (ai) the The Company shall have performed in all material respects all of its the obligations hereunder pursuant to this Agreement required to be performed by it such Person at or prior to the Effective Time; (b) (i) the representations and warranties of the Company contained in Section 4.05 (Capitalization) shall be true and correct in all respects, except for inaccuracies that are de minimis, at and as of the Effective Time as if made at and as of such time (or, in the case of those representations and warranties that are made as of a particular date or period, as of such date or period)Closing Date, (ii) the representations and warranties of the Company contained in Section 4.01 this Agreement (Corporate Existence other than under Sections 4.02, 4.05 and Power4.09(a), Section 4.02 (Corporate Authorization) and Section 4.10 any certificate or other writing delivered by the Company pursuant hereto (No Undisclosed A) that are qualified by materiality or Company Material Liabilities)Adverse Effect shall be true and correct as of the Closing Date (other than such representations and warranties that are made as of a specified date, which representations and warranties shall be true and correct as of such date) and (B) that are not qualified by materiality or Company Material Adverse Effect shall be true and correct in all material respects at and as of the Effective Time as if made at and as of Closing Date (other than such time (or, in the case of those representations and warranties that are made as of a particular date or periodspecified date, which representations and warranties shall be true and correct in all material respects as of such date or period) date), and (iii) the other representations and warranties of the Company contained set forth in this Agreement Sections 4.02, 4.05 and 4.09(a) shall be true and correct (disregarding in all qualifications or limitations as to “materially”, “Material Adverse Effect” and words of similar import set forth therein, other than in Section 4.08(a)) at and respects as of the Effective Time as if made at and as of Closing Date (other than such time (or, in the case of those representations and warranties that are made as of a particular date or periodspecified date, which representations and warranties shall be true and correct in all respects as of such date or perioddate). (b) The Company shall have obtained each consent identified in Section 8.01(b) of the Company Disclosure Schedule, except where the failure of in each case in form and substance reasonably satisfactory to Parent, and no such representations and warranties to be so true and correct would not reasonably be expected to have, a Material Adverse Effect on the Company;consent shall have been revoked. (c) The Company shall have delivered to Parent a certificate of the Company, executed by the Chief Executive Officer of the Company, that each of the conditions set forth in Section 8.01(a) and Section 8.01(b) has been satisfied. (d) Parent shall have received all of the Key Employee Agreements, and all such agreements shall be in full force and effect and none of the Key Employees shall have revoked his or her acceptance of employment with Parent or otherwise communicated to Parent his or her intention not to commence employment with Parent or continue employment with the Company, as applicable, following the Closing Date. (e) Parent shall have received resignation letters executed and delivered by the directors and corporate officers of the Company as have been identified by Parent prior to the Closing Date. (f) The Company shall have delivered to Parent (i) a certificate certification, signed by the chief executive officer or chief financial officer Company and dated not more than 30 days prior to the Closing Date that satisfies the requirements of Treasury Regulation Sections 1.897-2(h) and 1.1445-2(c)(3) and confirms that the Company is not, nor has it been within five years of the date of the certification, a “United States real property holding corporation” as defined in Section 897 of the Code and (ii) a notice to the Internal Revenue Service, signed by the Company, that satisfies the requirements of Treasury Regulation Section 1.897-2(h)(2). (g) Parent shall have received evidence reasonably satisfactory to Parent that the Company Board approved the treatment of the Company to the effect of clauses (aOptions in accordance with Section 2.03(c) and (b) above; and (d) since the date of this Agreement, there shall not have occurred and be continuing a Material Adverse Effect on the Companyhereof.

Conditions to the Obligations of Parent and Merger Subsidiary. The obligations respective obligation of Parent and Merger Subsidiary to consummate the Merger are is subject to the satisfaction or (or, to the extent permissible, permitted by Applicable Law) waiver by Parent) at or prior to the Effective Time of the following further conditions: (a) (i) the Company shall have performed or complied with, in all material respects respects, all of its obligations hereunder required to be performed by it at or prior to the Effective Time; , (bii) (iA) the representations and warranties of the Company contained in Section 4.05 (Capitalization4.10(a) shall be true and correct in all respectsrespects as of the date of this Agreement and at and as of the Effective Time as if made at and as of such time, except for inaccuracies that are de minimis(B) the representations and warranties of the Company contained in Section 4.01(a), Section 4.02, Section 4.24 and Section 4.26 (disregarding all materiality and Material Adverse Effect qualifications contained therein) shall be true in all material respects as of the date of this Agreement and at and as of the Effective Time as if made at and as of such time (or, in the case of those other than such representations and warranties that are made by their terms address matters only as of a particular date or periodanother specified time, which shall be true only as of such date or periodtime), (iiC) the representations and warranties of the Company contained set forth in Section 4.01 4.05 (Corporate Existence disregarding all materiality and Power), Section 4.02 (Corporate AuthorizationMaterial Adverse Effect qualifications contained therein) and Section 4.10 (No Undisclosed Material Liabilities), shall be true and correct in all material but de minimis respects as of the date of this Agreement and as of the Effective Time as if at and as of such time (other than such representations and warranties that by their terms address matters only as of another specified time, which shall be true only as of such time), and (D) the other representations and warranties of the Company contained in Article 4 (disregarding all materiality and Material Adverse Effect qualifications contained therein) shall be true and correct as of the date of this Agreement and at and as of the Effective Time as if made at and as of such time (orother than representations and warranties that by their terms address matters only as of another specified time, which shall be true only as of such time), with, in the case of those representations and warranties that are made this clause (D) only, only such exceptions as of a particular date would not have, individually or period, as of such date or period) and (iii) the other representations and warranties of the Company contained in this Agreement shall be true and correct (disregarding all qualifications or limitations as to “materially”, “Material Adverse Effect” and words of similar import set forth therein, other than in Section 4.08(a)) at and as of the Effective Time as if made at and as of such time (or, in the case of those representations and warranties that are made as of a particular date or period, as of such date or period), except where the failure of such representations and warranties to be so true and correct would not reasonably be expected to haveaggregate, a Material Adverse Effect on the Company; Effect, and (ciii) Parent shall have received a certificate signed by the chief an executive officer or chief financial officer of the Company to the effect of clauses (a) and (b) above; and (d) since the date of this Agreement, there shall not have occurred and be continuing a Material Adverse Effect on the Companyforegoing effect.

Conditions to the Obligations of Parent and Merger Subsidiary. The respective obligations of Parent and Merger Subsidiary to consummate the Merger are subject to the satisfaction or (or, to the extent permissible, permitted by Applicable Law) waiver by Parent) Parent at or prior to the Effective Time of the following further conditions: (a) (i) the Company shall have performed or complied with, in all material respects respects, all of its obligations hereunder required to be performed or complied with by it at or prior to the Effective Time; , (bii) (iA) the representations and warranties of the Company contained in Section 4.05 (Capitalization4.05(a), Section 4.05(c)(I) and Section 4.10(a)(ii) shall be true and correct in all respects (except in the case of Section 4.05(a) and Section 4.05(c)(I) for any inaccuracy(ies) that individually or in the aggregate is or are de minimis relative to the fully diluted equity capitalization of the Company) at and as of the Effective Time as if made at and as of such time (other than such representations and warranties that by their terms address matters only as of another specified time, which shall be true and correct only as of such time), (B) the representations and warranties of the Company contained in Section 4.02, Section 4.26, Section 4.27, Section 4.28 and Section 4.29 shall be true and correct in all material respects, except for inaccuracies that are de minimiswithout giving effect to any materiality, “Material Adverse Effect” and similar “material” qualifications contained therein, at and as of the Effective Time as if made at and as of such time (or, in the case of those other than such representations and warranties that are made by their terms address matters only as of a particular date or periodanother specified time, which shall be so true and correct only as of such date or period), time) and (iiC) the other representations and warranties of the Company contained in Section 4.01 Article 4 (Corporate Existence disregarding all materiality, “Material Adverse Effect” and Power), Section 4.02 (Corporate Authorizationsimilar “material” qualifications contained therein) and Section 4.10 (No Undisclosed Material Liabilities), shall be true and correct in all material respects at and as of the Effective Time as if made at and as of such time (orother than such representations and warranties that by their terms address matters only as of another specified time, which shall be so true and correct only as of such time), except, in the case of those representations and warranties that are made as of a particular date or periodthis clause (C) only, as of such date or period) and (iii) the other representations and warranties of the Company contained in this Agreement shall be true and correct (disregarding all qualifications or limitations as to “materially”, “Material Adverse Effect” and words of similar import set forth therein, other than in Section 4.08(a)) at and as of the Effective Time as if made at and as of such time (or, in the case of those representations and warranties that are made as of a particular date or period, as of such date or period), except where the failure of such representations and warranties to be so true and correct correct, individually or in the aggregate, has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, and (iii) Parent shall have received a certificate signed by an executive officer of the Company certifying as to the matters in this Section 9.02(a) and Section 9.02(b); and (b) since the date of this Agreement there shall not have occurred any effect, change, development, event, circumstance, occurrence, condition, fact or state of facts that, individually or in the aggregate, has had, or would reasonably be expected to have, a Material Adverse Effect on the Company; (c) Parent shall have received a certificate signed by the chief executive officer or chief financial officer of the Company to the effect of clauses (a) and (b) above; and (d) since the date of this Agreement, there shall not have occurred and be continuing a Material Adverse Effect on the Company.

Conditions to the Obligations of Parent and Merger Subsidiary. The obligations of Parent and Merger Subsidiary to consummate the Merger are subject to the satisfaction (or, to the extent permissible, or waiver by Parent) of the following further conditions: (a) (i) the Company shall have performed in all material respects all of its material obligations hereunder required to be performed by it at or prior to the Effective Time; , (bii) (iA) the representations and warranties of the Company contained in Sections 4.01, 4.02, 4.04(i), the first sentence and the last two sentences of Section 4.05 (Capitalization4.05(a) and the last sentence of 4.05(b), 4.07(l), 4.10(a)(ii), 4.23, 4.24 and 4.25 that are not qualified by materiality or Company Material Adverse Effect shall be true and correct in all respects, except for inaccuracies material respects and any such representations and warranties that are de minimis, qualified by materiality or Company Material Adverse Effect shall be true and correct at and as of the date of this Agreement and at and as of the Effective Time as if made at and as of such time (or, in the case of those other than any such representations and warranties that are made by their terms address matters only at and as of a particular date another specified time, which shall be true and correct in all material respects or periodtrue and correct, as the case may be, only at and as of such date or periodtime), (iiB) the representations and warranties of the Company contained in Section 4.01 4.05 (Corporate Existence other than the first sentence and Power), the last two sentences of Section 4.02 (Corporate Authorization4.05(a) and the last sentence of Section 4.10 (No Undisclosed Material Liabilities4.05(b), ) shall be true and correct in all material respects correct, subject only to de minimis exceptions, at and as of the date of this Agreement and at and as of the Effective Time as if made at and as of such time (or, in the case of those other than any such representations and warranties that are made by their terms address matters only at and as of a particular date or periodanother specified time, which shall be true and correct, subject only to de minimis exceptions, only at and as of such date or period) time), and (iiiC) the all other representations and warranties of the Company contained in this Agreement or in any certificate or other writing delivered by the Company pursuant hereto shall be true and correct (disregarding all qualifications or limitations as to “materially”, “materiality and Company Material Adverse Effect” Effect qualifications contained therein) at and words as of similar import set forth therein, other than in Section 4.08(a)) the date of this Agreement and at and as of the Effective Time as if made at and as of such time (orother than any such representations and warranties that by their terms address matters only as of another specified time, which shall be true and correct (disregarding all materiality and Company Material Adverse Effect qualifications contained therein) only at and as of such time), with, in the case of those representations this clause (C) only, only such exceptions as have not had and warranties that are made as of a particular date or period, as of such date or period), except where the failure of such representations and warranties to be so true and correct would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the Company; Effect; and (ciii) Parent shall have received a certificate signed by the chief an executive officer or chief financial officer of the Company to the foregoing effect of clauses (aand certifying that the condition set forth in Section 9.02(c) and has been satisfied; (b) aboveParent shall have received the opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, 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 Subsidiary 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(b) of the Code, which opinion shall not have been withdrawn or modified in any material respect. In rendering the opinion described in this Section 9.02(b), ▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇▇▇ LLP shall have received and may rely upon the Tax Representation Letters referred to in Section 8.07(b) hereof; and (dc) since the date of this Agreementhereof, there shall not have occurred and be continuing any event, occurrence, development or state of circumstances or facts which, individually or in the aggregate, has had or would reasonably be expected to have a Company Material Adverse Effect on the CompanyEffect.

Conditions to the Obligations of Parent and Merger Subsidiary. The obligations of Parent and Merger Subsidiary to consummate the Merger are subject ‎subject to the satisfaction or (or, to the extent permissible, waiver by Parentpermissible under Applicable Law) ‎waiver of the following further conditions: (a) (i) (A) the representations and warranties of the Company contained in ‎Section 4.05 (other than the last sentence of Section 4.05(b) and the information set forth on Section 4.05 of the Company Disclosure Schedule with respect to the holder and date of grant) shall be true and correct in all but de minimis respects, (B) any of the representations and warranties of the Company contained in any of Sections ‎4.01, ‎4.02, ‎4.06, ‎4.08, ‎4.21, ‎4.22, ‎4.23 or ‎4.24 that are qualified as to materiality or Company Material Adverse Effect shall be true and correct in all respects and any such representations and warranties that are not so qualified shall be true and correct in all material respects, (C) the representation and warranties of the Company contained in ‎Section 4.10(a)(ii) ‎shall be true and correct in all respects, and ‎(D)‎ any of the other ‎representations and warranties of the Company contained in this ‎Agreement (disregarding all materiality and Company Material ‎Adverse Effect qualifications contained therein) shall be true and ‎correct with, in the case of this clause (D) only, only such exceptions as ‎have not had and would not reasonably be expected to have, individually ‎or in the aggregate, a Company Material Adverse Effect, in each case at and as of immediately prior to the ‎Effective Time as if made at and as of such time (other than any such ‎representation and warranty that by its terms addresses matters only as of ‎another specified time, which shall be true and correct only as of such time)‎, (ii)‎ the Company shall have performed in all material respects all of its obligations ‎obligations hereunder required to be performed by it at or prior to the Effective Time;‎Time and ‎(iii)‎ Parent shall have received a certificate dated as of the Closing Date signed by ‎an executive officer of the Company to the foregoing effect;‎ (b) (i) any applicable waiting periods under the representations and warranties of the Company contained in Section 4.05 (Capitalization) HSR Act shall be true and correct in all respects, except for inaccuracies that are de minimis, at and as of the Effective Time as if made at and as of such time (or, in the case of those representations and warranties that are made as of a particular date have expired or period, as of such date or period)been terminated, (ii) any required clearances, approvals and consents under Competition Law of Germany and Austria relating to the representations and warranties of the Company contained in Section 4.01 (Corporate Existence and Power)Merger shall have been received, Section 4.02 (Corporate Authorization) and Section 4.10 (No Undisclosed Material Liabilities), shall be true and correct in all material respects at and as of the Effective Time as if made at and as of such time (or, in the case of those representations and warranties that are made as of a particular date or period, as of such date or period) and (iii) the other representations CFIUS Condition shall have been met, (iv) the DDTC Condition shall have been met and warranties (v) the MINEFI Condition shall have been met (clauses (i) through (v) collectively, the “Required Approvals”), and no such Required Approval shall have expired, terminated or been received subject to, or conditioned upon, (x) any limitation on the ownership of the capital stock of the Company contained in by Parent or any of its Affiliates or (y) any requirement that Parent, the Surviving Corporation or the Company or any of their respective Affiliates take any action that is not required to be taken (or permitted to be taken without Parent’s consent) pursuant to the terms of this Agreement, including ‎Section 8.01(a); and (c) there shall not have been instituted any action, suit or proceeding by any ‎Governmental Authority (that has not been dismissed or otherwise been resolved) ‎seeking to make illegal or otherwise directly or indirectly to restrain or prohibit the ‎consummation of the Merger (including Parent’s direct or indirect ownership of all of the Company’s and its Subsidiaries’ outstanding capital stock); (d) there shall not have occurred following the date of this Agreement shall be true and correct (disregarding all qualifications any event, occurrence or limitations as to “materially”, “Material Adverse Effect” and words of similar import set forth therein, other than in Section 4.08(a)) at and as of the Effective Time as if made at and as of such time (or, in the case of those representations and warranties that are made as ‎development of a particular date state of circumstances or period, as of such date facts which has had or period), except where the failure of such representations and warranties to be so true and correct would not reasonably be expected to have, individually or in the ‎aggregate, a Company Material Adverse Effect on the Company; (c) Parent shall have received a certificate signed by the chief executive officer or chief financial officer of the Company to the effect of clauses (a) and (b) above; and (d) since the date of this Agreement, there shall not have occurred and be continuing a Material Adverse Effect on the Company.‎Adverse Effect‎.

