definiens: within the meaning ofSection 368(a ) of the Internal Revenue Code of 1986, as amended, and the rules and the regulations promulgatedthereunder ( the ) to which each of Beta and Omega are to be parties under Section 368(b ) of the Code, and ( ii)this Agreement is intended to constitute a within the meaning of Sections 354, 361 and 368 ofthe Code ; WHEREAS, concurrently with the execution and delivery of this Agreement, Beta has entered into ( i ) aPreferred Stock Repurchase Agreement in the form of Exhibit E attached hereto ( the ) and ( ii ) an Amended and Restated Warrant Agreement, in the form of Exhibit F attached hereto ( the ), in each case, the effectiveness of certain provisions of which is conditioned upon theoccurrence of the Closing in accordance with the terms of this Agreement ; and WHEREAS, Beta, Merger Sub Inc., Merger Sub LLC, Omega Parent and Omega desire to make certainrepresentations, warranties, covenants and agreements in connection with the Mergers and also to prescribe certainconditions to the Mergers as specified herein