Conditions to the Obligations of Parent and Merger Subsidiary. The obligations of Parent and Merger Subsidiary to consummate the Merger are subject to the satisfaction (or, to the extent permissible, waiver by Parent) of the following further conditions: (a) (i) the Company shall have performed and complied in all material respects with all of its obligations hereunder obligations, agreements and covenants required to be performed by it at under this Agreement on or prior to the Effective Time; ; (bii) (i) the representations and warranties of the Company contained in Section 4.05 (Capitalization) shall be true and correct in all respects, except for inaccuracies that are de minimis, at and as of the Effective Time as if made at and as of such time (or, in the case of those representations and warranties that are made as of a particular date or period, as of such date or period), (iiA) the representations and warranties of the Company contained in Section 4.01 (Corporate Existence Organization, Good Standing and PowerQualification), Section 4.02 4.03 (Corporate AuthorizationAuthority, Approval), Section 4.04(b)(i) (No Conflict), Section 4.12 (No Shareholders Rights Plan; Takeover Statutes), Section 4.20 (Opinion of Financial Advisor) and Section 4.10 4.21 (No Undisclosed Material Liabilities)Finders’ Fees) hereof, shall be true and correct in all material respects at respects, and Section 4.02(a) (Capital Structure), which shall be true and correct except for such inaccuracies as are de minimis, (in each case without giving effect to any “materiality” qualifiers or qualifiers of similar import set forth therein) as of the date hereof and as of the Effective Time Closing Date as if though made at on and as of such date and time (orexcept to the extent that any such representation and warranty expressly speaks as of an earlier date, in the which case of those representations such representation and warranties that are made as of a particular date or period, warranty shall be true and correct as of such date or periodearlier date) and (iiiB) the other representations and warranties of the Company contained set forth in this Agreement (disregarding all materiality and Material Adverse Effect qualifications contained therein) shall be true and correct (disregarding all qualifications or limitations as to “materially”, “Material Adverse Effect” and words of similar import set forth therein, other than in Section 4.08(a)) at the date hereof and as of the Effective Time Closing Date as if though made at on and as of such date and time (orexcept to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date); unless, in the case of those representations and warranties that are made as of a particular date or periodthis clause (B) only, as of such date or period), except where the failure of such representations and warranties of the Company to be so true and correct would has not had, and is not reasonably be expected likely to have, a Material Adverse Effect on the Company; Effect; and (ciii) Parent shall have received at the Effective Time a certificate signed on behalf of the Company by the chief executive officer or chief financial an authorized officer of the Company to the effect of clauses (a) and foregoing effect; (b) aboveif a CFIUS Filing Request is received prior to the Closing, the CFIUS Approval shall have been obtained, and the CFIUS Approval shall be in full force and effect; and (dc) since the date of this Agreementhereof, there shall not have occurred and be continuing any change, development, discovery, event, fact, circumstance or other matter that has had or would reasonably be likely to have a Material Adverse Effect on the CompanyEffect.

Conditions to the Obligations of Parent and Merger Subsidiary. The obligations of Parent and Merger Subsidiary to consummate the Merger are subject to the satisfaction (or, to the extent permissible, waiver by Parent) of the following further conditions: (a) (i) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time; ; (b) (iii)(A) the representations and warranties of the Company contained in Sections 4.01 and 4.02 and each sentence of Section 4.05 4.05(a) (Capitalizationother than the first sentence thereof) and the first and second sentences of Section 4.05(b) shall be true and correct in all respects, except for inaccuracies that are de minimis, at and as of the Effective Time as if made at and as of such time (or, in the case of those representations and warranties that are made as of a particular date or period, as of such date or period), (ii) the representations and warranties of the Company contained in Section 4.01 (Corporate Existence and Power), Section 4.02 (Corporate Authorization) and Section 4.10 (No Undisclosed Material Liabilities), shall be true and correct in all material respects at and as of the Effective Time as if made at and as of such time (or, in the case of those other than such representations and warranties that are made by their terms address matters only as of a particular date or periodanother specified time, which shall be true and correct in all respects only as of such date time) except in respect of the aforementioned sentences of Section 4.05, inaccuracies that would result in payment of $1,000,000 or period) less of additional Merger Consideration and Equity Award Consideration, in the aggregate; and (iiiB) the other representations and warranties of the Company contained in this Agreement (disregarding all materiality and Material Adverse Effect qualifications contained therein) shall be true and correct (disregarding all qualifications or limitations as to “materially”, “Material Adverse Effect” and words of similar import set forth therein, other than in Section 4.08(a)) at and as of the Effective Time as if made at and as of such time (orother than representations and warranties that by their terms address matters only as of another specified time, which shall be true and correct only as of such time), with, in the case of those representations this clause (B) only, such exceptions as have not had and warranties that are made as of a particular date or period, as of such date or period), except where the failure of such representations and warranties to be so true and correct would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company; ; and (ciii) Parent shall have received a certificate signed by the chief an executive officer or chief financial officer of the Company to the effect of clauses (a) and foregoing effect; (b) above; andthere shall not have been instituted or pending (or overtly threatened) any action or proceeding by any Governmental Authority challenging or seeking to make illegal, to delay materially or otherwise directly or indirectly to restrain or prohibit the consummation of the Merger; (dc) since the date of this Agreement, there shall not have occurred and after the date of this Agreement any event, occurrence, revelation or development of a state of circumstances or facts which, individually or in the aggregate, has had or would reasonably be continuing expected to have a Material Adverse Effect on the Company; and (d) CFIUS shall have notified Parent that it has determined not to investigate the transactions contemplated by this Agreement (including the Merger) or, in the event that CFIUS has undertaken such an investigation, CFIUS has terminated such investigation or the President of the United States has determined not to take any action.

Conditions to the Obligations of Parent and Merger Subsidiary. The obligations of Parent and Merger Subsidiary to consummate the Merger are subject to the satisfaction (or, to the extent permissible, waiver by Parent) of the following further conditions: (a) (i) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time; , (bii) (iA) the representations and warranties of the Company contained in Section 4.05 (Capitalization) 4.01, Section 4.02, Section 4.20, Section 4.21 and Section 4.22 shall be true and correct in all respects, except for inaccuracies that are de minimis, at and as of the Effective Time as if made at and as of such time (or, in the case of those representations and warranties that are made as of a particular date or period, as of such date or period), (ii) the representations and warranties of the Company contained in Section 4.01 (Corporate Existence and Power), Section 4.02 (Corporate Authorization) and Section 4.10 (No Undisclosed Material Liabilities), shall be true and correct in all material respects at and as of the Effective Time as if made at and as of such time (or, in the case of those other than such representations and warranties that are made by their terms address matters only as of a particular date or periodanother specified time, which shall be true in all material respects only as of such date or period) and time), (iiiB) the other representations and warranties of the Company contained in this Agreement Section 4.05 shall be true and correct (disregarding all qualifications or limitations at and as to “materially”, “Material Adverse Effect” of the date of this Agreement and words of similar import set forth therein, other than in Section 4.08(a)) at and as of the Effective Time as if made at and as of such time (orother than any such representations and warranties that by their terms address matters only at and as of another specified time, which shall be true and correct only at and as of such time), in each case except for any inaccuracies that would not, individually or in the aggregate, increase the aggregate Merger Consideration payable in the Merger by more than 0.5% and (C) the other representations and warranties of the Company contained in this Agreement or in any certificate or other writing delivered by the Company pursuant hereto (disregarding all materiality and Company Material Adverse Effect qualifications contained therein) shall be true at and as of the Effective Time as if made at and as of such time (other than representations and warranties that by their terms address matters only as of another specified time, which shall be true only as of such time), with, in the case of those representations this clause (C) only, only such exceptions as have not had and warranties that are made as of a particular date or period, as of such date or period), except where the failure of such representations and warranties to be so true and correct would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the Company; (c) Parent shall have received a certificate signed by the chief executive officer or chief financial officer of the Company to the effect of clauses (a) and (b) aboveEffect; and (d) since the date of this Agreement, there shall not have occurred and be continuing a Material Adverse Effect on the Company.

Conditions to the Obligations of Parent and Merger Subsidiary. The obligations of Parent and Merger Subsidiary to consummate the Merger are subject to the satisfaction (or, to the extent permissible, waiver by Parent) of the following further conditions: (a) (i) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time; , (b) (iii) the representations and warranties of the Company contained in Section 4.05 this Agreement and in any certificate or other writing delivered by the Company pursuant hereto (Capitalizationwithout regard to materiality or Material Adverse Effect qualifiers contained therein) shall be true and correct in all respects, except for inaccuracies that are de minimis, at and as of the date of this Agreement and the Effective Time as if made at and as of such time (or, in the case of those other than representations and warranties that are made as of a particular date or periodspecified date, which shall be true and correct as of such date or periodspecified date), except where the failure to be so true and correct individually or in the aggregate has not had and would not reasonably be expected to have a Material Adverse Effect on the Company; provided that (iiA) the representations and warranties in Sections 4.01, 4.02, 4.04(i), 4.05, 4.21 and 4.22 that are qualified by materiality or Material Adverse Effect shall be true and correct at and as of the Company contained in Section 4.01 date of this Agreement and the Effective Time as if made at and as of such time (Corporate Existence other than representations and Powerwarranties made as of a specified date, which shall be true and correct as of such specified date), Section 4.02 and (Corporate AuthorizationB) the representations and Section 4.10 (No Undisclosed Material Liabilitieswarranties in Sections 4.01, 4.02, 4.04(i), 4.05, 4.21 and 4.22 that are not qualified by materiality or Material Adverse Effect shall be true and correct in all material respects at and as of the Effective Time as if made at and as date of such time (or, in the case of those representations and warranties that are made as of a particular date or period, as of such date or period) and (iii) the other representations and warranties of the Company contained in this Agreement shall be true and correct (disregarding all qualifications or limitations as to “materially”, “Material Adverse Effect” and words of similar import set forth therein, other than in Section 4.08(a)) at and as of the Effective Time as if made at and as of such time (or, in the case of those other than representations and warranties that are made as of a particular date or periodspecified date, which shall be true and correct in all material respects as of such date or period), except where the failure of such representations specified date) and warranties to be so true and correct would not reasonably be expected to have, a Material Adverse Effect on the Company; (ciii) Parent shall have received a certificate signed by the chief executive officer or chief financial officer of the Company to the effect foregoing effect; (b) there shall not have been instituted or pending any action or proceeding by any Governmental Authority (A) challenging or seeking to make illegal, to delay materially or otherwise directly or indirectly to restrain or prohibit the consummation of the Merger, seeking to obtain material damages or otherwise directly or indirectly relating to the transactions contemplated by the Merger, (B) seeking to restrain or prohibit Parent’s, Merger Subsidiary’s or any of Parent’s other Affiliates’ (x) ability effectively to exercise full rights of ownership of the Company Common Stock, including the right to vote any shares of Company Common Stock acquired or owned by Parent, Merger Subsidiary or any of Parent’s other Affiliates following the Effective Time on all matters properly presented to the Company’s shareholders or (y) ownership or operation (or that of its respective Subsidiaries or Affiliates) of all or 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 whole, (C) seeking to compel Parent or any of its Subsidiaries or Affiliates 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, or of Parent and its Subsidiaries, taken as a whole or (D) that otherwise would reasonably be expected to have a Material Adverse Effect on the Company or Parent; (c) there shall not have been any action taken, or any Applicable Law proposed, enacted, enforced, promulgated, issued or deemed applicable to the Merger, by any Governmental Authority, other than the application of the waiting period provisions of the HSR Act to the Merger, that would reasonably be expected, directly or indirectly, to result in any of the consequences referred to in clauses (aA) and through (D) of clause (b) above; and (d) since the date of this Agreement, there shall not have occurred and be continuing as of or otherwise arisen before the Effective Time any event, occurrence or development which, individually or in the aggregate, has or would reasonably be expected to have a Material Adverse Effect on the Company.

Conditions to the Obligations of Parent and Merger Subsidiary. The obligations of Parent and Merger Subsidiary to consummate the Merger are subject to the satisfaction (or, to the extent permissible, waiver by Parent) of the following further conditions: (a) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time; (b) (i) the representations and warranties of the Company set forth in ‎‎Section 4.01(i), ‎‎Section 4.02 and ‎‎Section 4.23 (disregarding all materiality and Material Adverse Effect qualifications contained in Section 4.05 (Capitalizationtherein) shall be true and correct in all respects, except for inaccuracies that are de minimis, at and material respects as of the Effective Time Closing Date as if made at and as of such time the Closing Date (or, in the case of those other than representations and warranties that are made by their terms address matters only as of a particular date or periodanother specified time, which shall be true in all material respects only as of such date or periodtime), (ii) the representations and warranties of the Company contained set forth in Section 4.01 (Corporate Existence and Power‎Section 4.05(a), Section 4.02 (Corporate Authorizationd), (e) and Section 4.10 (No Undisclosed Material Liabilities), f) shall be true and correct in all material but de minimis respects at and as of the Effective Time Closing Date as if made at and as of such time the Closing Date (or, in the case of those other than representations and warranties that are made by their terms address matters only as of a particular date or periodanother specified time, which shall be true in all material respects only as of such date or periodtime), (iii) the representation and warranty of the Company set forth in ‎‎Section 4.10(b) shall be true in all respects as of the Closing Date as if made at and as of the Closing Date and (iiiiv) the other representations and warranties of the Company set forth in ‎‎Article 4 (disregarding all materiality and Material Adverse Effect qualifications contained in this Agreement therein) shall be true and correct (disregarding all qualifications or limitations as to “materially”, “Material Adverse Effect” and words of similar import set forth therein, other than in Section 4.08(a)) at and as of the Effective Time Closing Date as if made at and as of the Closing Date (other than representations and warranties that by their terms address matters only as of another specified time, which shall be true only as of such time (ortime), in the case of those representations this clause (iii) with only such exceptions as have not had and warranties that are made as of a particular date or period, as of such date or period), except where the failure of such representations and warranties to be so true and correct would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Effect; (b) the Company;covenants of the Company to be performed prior to the Effective Time shall have been performed (or any non-performance shall have been cured) in all material respects; and (c) Parent shall have received a certificate signed by the chief an executive officer or chief financial officer of the Company to certifying that the effect of clauses (aconditions specified in ‎‎Section 9.02(a) and (b‎Section 9.02(b) above; and (d) since the date of this Agreement, there shall not have occurred and be continuing a Material Adverse Effect on the Companybeen satisfied.

Conditions to the Obligations of Parent and Merger Subsidiary. The obligations of Parent and Merger Subsidiary to consummate the Merger are subject to the satisfaction (or, to the extent permissible, waiver by Parent) of the following further conditions: (a) (i) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time; Time (bexcluding, for this purpose, Section 6.05(b)(i) and Section 6.07), (ii) (iA) the representations and warranties of the Company contained in Section 4.05 (Capitalization4.10(a)(ii) shall be true and correct in all respects, except for inaccuracies that are de minimis, at and respects as of the Effective Time as if made at and as of such specified time (or, in the case of those representations and warranties that are made as of a particular date or period, as of such date or period)set forth therein, (iiB) the representations and warranties of the Company contained in Section 4.01 (Corporate Existence Sections 4.01, 4.02, 4.05, 4.24 and Power), Section 4.02 (Corporate Authorization) and Section 4.10 (No Undisclosed Material Liabilities), 4.26 shall be true and correct in all material respects at and as of the Effective Time as if made at and as of such time (or, in the case of those other than such representations and warranties that are made by their terms address matters only as of a particular date or periodanother specified time, which shall be true only as of such date or periodtime) and (iiiC) the other representations and warranties of the Company contained in this Agreement Article 4 (disregarding all materiality and Material Adverse Effect qualifications contained therein) shall be true and correct (disregarding all qualifications or limitations as to “materially”, “Material Adverse Effect” and words of similar import set forth therein, other than in Section 4.08(a)) at and as of the Effective Time as if made at and as of such time (orother than representations and warranties that by their terms address matters only as of another specified time, which shall be true only as of such time), with, in the case of those representations this clause (C) only, only such exceptions as have not had and warranties that are made as of a particular date or period, as of such date or period), except where the failure of such representations and warranties to be so true and correct would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company; , and (ciii) Parent shall have received a certificate signed by the chief an executive officer or chief financial officer of the Company to the effect of clauses (a) and foregoing effect; (b) abovethe Company shall have at least $5,000,000 of cash and cash equivalents on the date of the Closing; and (dc) since the date of this Agreement, there shall not have occurred any event, occurrence or development of a state of circumstances or facts which has had and continues to have or would reasonably be continuing expected to have, individually or in the aggregate, a Material Adverse Effect on the Company.

Conditions to the Obligations of Parent and Merger Subsidiary. The obligations of Parent and Merger Subsidiary to consummate the Merger are subject to the satisfaction or waiver (or, to the extent permissible, waiver by Parentwhere permissible under Applicable Law) of the following further conditionsconditions at or prior to the Closing: (a) the Company shall have performed and complied with in all material respects all of its obligations and agreements hereunder required to be performed or complied with by it at or prior to the Effective TimeClosing; (b) (i) each of the representations and warranties of the Company contained in (x) Section 4.5(a), (y) the second sentence of Section 4.5(b) and (z) Section 4.5(c) shall be true and correct in all respects, in each case except for any de minimis inaccuracies 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 (other than representations and warranties that by their terms address matters only as of another specified time, which shall be true only as of such time), (ii) each of the other representations and warranties of the Company contained in Section 4.5(b) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing Date as if made as of such time (other than representations and warranties that by their terms address matters only as of another specified time, which shall be true only as of such time), (iii) each of the representations and warranties of the Company contained in Section 4.05 (Capitalization) shall be true and correct in all respects4.1, except for inaccuracies that are de minimisSection 4.2, at and as of the Effective Time as if made at and as of such time (or, in the case of those representations and warranties that are made as of a particular date or period, as of such date or period), (ii) the representations and warranties of the Company contained in Section 4.01 (Corporate Existence and Power4.5(d), Section 4.02 (Corporate Authorization) 4.6(a), Section 4.6(b), Section 4.22, Section 4.23 and Section 4.10 4.24: (No Undisclosed A) to the extent not qualified or limited by the word “material,” “materiality” or “Material Liabilities)Adverse Effect” as set forth therein, shall be true and correct in all material respects at and as of the Effective Time date of this Agreement and at and as of the Closing Date as if made at and as of such time (or, in the case of those other than representations and warranties that are made by their terms address matters only as of a particular date or periodanother specified time, which shall be true only as of such date or periodtime) and (iiiB) to the extent qualified or limited by the word “material,” “materiality” or “Material Adverse Effect” as set forth therein, shall have been 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 such time (other than representations and warranties that by their terms address matters only as of another specified time, which shall be true only as of such time), and (iv) each of the other the representations and warranties of the Company contained in this Agreement (disregarding all materiality and Material Adverse Effect qualifications contained therein) shall be true and correct (disregarding all qualifications or limitations as to “materially”, “Material Adverse Effect” and words of similar import set forth therein, other than in Section 4.08(a)) at the date of this Agreement and as of the Effective Time Closing Date as if made at and as of such time (orother than representations and warranties that by their terms address matters only as of another specified time, which shall be true only as of such time), except, in the case of those representations and warranties that are made as of a particular date or period, as of such date or periodthis clause (iv), except where the failure for any failures of such representations and warranties to be so true and correct as have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the CompanyEffect; (c) Parent shall have received a certificate signed by the chief executive officer or chief financial officer of the Company to the effect of clauses (a) and (b) above; and (d) since the date of this Agreement, there shall not have occurred and been no Effect that, individually or in the aggregate, has had or would reasonably be continuing expected to have a Material Adverse Effect on Effect; and (d) Parent shall have received a certificate signed by an executive officer of the CompanyCompany certifying that the conditions in Section 9.2(a), Section 9.2(b) and Section 9.2(c) are satisfied.

Conditions to the Obligations of Parent and Merger Subsidiary. The obligations of Parent and Merger Subsidiary to consummate the Merger are subject to the satisfaction (or, to the extent permissible, waiver by Parent) of the following further conditions: : (ai) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time; ; (b) (iii) the representations and warranties of the Company contained in Section 4.05 4.05(a) (Capitalization) and the first two sentences of Section 4.05(c) (Capitalization) shall be true and correct in all respects, except for respects (other than inaccuracies that are in the aggregate de minimis); (iii) the representations and warranties of the Company contained in Sections 4.01 (Corporate Existence and Power), Section 4.02 (Corporate Authorization), Section 4.05 (Capitalization) (except as provided in Section 9.02(ii)), Section 4.21 (Finders’ Fees), Section 4.22 (Opinion of Financial Advisor) and Section 4.23 (Antitakeover Statutes) shall be true in all material respects at and as of immediately prior to the Effective Time as if made at and as of such time (or, in the case of those other than such representations and warranties that are made by their terms address matters only as of a particular date or periodanother specified time, which shall be true in all material respects only at and as of such date or periodtime), ; (iiiv) the other representations and warranties of the Company contained in Section 4.01 this Agreement (Corporate Existence disregarding all materiality and Power), Section 4.02 (Corporate AuthorizationCompany Material Adverse Effect qualifications contained therein) and Section 4.10 (No Undisclosed Material Liabilities), shall be true and correct in all material respects at and as of immediately prior to the Effective Time as if made at and as of such time (orother than representations and warranties that by their terms address matters only as of another specified time, which shall be true only at and as of such time), with, in the case of those representations this clause (iv) only, only such exceptions as have not had and warranties that are made as of a particular date or period, as of such date or period) and (iii) the other representations and warranties of the Company contained in this Agreement shall be true and correct (disregarding all qualifications or limitations as to “materially”, “Material Adverse Effect” and words of similar import set forth therein, other than in Section 4.08(a)) at and as of the Effective Time as if made at and as of such time (or, in the case of those representations and warranties that are made as of a particular date or period, as of such date or period), except where the failure of such representations and warranties to be so true and correct would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the Company; Effect; (cv) Parent shall have received a certificate signed by the chief an executive officer or chief financial officer of the Company to the effect of clauses foregoing effect; (avi) from and (b) above; and (d) since after the date of this Agreement, there shall not have occurred and any event, circumstance, change, occurrence, development, condition or effect that, has had or would reasonably be continuing expected to have, individually or in the aggregate, a Company Material Adverse Effect on that is continuing; and (vii)(A) there shall be no Applicable Law in any Specified Jurisdiction or Other Jurisdiction and (B) no Governmental Authority in any Specified Jurisdiction or Other Jurisdiction having jurisdiction over any party hereto shall have enacted, issued, promulgated, enforced or entered any injunction, order or decree, whether temporary, preliminary or permanent, that, in each case, remains in effect and makes illegal, enjoins or otherwise prohibits the Companyconsummation of the Merger or the other transactions contemplated by this Agreement.

Conditions to the Obligations of Parent and Merger Subsidiary. The obligations of Parent and Merger Subsidiary to consummate the Merger are subject to the satisfaction (or, to the extent permissible, waiver by Parent) of the following further conditions: (a) (i) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time; , (b) (iii) the representations and warranties of the Company contained in Section 4.05 (Capitalization4.10(b) shall be true and correct in all respects, except for inaccuracies that are de minimis, respects at and as of the date of this Agreement and at and as of the Effective Time as if made at and as of such time (or, in the case of those representations and warranties that are made as of a particular date or perioddate, as of such date or perioddate), (iiiii) the representations and warranties of the Company contained in the first sentence of Section 4.01 (Corporate Existence and Power)4.01, Section 4.02 (Corporate Authorization) 4.02, Section 4.05, Section 4.20 and Section 4.10 (No Undisclosed Material Liabilities), 4.22 shall be true and correct in all material respects at and as of the date of this Agreement and at and as of the Effective Time as if made at and as of such time (or, in the case of those representations and warranties that are made as of a particular date or perioddate, as of such date or period) and date), (iiiiv) the other representations and warranties of the Company (other than in the first sentence of Section 4.01, Section 4.02, Section 4.05, Section 4.10(b), Section 4.20 and Section 4.22) contained in this Agreement shall be true and correct (disregarding all qualifications or limitations as to “materially”, ,” “Material Adverse Effect” and words of similar import set forth therein, other than in Section 4.08(a)) at and as of the date of this Agreement and at and as of the Effective Time as if made at and as of such time (or, in the case of those representations and warranties that are made as of a particular date or perioddate, as of such date or perioddate), except where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company; ; and (cv) Parent shall have received a certificate signed by the chief executive officer or chief financial officer of the Company to the foregoing effect of clauses (ai), (ii), (iii) and (b) aboveiv); and (db) since the date of this Agreement, there shall not have occurred and be continuing as of the Effective Time any effect, development, event, change or circumstance that has had a Material Adverse Effect on the Company.

Conditions to the Obligations of Parent and Merger Subsidiary. The obligations of Parent and Merger Subsidiary to consummate the Merger are subject to the satisfaction (or, to the extent permissible, or waiver by Parent, if permissible under Applicable Law) of the following further conditions: (a) (i) the Company shall have performed and complied with, in all material respects respects, all of its obligations covenants, obligations, and agreements hereunder required to be performed by it at or prior to the Effective Time; , (bii) (iA) the representations and warranties of the Company contained in Section 4.05 (Capitalization4.10(a) shall be true and correct in all respectsrespects as of the date of this Agreement and at and as of the Effective Time as if made at and as of such time, except for inaccuracies that are de minimis(B) the representations and warranties of the Company contained in Section 4.01(a), Section 4.02, Section 4.05(f), Section 4.06(c), Section 4.23 and Section 4.25 (disregarding all materiality and Material Adverse Effect qualifications contained therein) shall be true in all material respects as of the date of this Agreement and at and as of the Effective Time as if made at and as of such time (or, in the case of those other than such representations and warranties that are made by their terms address matters only as of a particular date or periodanother specified time, which shall be true only as of such date or periodtime), (iiC) the representations and warranties of the Company contained set forth in Section 4.01 (Corporate Existence and Power), Section 4.02 (Corporate Authorization4.05(a) and Section 4.10 (No Undisclosed Material Liabilities), 4.05(b) shall be true and correct in all material but de minimis respects as of the date of this Agreement and as of the Effective Time as if made at and as of such time (other than such representations and warranties that by their terms address matters only as of another specified time, which shall be true only as of such time), and (D) the other representations and warranties of the Company contained in Article 4 (disregarding all materiality and Material Adverse Effect qualifications contained therein) shall be true and correct as of the date of this Agreement and at and as of the Effective Time as if made at and as of such time (orother than representations and warranties that by their terms address matters only as of another specified time, which shall be true only as of such time), with, in the case of those representations and warranties that are made this clause (D) only, only such exceptions as of a particular date or period, as of such date or period) and (iii) the other representations and warranties of the Company contained in this Agreement shall be true and correct (disregarding all qualifications or limitations as to “materially”, “Material Adverse Effect” and words of similar import set forth therein, other than in Section 4.08(a)) at and as of the Effective Time as if made at and as of such time (or, in the case of those representations and warranties that are made as of a particular date or period, as of such date or period), except where the failure of such representations and warranties to be so true and correct would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company; Effect, and (ciii) Parent shall have received a certificate signed by the chief an executive officer or chief financial officer of the Company to the effect of clauses (a) and (b) aboveforegoing effect; and (db) since the date of this Agreement, Agreement there shall not have occurred and be continuing a Material Adverse Effect on the CompanyEffect.

Conditions to the Obligations of Parent and Merger Subsidiary. The obligations of Parent and Merger Subsidiary to consummate the Merger are subject to the satisfaction (or, to the extent permissible, or waiver by Parent) of the following further conditions: (a) (i) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time; , (bii) (iA) the representations and warranties of the Company contained in the first and second sentences of Section 4.05 (Capitalization4.05(a), the second sentence of Section 4.05(b) shall be true and correct in all respects, except for inaccuracies that are de minimisminimis inaccuracies, at and as of the Effective Time as if made at and as of such time (or, in the case of those other than such representations and warranties that are made by their terms address matters only as of a particular date or periodanother specified time, which shall be true in all respects, except for de minimis inaccuracies, as of such date or periodtime), (iiB) the representations and warranties of the Company contained in Sections 4.01, 4.02, 4.20, 4.21, and 4.22, and Items (1) – (4) of Section 4.01 (Corporate Existence and Power), Section 4.02 (Corporate Authorization4.28(a) and Section 4.10 (No Undisclosed Material Liabilities)of the Company Disclosure Schedule, shall be true and correct in all material respects at and as of the Effective Time as if made at and as of such time (or, in the case of those other than such representations and warranties that are made by their terms address matters only as of a particular date or periodanother specified time, which shall be true in all material respects only as of such date or periodtime) and (iiiC) the other representations and warranties of the Company contained in this Agreement (disregarding all materiality and Company Material Adverse Effect qualifications contained therein) shall be true and correct (disregarding all qualifications or limitations as to “materially”, “Material Adverse Effect” and words of similar import set forth therein, other than in Section 4.08(a)) at and as of the Effective Time as if made at and as of such time (orother than representations and warranties that by their terms address matters only as of another specified time, which shall be true only as of such time), with, in the case of those representations this clause (C) only, only such exceptions as have not had and warranties that are made as of a particular date or period, as of such date or period), except where the failure of such representations and warranties to be so true and correct would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the Company; Effect; and (ciii) Parent shall have received a certificate signed by the chief an executive officer or chief financial officer of the Company to the effect of clauses (a) and foregoing effect; (b) above; and (d) since the date of this Agreement, there shall not have occurred and be continuing any event, occurrence, revelation or development of a state of circumstances or facts which, individually or in the aggregate, has had or would reasonably be expected to have a Company Material Adverse Effect on Effect; (c) if review by CFIUS shall have concluded, the CompanyPresident of the United States of America shall not have taken action to block or prevent the consummation of the Merger or other transactions contemplated by this Agreement and no requirements or conditions to mitigate any national security concerns shall have been imposed, other than requirements or conditions that have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, provided that, for purposes of this Section 9.02(c) only, clause (E) in the definition of “Company Material Adverse Effect” shall be inapplicable (collectively, the “CFIUS Condition”); (d) the Company and its Subsidiaries will have delivered to Parent a payoff letter reasonably satisfactory to Parent from each holder of any outstanding Indebtedness (other than capitalized lease obligations listed in Section 9.02(d) of the Company Disclosure Schedule, the Secured Notes and the Convertible Notes), in each case with such Person (i) agreeing that the payment of the amounts set forth in its payoff letter will satisfy all outstanding obligations of the Company and its Subsidiaries with respect to such Indebtedness, and (2) agreeing that all Liens securing such Indebtedness will be released upon the satisfaction of the conditions set forth in its payoff letter; (e) no action or proceeding before any court of competent jurisdiction or other Governmental Authority to restrain or prohibit the transactions contemplated hereby shall have been instituted or overtly threatened by any Governmental Authority; and (f) if review by DDTC shall have concluded, DDTC shall not have taken action to block or prevent the consummation of the Merger or any of the other transactions contemplated by this Agreement and no requirements or conditions to mitigate any ITAR concerns shall have been imposed, other than requirements or conditions that have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, provided that, for purposes of this Section 9.02(f), clause (E) in the definition of “Company Material Adverse Effect” shall be inapplicable (collectively, the “60-Day Notice Condition”).

Conditions to the Obligations of Parent and Merger Subsidiary. The respective obligations of Parent and Merger Subsidiary to consummate the Merger are is subject to the satisfaction or (or, to extent permitted by Applicable Law) waiver at or prior to the extent permissible, waiver by Parent) Closing of the following further conditions: (a) (i) the Company shall have performed (or any failure to perform shall have been cured) and complied in all material respects all of with its covenants and obligations hereunder required to be performed or complied with by it at or prior to the Effective Time; Closing, (b) (iii)(A) the representations and warranties of the Company contained in Section 4.05 (Capitalization4.10(a)(ii) shall be true and correct in all respects, except for inaccuracies that are de minimis, at respects on the date of this Agreement and as of on the Effective Time Closing Date as if made at and as of such time (or, in on the case of those representations and warranties that are made as of a particular date or period, as of such date or period)Closing Date, (iiB) the representations and warranties of the Company contained in Section 4.01 (Corporate Existence and Power4.5(a), Section 4.02 (Corporate Authorization4.5(b) and Section 4.10 4.28 shall be true in all but de minimis respects on the date of this Agreement and on the Closing Date as if made on the Closing Date (No Undisclosed Material Liabilitiesexcept to the extent that such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date), (C) the representations and warranties of the Company contained in Section 4.1(a) (disregarding any materiality, Material Adverse Effect or other similar qualifications in the representations and warranties therein), Section 4.1(b), Section 4.2, Section 4.26, Section 4.30 and Section 4.31 shall be true and correct in all material respects at on the date of this Agreement and as of on the Effective Time Closing Date as if made at and as of on the Closing Date (other than such time (or, in the case of those representations and warranties that are made by their terms address matters only as of a particular date or periodanother specified time, which shall be true and correct only as of such date or periodtime) and (iiiD) the other representations and warranties of the Company contained in this Agreement Article 4 (disregarding all materiality and Material Adverse Effect qualifications contained therein) shall be true and correct (disregarding all qualifications or limitations as to “materially”, “Material Adverse Effect” on the date of this Agreement and words of similar import set forth therein, other than in Section 4.08(a)) at and as of on the Effective Time Closing Date as if made at on the Closing Date (other than representations and warranties that by their terms address matters only as of another specified time, which shall be true and correct only as of such time (ortime), with, in the case of those representations this clause (D) only, only such exceptions as have not had and warranties that are made as of a particular date or period, as of such date or period), except where the failure of such representations and warranties to be so true and correct would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company; and (ciii) Parent shall have received a certificate signed by the chief executive officer or chief financial an authorized officer of the Company to the effect of clauses (athat the conditions set forth in Section 9.2(a)(i) and (bii) above; andhave been satisfied; (db) since the date of this Agreement, there shall not have occurred and be continuing a Material Adverse Effect on Effect; (c) no Restraints shall be in effect or otherwise prohibiting the Companyconsummation of the transactions contemplated by the SVC Consent and Amendment Agreement; and (d) the Closing Agreements shall have been executed by each respective party thereto in the form of each such Closing Agreement attached to the SVC Consent and Amendment Agreement as required by the SVC Consent and Amendment Agreement and released and delivered to each other party thereto and the Parent.

Conditions to the Obligations of Parent and Merger Subsidiary. The obligations of Parent and Merger Subsidiary to consummate the Merger are subject to the satisfaction (or, to the extent permissible, waiver by Parent) of the following further conditions: (a) (i) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time; , (bii) (iA) the representations and warranties of the Company contained in Section 4.05 (Capitalization) shall be true and correct in all respects, respects (except for such inaccuracies that as are de minimis, minimis relative to Section 4.05 taken as a whole) at and as of the Effective Time as if made at and as of such time (or, in the case of those other than such representations and warranties that are made by their terms address matters only as of a particular date or periodanother specified time, which shall be true in all respects only as of such date or periodtime), (iiB) the representations and warranties of the Company contained in Section 4.01 (Corporate Existence Sections 4.01, 4.02, 4.21, 4.22 and Power), Section 4.02 (Corporate Authorization) and Section 4.10 (No Undisclosed Material Liabilities), 4.23 shall be true and correct in all material respects at and as of the Effective Time as if made at and as of such time (or, in the case of those other than such representations and warranties that are made by their terms address matters only as of a particular date or periodanother specified time, which shall be true in all material respects only as of such date or periodtime) and (iiiC) the other representations and warranties of the Company contained in this Agreement (disregarding all materiality and Material Adverse Effect qualifications contained therein) shall be true and correct (disregarding all qualifications or limitations as to “materially”, “Material Adverse Effect” and words of similar import set forth therein, other than in Section 4.08(a)) at and as of the Effective Time as if made at and as of such time (orother than representations and warranties that by their terms address matters only as of another specified time, which shall be true only as of such time), with, in the case of those representations this clause (C) only, only such exceptions as have not had and warranties that are made as of a particular date or period, as of such date or period), except where the failure of such representations and warranties to be so true and correct would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company; ; and (ciii) Parent shall have received a certificate signed by the chief an executive officer or chief financial officer of the Company to the effect of clauses (a) and foregoing effect; (b) above; andthere shall not be pending any action or proceeding by any Governmental Authority, (i) challenging or seeking to make illegal, to delay materially or otherwise directly or indirectly to restrain or prohibit the consummation of the Merger, seeking to obtain material damages or otherwise directly or indirectly relating to the transactions contemplated by the Merger, (ii) seeking to restrain or prohibit Parent’s, Merger Subsidiary’s or any of Parent’s other Affiliates’ (A) ability effectively to exercise full rights of ownership of the Company’s capital stock, including the right to vote any shares of the Company’s capital stock acquired or owned by Parent, Merger Subsidiary or any of Parent’s other Affiliates following the Effective Time on all matters properly presented to the Company’s stockholders, or (B) ability to effectively exercise full rights of ownership or operation (or that of its respective Subsidiaries or Affiliates) of any material business or assets of the Company and its Subsidiaries or of Parent and its Subsidiaries or (iii) seeking to compel Parent or any of its Subsidiaries or Affiliates to dispose of or hold separate all or any of any material business or assets of the Company and its Subsidiaries or of Parent and its Subsidiaries or (iv) that would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company (or, following the Effective Time, the Surviving Entity) or Parent; (c) there shall not have been any action taken, or any Applicable Law enacted, enforced, promulgated, issued or deemed applicable to the Merger, by any Governmental Authority, other than the application of the waiting period provisions of the HSR Act to the Merger, that would reasonably be expected to, individually or in the aggregate, result in any of the consequences referred to in clauses (i) through (iv) of Section 9.02(b); (d) since Parent shall have received an opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP in form and substance reasonably satisfactory to Parent, on the basis of certain facts, representations and assumptions set forth in such opinion, dated the Effective Time, to the effect that the Merger will be treated for federal income tax purposes as a reorganization qualifying under the provision of Section 368(a) of the Code and that each of Parent, Merger Subsidiary and the Company will be a party to the reorganization within the meaning of Section 368(b) of the Code. In rendering such opinion, D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP shall be entitled to rely upon representations of officers of Parent and the Company substantially in the form of Exhibits A and B hereto; (e) except as disclosed in a Company SEC Document filed prior to the date hereof or in the Company Disclosure Schedule, from the date of this AgreementAgreement to the Effective Time, there shall not have occurred and be continuing any event, occurrence, development or state of circumstances or facts which, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect on the Company; and (f) the conditions set forth in Sections 9.01(b), 9.01(c), 9.01(f), 9.02(b) and 9.02(c) of the Concurrent Merger Agreement, to the extent they relate to Competition Laws, shall have been satisfied.

Conditions to the Obligations of Parent and Merger Subsidiary. The obligations of Parent and Merger Subsidiary to consummate the Merger are subject to the satisfaction (or, to the extent permissible, waiver by Parent) of the following further conditions: (a) (i) the Company shall have performed in all material respects all of its covenants and obligations hereunder required to be performed by it at or prior to the Effective Time; , (bii) (iA) the representations and warranties of the Company contained in Section 4.05 (CapitalizationSections 4.01(a)(first sentence), 4.02, 4.04(a) and 4.25 shall be true and correct in all respects, except for inaccuracies that are but de minimis, minimis respects which have no adverse effect on the Company’s ability to consummate the Merger at and as of the Effective Time as if made at and as of such time (or, in the case of those other than such representations and warranties that are made by their terms address matters only as of a particular date or periodanother specified time, which shall be true only as of such date or periodtime), (iiB) the representations and warranties of the Company contained in Section 4.01 Sections 4.05(a) (Corporate Existence and Power), Section 4.02 (Corporate Authorizationfirst two sentences) and Section 4.10 4.06(a) (No Undisclosed Material Liabilities), first sentence) shall be true and correct in all material but de minimis respects at and as of the Effective Time as if made at and as of such time (or, in the case of those other than such representations and warranties that are made by their terms address matters only as of a particular date or periodanother specified time, which shall be true only as of such date or periodtime) and (iiiC) the other representations and warranties of the Company contained in this Agreement Article 4 (disregarding all materiality and Material Adverse Effect qualifications contained therein) shall be true and correct (disregarding all qualifications or limitations as to “materially”, “Material Adverse Effect” and words of similar import set forth therein, other than in Section 4.08(a)) at and as of the Effective Time as if made at and as of such time (orother than representations and warranties that by their terms address matters only as of another specified time, which shall be true only as of such time), with, in the case of those representations this clause (C) only, only such exceptions as have not had and warranties that are made as of a particular date or period, as of such date or period), except where the failure of such representations and warranties to be so true and correct would not reasonably be expected to have, have a Material Adverse Effect on the Company; , and (ciii) Parent shall have received a certificate signed by the chief an executive officer or chief financial officer of the Company to the effect of clauses (a) and (b) aboveforegoing effect; and (db) since the date hereof, except as disclosed on Section 9.02(b) of this Agreementthe Company Disclosure Schedule, there shall has not have occurred and be continuing a been any Material Adverse Effect on the Company.

Conditions to the Obligations of Parent and Merger Subsidiary. The obligations of Parent and Merger Subsidiary to consummate the Merger are subject to the satisfaction (oror waiver, if permissible under Applicable Law) on or prior to the extent permissible, waiver by Parent) Closing Date of the following further conditions: (a) (i) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time; , (b) (iii)(A) the representations and warranties of the Company contained in Section 4.01(a), Section 4.02, Section 4.05 (Capitalization) and Section 4.25 shall be true and correct in all respectsrespects (except, except solely with respect to Section 4.05, for inaccuracies that are de minimis, minimis inaccuracies) at and as of the date hereof and the Effective Time as if made at and as of such time (or, in the case of those other than representations and warranties that are made by their terms address matters only as of a particular date or periodanother specified time, which shall be true and correct in all respects (except, solely with respect to Section 4.05, for de minimis inaccuracies) only as of such date or periodtime), and (iiB) the all other representations and warranties of the Company contained in Section 4.01 this Agreement or in any certificate or other writing delivered by the Company pursuant hereto (Corporate Existence disregarding all materiality and Power), Section 4.02 (Corporate AuthorizationMaterial Adverse Effect qualifications contained therein) and Section 4.10 (No Undisclosed Material Liabilities), shall be true and correct in all material respects at and as of the date hereof and the Effective Time as if made at and as of such time (or, in the case of those other than representations and warranties that are made by their terms address matters only as of a particular date or periodanother specified time, as of such date or period) and (iii) the other representations and warranties of the Company contained in this Agreement which shall be true and correct (disregarding all qualifications or limitations as to “materially”, “Material Adverse Effect” and words of similar import set forth therein, other than in Section 4.08(a)) at and as of the Effective Time as if made at and only as of such time (or, in the case of those representations and warranties that are made as of a particular date or period, as of such date or periodtime), except where the failure of with only such representations exceptions as have not had and warranties to be so true and correct would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company; ; and (ciii) Parent shall have received a certificate signed by the chief an executive officer or chief financial officer of the Company to the effect of clauses (a) and (b) aboveforegoing effect; and (db) there shall not have occurred any event, change, effect or development that, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect on the Company since the date of this Agreement, there shall not have occurred and be continuing a Material Adverse Effect on the Company.

Conditions to the Obligations of Parent and Merger Subsidiary. The obligations of Parent and Merger Subsidiary to consummate the Merger are subject to the satisfaction (or, to the extent permissible, waiver by Parent) of the following further conditions: (a) (i) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time; , (bii) (iA) the representations and warranties of the Company contained in Section 4.05 (Capitalization) shall be true and correct in all respects, respects (except for such inaccuracies that as are de minimis, minimis relative to Section 4.05 taken as a whole) at and as of the Effective Time as if made at and as of such time (or, in the case of those other than such representations and warranties that are made by their terms address matters only as of a particular date or periodanother specified time, which shall be true in all respects only as of such date or periodtime), (iiB) the representations and warranties of the Company contained in Section 4.01 (Corporate Existence Sections 4.01, 4.02, 4.21, 4.22 and Power), Section 4.02 (Corporate Authorization) and Section 4.10 (No Undisclosed Material Liabilities), 4.23 shall be true and correct in all material respects at and as of the Effective Time as if made at and as of such time (or, in the case of those other than such representations and warranties that are made by their terms address matters only as of a particular date or periodanother specified time, which shall be true in all material respects only as of such date or periodtime) and (iiiC) the other representations and warranties of the Company contained in this Agreement (disregarding all materiality and Material Adverse Effect qualifications contained therein) shall be true and correct (disregarding all qualifications or limitations as to “materially”, “Material Adverse Effect” and words of similar import set forth therein, other than in Section 4.08(a)) at and as of the Effective Time as if made at and as of such time (orother than representations and warranties that by their terms address matters only as of another specified time, which shall be true only as of such time), with, in the case of those representations this clause (C) only, only such exceptions as have not had and warranties that are made as of a particular date or period, as of such date or period), except where the failure of such representations and warranties to be so true and correct would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company; ; and (ciii) Parent shall have received a certificate signed by the chief an executive officer or chief financial officer of the Company to the effect of clauses (a) and foregoing effect; (b) above; andthere shall not be pending any action or proceeding by any Governmental Authority, (i) challenging or seeking to make illegal, to delay materially or otherwise directly or indirectly to restrain or prohibit the consummation of the Merger, seeking to obtain material damages or otherwise directly or indirectly relating to the transactions contemplated by the Merger, (ii) seeking to restrain or prohibit Parent’s, Merger Subsidiary’s or any of Parent’s other Affiliates’ (A) ability effectively to exercise full rights of ownership of the Company’s capital stock, including the right to vote any shares of the Company’s capital stock acquired or owned by Parent, Merger Subsidiary or any of Parent’s other Affiliates following the Effective Time on all matters properly presented to the Company’s stockholders, or (B) ability to effectively exercise full rights of ownership or operation (or that of its respective Subsidiaries or Affiliates) of any material business or assets of the Company and its Subsidiaries or of Parent and its Subsidiaries or (iii) seeking to compel Parent or any of its Subsidiaries or Affiliates to dispose of or hold separate all or any of any material business or assets of the Company and its Subsidiaries or of Parent and its Subsidiaries or (iv) that would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company (or, following the Effective Time, the Surviving Entity) or Parent; (c) there shall not have been any action taken, or any Applicable Law enacted, enforced, promulgated, issued or deemed applicable to the Merger, by any Governmental Authority, other than the application of the waiting period provisions of the HSR Act to the Merger, that would reasonably be expected to, individually or in the aggregate, result in any of the consequences referred to in clauses (i) through (iv) of Section 9.02(b); (d) since Parent shall have received an opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ llp in form and substance reasonably satisfactory to Parent, on the basis of certain facts, representations and assumptions set forth in such opinion, dated the Effective Time, to the effect that the Merger will be treated for federal income tax purposes as a reorganization qualifying under the provision of Section 368(a) of the Code and that each of Parent, Merger Subsidiary and the Company will be a party to the reorganization within the meaning of Section 368(b) of the Code. In rendering such opinion, ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ llp shall be entitled to rely upon representations of officers of Parent and the Company substantially in the form of Exhibits A and B hereto; (e) except as disclosed in a Company SEC Document filed prior to the date hereof or in the Company Disclosure Schedule, from the date of this AgreementAgreement to the Effective Time, there shall not have occurred and be continuing any event, occurrence, development or state of circumstances or facts which, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect on the Company; and (f) the conditions set forth in Sections 9.01(b), 9.01(c), 9.01(f), 9.02(b) and 9.02(c) of the Concurrent Merger Agreement, to the extent they relate to Competition Laws, shall have been satisfied.

Conditions to the Obligations of Parent and Merger Subsidiary. The obligations obligation of Parent and Merger Subsidiary to consummate the Merger are is further subject to the satisfaction (oror waiver, to the extent permissible, waiver by Parentif permissible under Applicable Law) of the following further conditions: (a) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time;Time of each of the following conditions: (ba) (i) the representations and warranties of the Company contained in Section 4.05 Sections 4.01 (Capitalization) first sentence only), 4.02(a), 4.23 and 4.25 of this Agreement shall be true and correct in all respects, except for inaccuracies that are de minimis, respects as of the date of this Agreement and at and as of the Effective Time as if though made at and as of such time (or, in the case of those representations other than any such representation and warranties warranty that are made by its terms addresses matters only as of a particular date or periodanother specified time, which shall be true and correct in all respects only as of such date or periodtime), (ii) the representations and warranties of the Company contained in Section 4.01 (Corporate Existence and Power), Section 4.02 (Corporate Authorization4.05(a) and Section 4.10 4.05(b) (No Undisclosed Material Liabilities), first sentence only) of this Agreement shall be true and correct in all material respects at as of the date of this Agreement and at and as of the Effective Time as if though made at and as of such time (ortime, in the case of those representations and warranties that are made as of a particular date or period, as of such date or period) except for immaterial inaccuracies and (iii) the all other representations and warranties of the Company contained in this Agreement shall be true and correct (disregarding all qualifications or limitations as to “materially”, “Material Adverse Effect” of the date of this Agreement and words of similar import set forth therein, other than in Section 4.08(a)) at and as of the Effective Time as if though made at and as of such time (or, in the case of those representations other than any such representation and warranties warranty that are made by its terms addresses matters only as of a particular date or periodanother specified time, which shall be true only as of such date time), in each case without regard to any qualifications as to Company Material Adverse Effect or period)materiality contained in such representations and warranties, except where the failure of any such representations and or warranties in this clause (iii) to be so true and correct correct, individually or in the aggregate, has not and would not reasonably be expected to have, have a Company Material Adverse Effect on Effect; (b) the CompanyCompany shall not have breached in any material respect, or failed to perform in all material respects, the obligations required to be performed by it under this Agreement contemplated to be performed at or prior to the Effective Time; (c) Parent shall have received a certificate signed by the chief executive officer or chief financial officer of the Company to the effect of clauses (a) and (b) above; and (d) since the date of this Agreement, there shall not have occurred and been any Circumstance that, individually or in the aggregate, has had or would reasonably be continuing expected to have a Company Material Adverse Effect on and that is continuing; and (d) the CompanyCompany shall have delivered to Parent a certificate signed by an executive officer of the Company dated as of the date of the Effective Time certifying that the conditions specified in Section 9.02(a), Section 9.02(b) and Section 9.02(c) have been satisfied.

Conditions to the Obligations of Parent and Merger Subsidiary. The obligations of Parent and Merger Subsidiary to consummate the Merger are subject to the satisfaction (or, to the extent permissible, waiver by Parent) of the following further conditions: (a) (i) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time; , (bii) (iA) the representations and warranties of the Company contained in Section 4.05 (Capitalization) ‎Section 4.01, ‎Section 4.02, ‎Section 4.20, ‎Section 4.21 and ‎Section 4.22 shall be true and correct in all respects, except for inaccuracies that are de minimis, at and as of the Effective Time as if made at and as of such time (or, in the case of those representations and warranties that are made as of a particular date or period, as of such date or period), (ii) the representations and warranties of the Company contained in Section 4.01 (Corporate Existence and Power), Section 4.02 (Corporate Authorization) and Section 4.10 (No Undisclosed Material Liabilities), shall be true and correct in all material respects at and as of the Effective Time as if made at and as of such time (or, in the case of those other than such representations and warranties that are made by their terms address matters only as of a particular date or periodanother specified time, which shall be true in all material respects only as of such date or period) and time), (iiiB) the other representations and warranties of the Company contained in this Agreement ‎Section 4.05 shall be true and correct (disregarding all qualifications or limitations at and as to “materially”, “Material Adverse Effect” of the date of this Agreement and words of similar import set forth therein, other than in Section 4.08(a)) at and as of the Effective Time as if made at and as of such time (orother than any such representations and warranties that by their terms address matters only at and as of another specified time, which shall be true and correct only at and as of such time), in each case except for any inaccuracies that would not, individually or in the aggregate, increase the aggregate Merger Consideration payable in the Merger by more than 0.5% and (C) the other representations and warranties of the Company contained in this Agreement or in any certificate or other writing delivered by the Company pursuant hereto (disregarding all materiality and Company Material Adverse Effect qualifications contained therein) shall be true at and as of the Effective Time as if made at and as of such time (other than representations and warranties that by their terms address matters only as of another specified time, which shall be true only as of such time), with, in the case of those representations this clause ‎(C) only, only such exceptions as have not had and warranties that are made as of a particular date or period, as of such date or period), except where the failure of such representations and warranties to be so true and correct would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the Company; Effect; and (ciii) Parent shall have received a certificate signed by the chief an executive officer or chief financial officer of the Company to the effect of clauses (a) and foregoing effect; (b) above; andthere shall not have been instituted or pending any action or proceeding by any Governmental Authority (i) challenging or seeking to make illegal, to delay materially or otherwise to restrain or prohibit the consummation of the Merger, seeking to obtain material damages or otherwise relating to the transactions contemplated by this Agreement, (ii) seeking to restrain or prohibit the ownership or operation by Parent, the Company or any of their respective Affiliates of all or any portion of the businesses or assets of any of Parent, the Company or any of their respective Affiliates or (iii) seeking to compel Parent, the Company or any of their respective Affiliates to take any action that would not be required to be taken pursuant to ‎Section 8.01(c), and no Applicable Law shall have been enacted, enforced, promulgated or issued that has, or is reasonably likely to have, any of the effects described in the preceding clauses ‎(i)-‎(iii); (c) no Governmental Authority shall have imposed a condition to the consummation of the Merger that includes the taking of any action that is not required to be taken pursuant to the terms of this Agreement; (d) since the date of this Agreement, there shall not have occurred since the date hereof and be continuing any event, occurrence, revelation or development of a state of circumstances or facts which, individually or in the aggregate, has had or would reasonably be expected to have a Company Material Adverse Effect Effect. Parent and Merger Subsidiary acknowledge and agree that, notwithstanding anything in this Agreement to the contrary, the obligations of Parent and Merger Subsidiary to perform their respective agreements, covenants and obligations hereunder, including their respective obligations to consummate the Closing subject to the terms and conditions hereof, are not conditioned on availability, obtaining or receipt of the CompanyFinancing or any alternative Financing.

Conditions to the Obligations of Parent and Merger Subsidiary. The obligations of Parent and Merger Subsidiary to consummate the Merger are subject to the satisfaction (or, to the extent permissible, waiver by Parent) of the following further conditions: (a) (i) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time; , (bii) (iA) the representations and warranties of the Company contained in Section 4.05 (Capitalization4.10(a)(ii) shall be true and correct in all respects, except for inaccuracies that are de minimis, at and respects as of the Effective Time as if made at and as of such specified time (or, in the case of those representations and warranties that are made as of a particular date or period, as of such date or period)set forth therein, (iiB) the representations and warranties of the Company contained in Section 4.01 (Corporate Existence and PowerSections 4.01(a), Section 4.02 (Corporate Authorization) 4.02, 4.05, 4.24 and Section 4.10 (No Undisclosed Material Liabilities), 4.26 shall be true and correct in all material respects at and as of the Effective Time as if made at and as of such time (or, in the case of those other than (x) such representations and warranties that are made by their terms address matters only as of a particular date or periodanother specified time, which shall be true and correct only as of such date or periodtime and (y) solely with respect to Section 4.05, de minimis errors) and (iiiC) the other representations and warranties of the Company contained in this Agreement Article 4 (disregarding all materiality and Material Adverse Effect qualifications contained therein) shall be true and correct (disregarding all qualifications or limitations as to “materially”, “Material Adverse Effect” and words of similar import set forth therein, other than in Section 4.08(a)) at and as of the Effective Time as if made at and as of such time (orother than representations and warranties that by their terms address matters only as of another specified time, which shall be true and correct only as of such time), with, in the case of those representations this clause (C) only, only such exceptions as have not had and warranties that are made as of a particular date or period, as of such date or period), except where the failure of such representations and warranties to be so true and correct would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company; , and (ciii) Parent shall have received a certificate signed by the chief an executive officer or chief financial officer of the Company to the effect of clauses (a) and foregoing effect; (b) above; and (d) since the date of this Agreement, Agreement there shall not have occurred and be continuing a Material Adverse Effect on the Company; and (c) the Company shall have filed all Company SEC Documents required to be filed with the SEC prior to the Effective Time that are required to contain financial statements.

Conditions to the Obligations of Parent and Merger Subsidiary. The obligations of Parent and Merger Subsidiary to consummate the Merger are subject to the satisfaction or (or, to the extent permissible, permissible under Applicable Law) waiver by Parent) of the following further conditions: (a) (i) (A) the representations and warranties of the Company contained in Section 4.05 (other than the last sentence of Section 4.05(b) and the information set forth on Section 4.05 of the Company Disclosure Schedule with respect to the holder and date of grant) shall be true and correct in all but de minimis respects, (B) any of the representations and warranties of the Company contained in any of Sections 4.01, 4.02, 4.06, 4.08, 4.21, 4.22, 4.23 or 4.24 that are qualified as to materiality or Company Material Adverse Effect shall be true and correct in all respects and any such representations and warranties that are not so qualified shall be true and correct in all material respects, (C) the representation and warranties of the Company contained in Section 4.10(a)(ii) shall be true and correct in all respects, and (D) any of the other representations and warranties of the Company contained in this Agreement (disregarding all materiality and Company Material Adverse Effect qualifications contained therein) shall be true and correct with, in the case of this clause (D) only, only such exceptions as have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, in each case at and as of immediately prior to the Effective Time as if made at and as of such time (other than any such representation and warranty that by its terms addresses matters only as of another specified time, which shall be true and correct only as of such time), (ii) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective TimeTime and (iii) Parent shall have received a certificate dated as of the Closing Date signed by an executive officer of the Company to the foregoing effect; (b) (i) any applicable waiting periods under the representations and warranties of the Company contained in Section 4.05 (Capitalization) HSR Act shall be true and correct in all respects, except for inaccuracies that are de minimis, at and as of the Effective Time as if made at and as of such time (or, in the case of those representations and warranties that are made as of a particular date have expired or period, as of such date or period)been terminated, (ii) any required clearances, approvals and consents under Competition Law of Germany and Austria relating to the representations and warranties of the Company contained in Section 4.01 (Corporate Existence and Power)Merger shall have been received, Section 4.02 (Corporate Authorization) and Section 4.10 (No Undisclosed Material Liabilities), shall be true and correct in all material respects at and as of the Effective Time as if made at and as of such time (or, in the case of those representations and warranties that are made as of a particular date or period, as of such date or period) and (iii) the other representations CFIUS Condition shall have been met, (iv) the DDTC Condition shall have been met and warranties (v) the MINEFI Condition shall have been met (clauses (i) through (v) collectively, the “Required Approvals”), and no such Required Approval shall have expired, terminated or been received subject to, or conditioned upon, (x) any limitation on the ownership of the capital stock of the Company contained in by Parent or any of its Affiliates or (y) any requirement that Parent, the Surviving Corporation or the Company or any of their respective Affiliates take any action that is not required to be taken (or permitted to be taken without Parent’s consent) pursuant to the terms of this Agreement, including Section 8.01(a); and (c) there shall not have been instituted any action, suit or proceeding by any Governmental Authority (that has not been dismissed or otherwise been resolved) seeking to make illegal or otherwise directly or indirectly to restrain or prohibit the consummation of the Merger (including Parent’s direct or indirect ownership of all of the Company’s and its Subsidiaries’ outstanding capital stock); (d) there shall not have occurred following the date of this Agreement shall be true and correct (disregarding all qualifications any event, occurrence or limitations as to “materially”, “Material Adverse Effect” and words of similar import set forth therein, other than in Section 4.08(a)) at and as of the Effective Time as if made at and as of such time (or, in the case of those representations and warranties that are made as development of a particular date state of circumstances or period, as of such date facts which has had or period), except where the failure of such representations and warranties to be so true and correct would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the Company; (c) Parent shall have received a certificate signed by the chief executive officer or chief financial officer of the Company to the effect of clauses (a) and (b) above; and (d) since the date of this Agreement, there shall not have occurred and be continuing a Material Adverse Effect on the CompanyEffect.

Conditions to the Obligations of Parent and Merger Subsidiary. The obligations of Parent and Merger Subsidiary to consummate the Merger are subject to the satisfaction (or, to the extent permissible, waiver by Parent) of the following further conditions: (a) (i) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time; , (bii) (iA) the representations and warranties of the Company contained in Section Sections 4.01, 4.02, 4.04(i), 4.05 (Capitalizationexcept for any de minimis inaccuracy) and 4.25 shall be true and correct in all respects, except for inaccuracies that are de minimis, at and as of the Effective Time as if made at and as of such time (or, in the case of those other than such representations and warranties that are made by their terms address matters only as of a particular date or periodanother specified time, which shall be true only as of such date or periodtime), (iiB) the representations and warranties of the Company contained in Section 4.01 Sections 4.06, 4.24 and 4.26 (Corporate Existence and Power), Section 4.02 (Corporate Authorizationwith respect to Oregon law) and Section 4.10 (No Undisclosed Material Liabilities), shall be true and correct in all material respects at and as of the Effective Time as if made at and as of such time (or, in the case of those other than such representations and warranties that are made by their terms address matters only as of a particular date or periodanother specified time, which shall be true only as of such date or periodtime) and (iiiC) the other representations and warranties of the Company contained in this Agreement or in any certificate or other writing delivered by the Company pursuant hereto (disregarding all materiality and Company Material Adverse Effect qualifications contained therein) shall be true and correct (disregarding all qualifications or limitations as to “materially”, “Material Adverse Effect” and words of similar import set forth therein, other than in Section 4.08(a)) at and as of the Effective Time as if made at and as of such time (orother than representations and warranties that by their terms address matters only as of another specified time, which shall be true only as of such time), with, in the case of those representations this clause (C) only, only such exceptions as have not had and warranties that are made as of a particular date or period, as of such date or period), except where the failure of such representations and warranties to be so true and correct would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the Company; Effect; and (ciii) Parent shall have received a certificate signed by the chief an executive officer or chief financial officer of the Company to the effect of clauses (a) and foregoing effect; (b) abovethere shall not be in effect any restraining order, preliminary or permanent injunction or other similar order by any Governmental Authority and there shall not have been instituted or pending any action or proceeding by any Governmental Authority, in any such case (i) prohibiting, challenging or seeking to make illegal or otherwise directly or indirectly seeking to restrain or prohibit the consummation of the Merger, (ii) seeking to restrain or prohibit Parent’s, Merger Subsidiary’s or any of Parent’s other Affiliates’ (A) ability effectively to exercise full rights of ownership of the stock of the Surviving Corporation, including the right to vote any shares of Company Stock acquired or owned by Parent, Merger Subsidiary or any of Parent’s other Affiliates following the Effective Time on all matters properly presented to the Company’s shareholders, or (B) ownership or operation (or that of its respective Subsidiaries or Affiliates) of all or 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 whole or (iii) seeking to compel Parent or any of its Subsidiaries or Affiliates 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, or of Parent and its Subsidiaries, taken as a whole; and (dc) since the date of this Agreement, there shall not have occurred and any event, occurrence, revelation or development of a state of circumstances or facts which, individually or in the aggregate, has had or would reasonably be continuing expected to have a Company Material Adverse Effect on the CompanyEffect.

Conditions to the Obligations of Parent and Merger Subsidiary. The obligations of Parent and Merger Subsidiary to consummate the Merger are subject to the satisfaction (or, to the extent permissible, or waiver by Parent) of the following further conditions: (a) (i) the Company shall have performed in all material respects all of its material obligations hereunder required to be performed by it at or prior to the Effective Time; , (bii) (iA) the representations and warranties of the Company contained in Sections 4.01, 4.02, 4.04(i), the first sentence and the last two sentences of Section 4.05 (Capitalization4.05(a) and the last sentence of 4.05(b), 4.07(l), 4.10(a)(ii), 4.23, 4.24 and 4.25 that are not qualified by materiality or Company Material Adverse Effect shall be true and correct in all respects, except for inaccuracies material respects and any such representations and warranties that are de minimis, qualified by materiality or Company Material Adverse Effect shall be true and correct at and as of the date of this Agreement and at and as of the Effective Time as if made at and as of such time (or, in the case of those other than any such representations and warranties that are made by their terms address matters only at and as of a particular date another specified time, which shall be true and correct in all material respects or periodtrue and correct, as the case may be, only at and as of such date or periodtime), (iiB) the representations and warranties of the Company contained in Section 4.01 4.05 (Corporate Existence other than the first sentence and Power), the last two sentences of Section 4.02 (Corporate Authorization4.05(a) and the last sentence of Section 4.10 (No Undisclosed Material Liabilities4.05(b), ) shall be true and correct in all material respects correct, subject only to de minimis exceptions, at and as of the date of this Agreement and at and as of the Effective Time as if made at and as of such time (or, in the case of those other than any such representations and warranties that are made by their terms address matters only at and as of a particular date or periodanother specified time, which shall be true and correct, subject only to de minimis exceptions, only at and as of such date or period) time), and (iiiC) the all other representations and warranties of the Company contained in this Agreement or in any certificate or other writing delivered by the Company pursuant hereto shall be true and correct (disregarding all qualifications or limitations as to “materially”, “materiality and Company Material Adverse Effect” Effect qualifications contained therein) at and words as of similar import set forth therein, other than in Section 4.08(a)) the date of this Agreement and at and as of the Effective Time as if made at and as of such time (orother than any such representations and warranties that by their terms address matters only as of another specified time, which shall be true and correct (disregarding all materiality and Company Material Adverse Effect qualifications contained therein) only at and as of such time), with, in the case of those representations this clause (C) only, only such exceptions as have not had and warranties that are made as of a particular date or period, as of such date or period), except where the failure of such representations and warranties to be so true and correct would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the Company; Effect; and (ciii) Parent shall have received a certificate signed by the chief an executive officer or chief financial officer of the Company to the foregoing effect of clauses (aand certifying that the condition set forth in Section 9.02(c) and has been satisfied; (b) aboveParent shall have received the opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, 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 Subsidiary 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(b) of the Code, which opinion shall not have been withdrawn or modified in any material respect. In rendering the opinion described in this Section 9.02(b), D▇▇▇▇ ▇▇▇▇ and W▇▇▇▇▇▇▇ LLP shall have received and may rely upon the Tax Representation Letters referred to in Section 8.07(b) hereof; and (dc) since the date of this Agreementhereof, there shall not have occurred and be continuing any event, occurrence, development or state of circumstances or facts which, individually or in the aggregate, has had or would reasonably be expected to have a Company Material Adverse Effect on the CompanyEffect.

Conditions to the Obligations of Parent and Merger Subsidiary. The obligations of Parent and Merger Subsidiary to consummate the Merger are subject to the satisfaction (or, to the extent permissible, waiver by Parent) of the following further conditions: : (ai) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time; ; (b) (iii) the representations and warranties of the Company contained in Section 4.05 4.05(a) (Capitalization) and the first two sentences of Section 4.05(c) (Capitalization) shall be true and correct in all respects, except for respects (other than inaccuracies that are in the aggregate de minimis); (iii) the representations and warranties of the Company contained in Sections 4.01 (Corporate Existence and Power), Section 4.02 (Corporate Authorization), Section 4.05 (Capitalization) (except as provided in Section 9.02(ii)), Section 4.21 (Finders’ Fees), Section 4.22 (Opinion of Financial Advisor) and Section 4.23 (Antitakeover Statutes) shall be true in all material respects at and as of immediately prior to the Effective Time as if made at and as of such time (or, in the case of those other than such representations and warranties that are made by their terms address matters only as of a particular date or periodanother specified time, which shall be true in all material respects only at and as of such date or periodtime), ; (iiiv) the other representations and warranties of the Company contained in Section 4.01 this Agreement (Corporate Existence disregarding all materiality and Power), Section 4.02 (Corporate AuthorizationCompany Material Adverse Effect qualifications contained therein) and Section 4.10 (No Undisclosed Material Liabilities), shall be true and correct in all material respects at and as of immediately prior to the Effective Time as if made at and as of such time (orother than representations and warranties that by their terms address matters only as of another specified time, which shall be true only at and as of such time), with, in the case of those representations this clause (iv) only, only such exceptions as have not had and warranties that are made as of a particular date or period, as of such date or period) and (iii) the other representations and warranties of the Company contained in this Agreement shall be true and correct (disregarding all qualifications or limitations as to “materially”, “Material Adverse Effect” and words of similar import set forth therein, other than in Section 4.08(a)) at and as of the Effective Time as if made at and as of such time (or, in the case of those representations and warranties that are made as of a particular date or period, as of such date or period), except where the failure of such representations and warranties to be so true and correct would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the Company; Effect; (cv) Parent shall have received a certificate signed by the chief an executive officer or chief financial officer of the Company to the effect of clauses foregoing effect; (avi) from and (b) above; and (d) since after the date of this Agreement, there shall not have occurred and any event, circumstance, change, occurrence, development, condition or effect that, has had or would reasonably be continuing expected to have, individually or in the aggregate, a Company Material Adverse Effect on Table of Contents that is continuing; and (vii)(A) there shall be no Applicable Law in any Specified Jurisdiction or Other Jurisdiction and (B) no Governmental Authority in any Specified Jurisdiction or Other Jurisdiction having jurisdiction over any party hereto shall have enacted, issued, promulgated, enforced or entered any injunction, order or decree, whether temporary, preliminary or permanent, that, in each case, remains in effect and makes illegal, enjoins or otherwise prohibits the Companyconsummation of the Merger or the other transactions contemplated by this Agreement.

Conditions to the Obligations of Parent and Merger Subsidiary. The obligations of Parent and Merger Subsidiary to consummate effect the Merger are further subject to the satisfaction (or, to the extent permissible, waiver by Parent) fulfillment of the following further conditions: (a) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time; (b) (i) the representations and warranties of the Company contained in (other than Section 4.05 4.01(a) (Capitalizationfirst sentence), Section 4.02, Section 4.05(a) and Section 4.05(b)) set forth herein that are qualified by a “Material Adverse Effect” shall be true and correct in all respects, except for inaccuracies that are de minimis, as so qualified at and as of the Effective Time Closing Date as if made at and as of such time (orexcept to the extent any such representation or warranty expressly related to an earlier date, in the which case of those representations and warranties that are made as of a particular date or period, as of such date or perioddate), (ii) the representations and warranties of the Company contained in (other than Section 4.01 4.01(a) (Corporate Existence and Powerfirst sentence), Section 4.02 4.02, Section 4.05(a), Section 4.05(b)) set forth herein that are not qualified by a “Material Adverse Effect” shall be true and correct at and as of the Closing Date as if made at and as of such time (Corporate Authorizationexcept to the extent any such representation or warranty expressly relates to an earlier date, in which case as of such date), disregarding for these purposes any references to “material” or similar materiality qualifiers therein, except where the failure of such representations and warranties to be true and correct, individually or in the aggregate, would not have or reasonably be expected to result in a Material Adverse Effect on the Company, (iii) the representations and warranties of the Company set forth in Section 4.01(a)(first sentence) and Section 4.10 (No Undisclosed Material Liabilities), 4.02 shall be true and correct in all material respects at and as of the Effective Time Closing Date as if made at and as of such time (orexcept to the extent any such representation or warranty expressly related to an earlier date, in the which case of those representations and warranties that are made as of a particular date or period, as of such date or perioddate) and (iiiiv) the other representations and warranties of the Company contained set forth in this Agreement Section 4.05(a) and Section 4.05(b) shall be true and correct (disregarding all qualifications or limitations as to “materially”, “Material Adverse Effect” and words of similar import set forth therein, other than in Section 4.08(a)) at and as of the Effective Time Closing Date as if made at and as of such time (orexcept to the extent any such representation or warranty expressly related to an earlier date, in the which case of those representations and warranties that are made as of a particular date or period, as of such date date) except for inaccuracies that individually or period), except where in the failure of such representations aggregate are de minimis; (b) the Company shall have in all material respects performed all obligations and warranties complied with all covenants required by this Agreement to be so true and correct would not reasonably be expected performed or complied with by it prior to have, a Material Adverse Effect on the Company;Effective Time; and (c) Parent the Company shall have received delivered to Parent a certificate certificate, dated the Closing Date and signed by the chief executive officer its Chief Executive Officer or chief financial officer of the Company another senior officer, certifying to the effect of clauses (athat the conditions set forth in Section 9.03(a) and (b9.03(b) above; and (d) since the date of this Agreement, there shall not have occurred and be continuing a Material Adverse Effect on the Companybeen satisfied.

Conditions to the Obligations of Parent and Merger Subsidiary. The obligations of Parent and Merger Subsidiary to consummate the Merger are further subject to the satisfaction or (or, to the extent permissible, where permitted by Applicable Law) written waiver by Parent) Parent of the following further conditions: (a) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time; (b) (i) The representation and warranty set forth in Section 4.10(b) shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date with the same force and effect as if made on and as of such date (other than any such representation and warranty that by its terms addresses matters only as of another specified time, which shall be true and correct in all respects as of such specified time); (ii) each of the representations and warranties in (x) Section 4.05(a), (y) Section 4.05(b) and (z) the first sentence of Section 4.05(c) shall be true and correct in all respects except for any de minimis inaccuracies as of the date of this Agreement and as of the Closing Date with the same force and effect as if made on and as of such date (other than any such representation and warranty that by its terms addresses matters only as of another specified time, which shall be true and correct in all respects except for any de minimis inaccuracies as of such specified time); (iii) each of the representations and warranties of the Company contained in Section 4.05 4.01, Section 4.02, Section 4.05(c) (Capitalization) shall be true and correct in all respects, except for inaccuracies that are de minimis, at and as of other than the Effective Time as if made at and as of such time (or, in the case of those representations and warranties that are made as of a particular date or period, as of such date or period), (ii) the representations and warranties of the Company contained in Section 4.01 (Corporate Existence and Powerfirst sentence thereof), Section 4.02 (Corporate Authorization) 4.06, Section 4.23 and Section 4.10 4.24 (No Undisclosed in each case disregarding all materiality qualifications, other than Material Liabilities)Adverse Effect qualifications, contained therein) shall be true and correct in all material respects at as of the date of this Agreement and as of the Effective Time Closing Date with the same force and effect as if made at on and as of such time date (or, in the case of those representations other than any such representation and warranties warranty that are made by its terms addresses matters only as of a particular date or periodanother specified time, which shall be true and correct in all material respects as of such date or period) specified time); and (iiiiv) each of the other representations and warranties of the Company contained in this Agreement (disregarding all materiality and Material Adverse Effect qualifications contained therein) shall be true and correct (disregarding all qualifications or limitations as to “materially”, “Material Adverse Effect” and words of similar import set forth therein, other than in Section 4.08(a)) at the date of this Agreement and as of the Effective Time Closing Date with the same force and effect as if made at on and as of such time date (orother than any such representation and warranty that by its terms addresses matters only as of another specified time, which shall be true and correct as of such specified time), except, in the case of those representations and warranties that are made as of a particular date or period, as of such date or periodthis clause (iv), except where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company;. (b) The Company shall have performed and complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by it at or prior to the Effective Time. (c) Parent shall have received a certificate signed by the chief executive officer or chief financial officer of the Company to the effect of clauses (a) and (b) above; and (d) since Since the date of this Agreement, there shall not have occurred and be continuing a been any Material Adverse Effect on the Company. (d) The Company shall have delivered to Parent a certificate signed by an executive officer of the Company and dated as of the Closing Date certifying as to the satisfaction of the conditions specified in Section 9.02(a), Section 9.02(b) and Section 9.02(c).

Conditions to the Obligations of Parent and Merger Subsidiary. The obligations of Parent and Merger Subsidiary to consummate the Merger are subject to the satisfaction (or, to the extent permissible, waiver by Parent) of the following further conditions: (a) (i) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time; , (bii) (iA) the representations and warranties of the Company contained in Section 4.05 (Capitalization) shall be true and correct in all respects, respects (except for such inaccuracies that as are de minimis, minimis relative to Section 4.05 taken as a whole) at and as of the Effective Time as if made at and as of such time (or, in the case of those other than such representations and warranties that are made by their terms address matters only as of a particular date or periodanother specified time, which shall be true in all respects only as of such date or periodtime), (iiB) the representations and warranties of the Company contained in Section 4.01 (Corporate Existence Sections 4.01, 4.02, 4.21, 4.22 and Power), Section 4.02 (Corporate Authorization) and Section 4.10 (No Undisclosed Material Liabilities), 4.23 shall be true and correct in all material respects at and as of the Effective Time as if made at and as of such time (or, in the case of those other than such representations and warranties that are made by their terms address matters only as of a particular date or periodanother specified time, which shall be true in all material respects only as of such date or periodtime) and (iiiC) the other representations and warranties of the Company contained in this Agreement or in any certificate or other writing delivered by the Company pursuant hereto (disregarding all materiality and Material Adverse Effect qualifications contained therein) shall be true and correct (disregarding all qualifications or limitations as to “materially”, “Material Adverse Effect” and words of similar import set forth therein, other than in Section 4.08(a)) at and as of the Effective Time as if made at and as of such time (orother than representations and warranties that by their terms address matters only as of another specified time, which shall be true only as of such time), with, in the case of those representations this clause (C) only, only such exceptions as have not had and warranties that are made as of a particular date or period, as of such date or period), except where the failure of such representations and warranties to be so true and correct would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company; ; and (ciii) Parent shall have received a certificate signed by the chief an executive officer or chief financial officer of the Company to the effect of clauses (a) and foregoing effect; (b) abovethere shall not be pending any action or proceeding by any Governmental Authority, (i) challenging or seeking to make illegal, to delay materially or otherwise directly or indirectly to restrain or prohibit the consummation of the Merger, seeking to obtain material damages or otherwise directly or indirectly relating to the transactions contemplated by the Merger, (ii) seeking to restrain or prohibit Parent’s, Merger Subsidiary’s or any of Parent’s other Affiliates’ (A) ability effectively to exercise full rights of ownership of the Company’s capital stock, including the right to vote any shares of the Company’s capital stock acquired or owned by Parent, Merger Subsidiary or any of Parent’s other Affiliates following the Effective Time on all matters properly presented to the Company’s stockholders, or (B) ability to effectively exercise full rights of ownership or operation (or that of its respective Subsidiaries or Affiliates) of any material business or assets of the Company and its Subsidiaries, or of Parent and its Subsidiaries or (iii) seeking to compel Parent or any of its Subsidiaries or Affiliates to dispose of or hold separate all or any of any material business or assets of the Company and its Subsidiaries or of Parent and its Subsidiaries, or (iv) that would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company (or, following the Effective Time, the Surviving Entity) or Parent; (c) there shall not have been any action taken, or any Applicable Law enacted, enforced, promulgated, issued or deemed applicable to the Merger, by any Governmental Authority, other than the application of the waiting period provisions of the HSR Act to the Merger, that would reasonably be expected to, individually or in the aggregate, result in any of the consequences referred to in clauses (i) through (iv) of Section 9.02(b); (d) Parent shall have received an opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP in form and substance reasonably satisfactory to Parent, on the basis of certain facts, representations and assumptions set forth in such opinion, dated the Effective Time, to the effect that the Merger will be treated for federal income tax purposes as a reorganization qualifying under the provision of Section 368(a) of the Code and that each of Parent, Merger Subsidiary and the Company will be a party to the reorganization within the meaning of Section 368(b) of the Code. In rendering such opinion, ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall be entitled to rely upon representations of officers of Parent and the Company substantially in the form of Exhibits A and B hereto; and (de) since from the date of this AgreementAgreement to the Effective Time, there shall not have occurred and be continuing any event, occurrence, development or state of circumstances or facts which, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect on the Company.

Conditions to the Obligations of Parent and Merger Subsidiary. The obligations of Parent and Merger Subsidiary to consummate the Merger are further subject to the satisfaction or (or, to the extent permissible, where permitted by Applicable Law) written waiver by Parent) Parent of the following further conditions: (a) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time; (b) (i) Each of the representations and warranties of the Company contained in Section 4.05 4.02, Section 4.05(a) (Capitalizationexcept for any de minimis inaccuracy), Section 4.05(b) (except for any de minimis inaccuracy), and Section 4.10(b) shall be true and correct in all respects, except for inaccuracies that are de minimis, at respects as of the date of this Agreement and as of the Effective Time Closing Date with the same force and effect as if made at on and as of such time date (or, in the case of those representations other than any such representation and warranties warranty that are made by its terms addresses matters only as of a particular date or periodanother specified time, which shall be true and correct as of such date or periodspecified time), ; (ii) each of the representations and warranties of the Company contained in Section 4.01 (Corporate Existence and Power)4.01, Section 4.02 (Corporate Authorization4.05(d) and Section 4.10 (No Undisclosed Material Liabilities), 4.21 shall be true and correct in all material respects at as of the date of this Agreement and as of the Effective Time Closing Date with the same force and effect as if made at on and as of such time date (or, in the case of those representations other than any such representation and warranties warranty that are made by its terms addresses matters only as of a particular date or periodanother specified time, which shall be true and correct as of such date or period) specified time); and (iii) each of the other representations and warranties of the Company contained in this Agreement (disregarding all materiality and Material Adverse Effect qualifications contained therein) shall be true and correct (disregarding all qualifications or limitations as to “materially”, “Material Adverse Effect” and words of similar import set forth therein, other than in Section 4.08(a)) at the date of this Agreement and as of the Effective Time Closing Date with the same force and effect as if made at on and as of such time date (orother than any such representation and warranty that by its terms addresses matters only as of another specified time, which shall be true and correct as of such specified time), except, in the case of those representations and warranties that are made as of a particular date or period, as of such date or period), except this clause (iii) where the failure of such representations and warranties to be so true and correct would not reasonably be expected to have, a Material Adverse Effect on individually or in the Company; (c) Parent shall have received a certificate signed by the chief executive officer or chief financial officer of the Company to the effect of clauses (a) and (b) above; and (d) since the date of this Agreementaggregate, there shall not have occurred and be continuing a Material Adverse Effect on the Company. (b) The Company shall have performed and complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by it at or prior to the Effective Time. (c) The Company shall have delivered to Parent a certificate signed by an executive officer of the Company and dated as of the Closing Date certifying as to the satisfaction of the conditions specified in Section 9.02(a) and Section 9.02(b).

Conditions to the Obligations of Parent and Merger Subsidiary. The obligations of Parent and Merger Subsidiary to consummate the Merger are further subject to the satisfaction or (or, to the extent permissible, where permitted by Applicable Law) written waiver by Parent) Parent of the following further conditions: (a) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time; (b) (i) Each of the representations and warranties of the Company contained in Section 4.05 (Capitalization4.01, Section 4.02, and Section 4.10(b) shall be true and correct in all respects, except for inaccuracies that are de minimis, at respects as of the date of this Agreement and as of the Effective Time Closing Date with the same force and effect as if made at on and as of such time date (orother than any such representation and warranty that by its terms addresses matters only as of another specified time, in which shall be true and correct as of such specified time); (ii) each of the case of those representations and warranties that are made set forth in Section 4.05(a) and Section 4.05(b) shall be true and correct in all respects (except for de minimus inaccuracies) as of a particular the date or period, of this Agreement and as of the Closing Date with the same force and effect as if made on and as of such date or period(other than any such representation and warranty that by its terms addresses matters only as of another specified time, which shall be true and correct (except for de minimus inaccuracies) as of such specified time), ; (iiiii) each of the representations and warranties of the Company contained in Section 4.01 (Corporate Existence and Power4.05(c), Section 4.02 (Corporate Authorization) 4.05(d), Section 4.06, Section 4.21 and Section 4.10 (No Undisclosed Material Liabilities), 4.22 shall be true and correct in all material respects at as of the date of this Agreement and as of the Effective Time Closing Date with the same force and effect as if made at on and as of such time date (or, in the case of those representations other than any such representation and warranties warranty that are made by its terms addresses matters only as of a particular date or periodanother specified time, which shall be true and correct as of such date or period) specified time); and (iiiiv) each of the other representations and warranties of the Company contained in this Agreement (disregarding all materiality and Material Adverse Effect qualifications contained therein) shall be true and correct (disregarding all qualifications or limitations as to “materially”, “Material Adverse Effect” and words of similar import set forth therein, other than in Section 4.08(a)) at the date of this Agreement and as of the Effective Time Closing Date with the same force and effect as if made at on and as of such time date (orother than any such representation and warranty that by its terms addresses matters only as of another specified time, which shall be true and correct as of such specified time), except, in the case of those representations and warranties that are made as of a particular date or period, as of such date or periodthis clause (iv), except where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have, a Material Adverse Effect on individually or in the Company; (c) Parent shall have received a certificate signed by the chief executive officer or chief financial officer of the Company to the effect of clauses (a) and (b) above; and (d) since the date of this Agreementaggregate, there shall not have occurred and be continuing a Material Adverse Effect on the Company. (b) The Company shall have performed and complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by it at or prior to the Effective Time. (c) There shall not have been or occurred since the date of this Agreement any event, occurrence, development, effect, change or state of circumstances or facts that continues to exist or is continuing, as the case may be, that has had or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. (d) The Company shall have delivered to Parent a certificate signed by an executive officer of the Company and dated as of the Closing Date certifying as to the satisfaction of the conditions specified in Section 9.02(a) and Section 9.02(b).

Conditions to the Obligations of Parent and Merger Subsidiary. The obligations of Parent and Merger Subsidiary to consummate the Merger are subject to the satisfaction (or, to the extent permissible, waiver by Parent) of the following further conditions: (a) (i) the Company shall have performed or complied with, in all material respects respects, all of its obligations hereunder required to be performed by it at or prior to the Effective Time; , (bii) (iA) the representations and warranties of the Company contained in Section 4.05 (Capitalization4.10(a) shall be true and correct in all respectsrespects as of the date of this Agreement and at and as of the Effective Time as if made at and as of such time, except for inaccuracies that are de minimis(B) the representations and warranties of the Company contained in Section 4.01(a), Section 4.02, Section 4.06, Section 4.24, Section 4.25 and Section 4.26 (disregarding all materiality and Material Adverse Effect qualifications contained therein) shall be true in all material respects as of the date of this Agreement and at and as of the Effective Time as if made at and as of such time (or, in the case of those other than such representations and warranties that are made by their terms address matters only as of a particular date or periodanother specified time, which shall be true only as of such date or periodtime), (iiC) the representations and warranties of the Company contained set forth in Section 4.01 4.05 (Corporate Existence disregarding all materiality and Power), Section 4.02 (Corporate AuthorizationMaterial Adverse Effect qualifications contained therein) and Section 4.10 (No Undisclosed Material Liabilities), shall be true and correct in all material but de minimis respects as of the date of this Agreement and as of the Effective Time as if at and as of such time (other than such representations and warranties that by their terms address matters only as of another specified time, which shall be true only as of such time), and (D) the other representations and warranties of the Company contained in Article 4 (disregarding all materiality and Material Adverse Effect qualifications contained therein) shall be true and correct as of the date of this Agreement and at and as of the Effective Time as if made at and as of such time (orother than representations and warranties that by their terms address matters only as of another specified time, which shall be true only as of such time), with, in the case of those representations and warranties that are made this clause (D) only, only such exceptions as of a particular date would not have, individually or period, as of such date or period) and (iii) the other representations and warranties of the Company contained in this Agreement shall be true and correct (disregarding all qualifications or limitations as to “materially”, “Material Adverse Effect” and words of similar import set forth therein, other than in Section 4.08(a)) at and as of the Effective Time as if made at and as of such time (or, in the case of those representations and warranties that are made as of a particular date or period, as of such date or period), except where the failure of such representations and warranties to be so true and correct would not reasonably be expected to haveaggregate, a Material Adverse Effect on the Company; Effect, and (ciii) Parent shall have received a certificate signed by the chief an executive officer or chief financial officer of the Company to the effect of clauses (a) and (b) aboveforegoing effect; and (db) since the date of this Agreement, Agreement there shall not have occurred and be continuing a Material Adverse Effect on the Company.

Conditions to the Obligations of Parent and Merger Subsidiary. The obligations of Parent and Merger Subsidiary to consummate the Merger are subject to the satisfaction (or, to the extent permissible, waiver by Parent) of the following further conditions: (a) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time; (b) (i) the representations and warranties of the Company contained set forth in Section Sections 4.01, 4.03, 4.04 and 4.05 (Capitalizationgiving effect to all materiality and Material Adverse Effect qualifications contained therein) 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 such date (other than representations and warranties that by their terms address matters only as of another specified date, which shall be true only as of such date) in all respects, respects (except for inaccuracies that are de minimisminimis inaccuracies); and (ii) the representations and warranties of the Company (other than representations and warranties set forth in Sections 4.01, 4.03, 4.04 and 4.05) contained in this Agreement (disregarding all materiality and Material Adverse Effect qualifications contained therein) shall be true at and as of the Effective Time as if made at and as of such time (or, in the case of those other than representations and warranties that are made by their terms address matters only as of a particular date or periodanother specified time, which shall be true only as of such date or periodtime), (ii) the representations with only such exceptions as have not had and warranties of the Company contained in Section 4.01 (Corporate Existence and Power), Section 4.02 (Corporate Authorization) and Section 4.10 (No Undisclosed Material Liabilities), shall be true and correct in all material respects at and as of the Effective Time as if made at and as of such time (or, in the case of those representations and warranties that are made as of a particular date or period, as of such date or period) and (iii) the other representations and warranties of the Company contained in this Agreement shall be true and correct (disregarding all qualifications or limitations as to “materially”, “Material Adverse Effect” and words of similar import set forth therein, other than in Section 4.08(a)) at and as of the Effective Time as if made at and as of such time (or, in the case of those representations and warranties that are made as of a particular date or period, as of such date or period), except where the failure of such representations and warranties to be so true and correct would not reasonably be expected to have, have a Material Adverse Effect on the Company; (c) Parent shall have received a certificate signed by the chief executive officer or chief financial officer of the Company to the effect of clauses (a) and (b) above; and (d) since the date of this Agreement, there shall not have occurred and be continuing a any Material Adverse Effect on the Company; and (d) Parent shall have received a certificate signed by an executive officer of the Company to the foregoing effect.

Conditions to the Obligations of Parent and Merger Subsidiary. The obligations obligation of Parent and Merger Subsidiary to consummate the Merger are is subject to the satisfaction (or, to the extent permissiblepermissible under Applicable Law and this Agreement, waiver by Parent) waiver, as of the Closing, of the following further conditions: (a) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time; (b) (i) the representations and warranties of the Company contained in Section 4.05 (Capitalization4.05(a), Section 4.05(b) and Section 4.05(d) shall be true and correct in all but de minimis respects, except for inaccuracies that are de minimis, at and as of the Effective Time as if made at and as of such time (or, in the case of those representations and warranties that are made as of a particular date or period, as of such date or period), (ii) the representations and warranties of the Company contained in any of Section 4.01 (Corporate Existence and Power)4.01, Section 4.02 (Corporate Authorization) 4.04, Section 4.06, Section 4.23, Section 4.24, and Section 4.10 (No Undisclosed 4.25 that are qualified as to materiality or Company Material Liabilities), Adverse Effect shall be true and correct in all respects and any such representations and warranties that are not so qualified shall be true and correct in all material respects at and as of respects, (iii) the Effective Time as if made at and as of such time (or, in the case of those representations and warranties that are made as of a particular date or period, as of such date or periodthe Company contained in Section 4.02 and Section 4.10(a) shall be true and correct in all respects and (iiiiv) the other representations and warranties of the Company contained in this Agreement (disregarding all materiality and Company Material Adverse Effect qualifications and limitations contained therein) shall be true and correct with, in the case of this clause (disregarding all qualifications iv) only, only such exceptions as have not had and would not reasonably be expected to have, individually or limitations as to “materially”in the aggregate, “a Company Material Adverse Effect” and words , in the case of similar import set forth therein, other than in Section 4.08(a)each of clauses (i) at through (iv) as of the date of this Agreement and as of the Effective Time date of the Closing as if made at and as of such time date (orother than any such representation and warranty that by its terms addresses matters only as of another specified time, in which shall be true only as of such time); provided that (A) (x) if an Outlet Sale has been consummated, the case of those representations and warranties that are made of the Company contained in Article 4 of this Agreement shall be disregarded for purposes of this Section 9.02(a) to extent related to the Outlet Segment, and (y) any failure of a representation or warranty contained in Article 4 of this Agreement to be true and correct as of a particular date or period, the Closing as of such date or period), except where required by this Section 9.02(a) shall be disregarded to the extent the failure of such representations and warranties representation or warranty to be so true and correct would not reasonably results from the taking of any action or change by the Company regarding the operations of the Hometown Segment proposed by Parent in accordance with clause (a) of Section 6.09, and (B) in the case of the representation and warranty in Section 4.27, to the extent the failure of such representation or warranty to be expected so true and correct results solely from actions taken by Parent in violation of this Agreement or ESL in violation of the ESL Letter Agreement, the failure of such representation to havebe so true and correct as required by this Section 9.02(a) shall be disregarded; (b) no Credit Agreement Event of Default shall have occurred and be continuing, a Material Adverse Effect on other than any Credit Agreement Event of Default arising solely from actions taken by Parent in violation of this Agreement or ESL in violation of the CompanyESL Letter Agreement; (c) Parent the Company shall have received a certificate signed performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the date of the Closing; provided that failure by the chief executive officer Company to perform in all material respects its obligations under Section 6.10 shall not constitute a failure to satisfy the condition in this Section 9.02(c) except to the extent such failure by the Company to so perform results from the bad faith or chief financial officer gross negligence of the Company or a willful breach of Section 6.10 by the Company and, if capable of being cured, is not cured by the Company within five Business Days following delivery of written notice of such breach or failure to the effect of clauses (a) and (b) above; andperform from Parent; (d) since the date of this Agreement, there shall not have occurred and any event, occurrence, development or state of circumstances or facts which, individually or in the aggregate, has had or would reasonably be continuing expected to have a Company Material Adverse Effect on Effect; provided that no such event, occurrence, development or state of circumstances or facts that results from the Companytaking of any action or change by the Company regarding the operations of the Hometown Segment proposed by Parent in accordance with clause (a) of Section 6.09; and (e) Parent shall have received at the Closing a certificate executed by an authorized executive officer of the Company dated as of the Closing certifying that the conditions to Closing specified in Section 9.02(a), Section 9.02(b), Section 9.02(c) and Section 9.02(d) have been satisfied.

Conditions to the Obligations of Parent and Merger Subsidiary. The obligations of Parent and Merger Subsidiary to consummate the Merger are subject to the satisfaction (or, to the extent permissible, waiver by Parent) of the following further conditions: (a) (i) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time; , (b) (iii) the representations and warranties of the Company contained in Section 4.05 this Agreement and in any certificate or other writing delivered by the Company pursuant hereto (Capitalizationwithout regard to materiality or Material Adverse Effect qualifiers contained therein) shall be true and correct in all respects, except for inaccuracies that are de minimis, at and as of the date of this Agreement and the Effective Time as if made at and as of such time (or, in the case of those other than representations and warranties that are made as of a particular date or periodspecified date, which shall be true and correct as of such date or periodspecified date), except where the failure to be so true and correct individually or in the aggregate has not had and would not reasonably be expected to have a Material Adverse Effect on the Company; provided that (iiA) the representations and warranties of the Company contained in Section 4.01 (Corporate Existence and PowerSections 4.01, 4.02, 4.04(i), Section 4.02 (Corporate Authorization) 4.05, 4.21 and Section 4.10 (No Undisclosed 4.22 that are qualified by materiality or Material Liabilities), Adverse Effect shall be true and correct in all material respects at and as of the date of this Agreement and the Effective Time as if made at and as of such time (or, in the case of those other than representations and warranties that are made as of a particular date or periodspecified date, as of such date or period) and (iii) the other representations and warranties of the Company contained in this Agreement which shall be true and correct (disregarding all qualifications or limitations as to “materially”, “Material Adverse Effect” and words of similar import set forth therein, other than in Section 4.08(a)) at and as of the Effective Time as if made at and as of such time specified date), and (or, in B) the case of those representations and warranties that are made as of a particular date or periodin Sections 4.01, as of such date or period4.02, 4.04(i), except where the failure of such representations and warranties to be so true and correct would not reasonably be expected to have4.05, a Material Adverse Effect on the Company; (c) Parent shall have received a certificate signed by the chief executive officer or chief financial officer of the Company to the effect of clauses (a) and (b) above; 4.21 and (d) since the date of this Agreement, there shall not have occurred and be continuing a Material Adverse Effect on the Company.

Conditions to the Obligations of Parent and Merger Subsidiary. The obligations of Parent and Merger Subsidiary to consummate the Merger are subject to the satisfaction (oror waiver, if permissible under Applicable Law) on or prior to the extent permissible, waiver by Parent) Closing Date of the following further conditions: (a) (i) the Company shall have performed or complied in all material respects with all of its obligations and covenants hereunder required to be performed or complied with by it at or prior to the Effective Time; , (b) (iii)(A) the representations and warranties of the Company contained in Section 4.05 4.05(a), Section 4.05(c) or in any certificate or other writing relating to Section 4.05(a) or Section 4.05(c) delivered by the Company pursuant thereto (Capitalizationother than the information set forth on Section 4.05(a) or Section 4.05(c) of the Company Disclosure Schedule with respect to the holder and the date of grant) shall be true and correct in all respects, except for inaccuracies that are de minimis, at and as of the date of this Agreement and the Effective Time as if made at and as of such time, other than with respect to de minimis inaccuracies and (B) the representations and warranties of the Company contained in Section 4.01(a), Section 4.02, Section 4.03, the first and third sentences of Section 4.05(b), Section 4.05(d), and Section 4.23 or in any certificate or other writing delivered by the Company relating to Section 4.01(a), Section 4.02, Section 4.03, the first and third sentences of Section 4.05(b), Section 4.05(d), or Section 4.23 (disregarding all materiality and Material Adverse Effect qualifications contained therein) shall be true at and as of the date of this Agreement and the Effective Time as if made at and as of such time (or, in the case of those other than representations and warranties that are made by their terms address matters only as of a particular date or periodanother specified time, which shall be true only as of such date or periodtime), in all material respects, and (iiC) the other representations and warranties of the Company contained in Section 4.01 this Agreement or in any certificate or other writing delivered by the Company pursuant hereto (Corporate Existence disregarding all materiality and Power), Section 4.02 (Corporate AuthorizationMaterial Adverse Effect qualifications contained therein) and Section 4.10 (No Undisclosed Material Liabilities), shall be true and correct in all material respects at and as of the date of this Agreement and the Effective Time as if made at and as of such time (orother than representations and warranties that by their terms address matters only as of another specified time, which shall be true only as of such time), with, in the case of those representations and warranties that are made as of a particular date or period, as of such date or period) and this clause (iii) the other representations and warranties of the Company contained in this Agreement shall be true and correct (disregarding all qualifications or limitations as to “materially”, “Material Adverse Effect” and words of similar import set forth therein, other than in Section 4.08(a)) at and as of the Effective Time as if made at and as of such time (or, in the case of those representations and warranties that are made as of a particular date or period, as of such date or periodC), except where the failure of only such representations exceptions as have not had and warranties to be so true and correct would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company; ; and (ciii) Parent shall have received a certificate signed by the chief an executive officer or chief financial officer of the Company to the effect of clauses (a) and foregoing effect; (b) above; and (d) there shall not have occurred since the date of this AgreementAgreement any event, there shall not occurrence, revelation or development of a state of circumstances or facts which, individually or in the aggregate, has had or would reasonably be expected to have occurred and be continuing a Material Adverse Effect on the Company, and Parent shall have received a certificate signed by an executive officer of the Company to the foregoing effect; and (c) the Company shall have provided to Parent a certification that complies with the requirements of Treasury Regulation Sections 1.897-2(h) and 1.1445-2(c)(3) to the effect that the shares of Company Stock are not U.S. real property interests within the meaning of Section 897 of the Code.

Conditions to the Obligations of Parent and Merger Subsidiary. The obligations of NICE, Parent and Merger Subsidiary to consummate the Merger are subject to the satisfaction (oror waiver, if permissible under Applicable Law) on or prior to the extent permissible, waiver by Parent) Closing Date of the following further conditions: (a) (i) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time; , (bii) (iA) the representations and warranties of the Company contained in Section 4.05(a) and the second and third sentences of Section 4.05(c) (other than the information set forth on Section 4.05 (Capitalizationof the Company Disclosure Schedule with respect to the holder and the date of grant) shall be true at and correct as of the Effective Time as if made at and as of such time (other than such representations and warranties that by their terms address matters only as of another specified time, which shall be true only as of such time), with, in the case of this clause (A), only such exceptions that in the aggregate do not result in a net increase to the total amount of consideration to be paid by Parent pursuant to Article 2 by more than $800,000, (B) the Fundamental Representations that are qualified by materiality or Material Adverse Effect shall be true in all respects and the Fundamental Representations that are not qualified by materiality or Material Adverse Effect shall be true in all material respects, except for inaccuracies that are de minimisin each case, at and as of the Effective Time as if made at and as of such time (or, in the case of those other than such representations and warranties that are made by their terms address matters only as of a particular date or periodanother specified time, which shall be true in all material respects only as of such date or period), time) and (iiC) the other representations and warranties of the Company set forth in Article 4 (disregarding all materiality and Material Adverse Effect qualifications contained in Section 4.01 (Corporate Existence and Power), Section 4.02 (Corporate Authorizationtherein) and Section 4.10 (No Undisclosed Material Liabilities), shall be true and correct in all material respects at and as of the Effective Time as if made at and as of such time (orother than representations and warranties that by their terms address matters only as of another specified time, which shall be true only as of such time), with, in the case of those representations and warranties that are made as of a particular date or period, as of such date or period) and this clause (iii) the other representations and warranties of the Company contained in this Agreement shall be true and correct (disregarding all qualifications or limitations as to “materially”, “Material Adverse Effect” and words of similar import set forth therein, other than in Section 4.08(a)) at and as of the Effective Time as if made at and as of such time (or, in the case of those representations and warranties that are made as of a particular date or period, as of such date or periodC), except where the failure of only such representations exceptions as have not had and warranties to be so true and correct would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company; ; and (ciii) Parent shall have received a certificate signed by the chief an executive officer or chief financial officer of the Company to certifying that the effect of clauses (aconditions set forth in Sections 9.02(a)(i) and (b9.02(a)(ii) abovehave been satisfied; and (db) since the date of this Agreement, there shall not have occurred and be continuing any event, occurrence, or development of a state of circumstances or facts which, individually or in the aggregate, has had a Material Adverse Effect on the CompanyCompany that is continuing or would reasonably be expected to have a Material Adverse Effect.