HAVE CERTIFIED TO SUCH EFFECT TO THE
INVESTOR IN WRITING.
SECTION 8.2
PERFORMANCE.
THE COMPANY SHALL HAVE PERFORMED AND COMPLIED IN ALL
MATERIAL RESPECTS WITH ALL AGREEMENTS CONTAINED HEREIN, AND IN THE AGREEMENTS,
DOCUMENTS AND INSTRUMENTS CONTEMPLATED HEREBY WHICH ARE REQUIRED TO BE PERFORMED
OR COMPLIED WITH BY IT PRIOR TO OR AT THE DATE OF THE CLOSING, AND THE CHIEF
EXECUTIVE OFFICER AND CHIEF FINANCIAL OFFICER OF THE COMPANY SHALL HAVE
CERTIFIED TO THE INVESTOR IN WRITING TO SUCH EFFECT AND TO THE FURTHER EFFECT
THAT ALL OF THE CONDITIONS SET FORTH IN THIS ARTICLE 8 HAVE BEEN SATISFIED.
SECTION 8.3
ALL PROCEEDINGS TO BE SATISFACTORY.
ALL CORPORATE AND OTHER
PROCEEDINGS TO BE TAKEN BY THE COMPANY IN CONNECTION WITH THE TRANSACTIONS
CONTEMPLATED HEREBY AND ALL DOCUMENTS INCIDENT THERETO SHALL BE REASONABLY
SATISFACTORY IN FORM AND SUBSTANCE TO THE INVESTOR AND THEIR COUNSEL, AND THE
INVESTOR AND THEIR COUNSEL SHALL HAVE RECEIVED ALL SUCH COUNTERPART ORIGINALS OR
CERTIFIED OR OTHER COPIES OF SUCH DOCUMENTS AS THEY REASONABLY MAY REQUEST.
SECTION 8.4
SUPPORTING DOCUMENTS.
(A)
THE INVESTOR AND THEIR COUNSEL SHALL HAVE RECEIVED COPIES OF THE
FOLLOWING DOCUMENTS:
(I)
A CERTIFICATE OF THE SECRETARY OF STATE
OF THE STATE OF INCORPORATION OF THE COMPANY DATED AS OF A DATE WITHIN THREE
DAYS PRIOR TO THE CLOSING DATE AS TO THE CORPORATE EXISTENCE OF THE COMPANY AND
LISTING ALL DOCUMENTS OF THE COMPANY ON FILE WITH SUCH SECRETARY OF STATE;
29
(II)
A CERTIFICATE OF THE SECRETARY OF THE
COMPANY DATED THE CLOSING DATE AND CERTIFYING:
(A) THE COMPANY'S AND EACH
AFFILIATE'S THEN-CURRENT CERTIFICATE OF INCORPORATION AND BYLAWS; (B) THAT
ATTACHED THERETO IS A TRUE AND COMPLETE COPY OF ANY APPLICABLE RESOLUTIONS
ADOPTED BY THE BOARD OF DIRECTORS OF THE COMPANY AUTHORIZING THE EXECUTION,
DELIVERY AND PERFORMANCE OF THIS AGREEMENT AND THE TRANSACTION DOCUMENTS, AND
THE ISSUANCE, SALE AND DELIVERY OF THE PURCHASED SECURITIES AND THE CONVERSION
SHARES, AND THAT ALL SUCH RESOLUTIONS ARE IN FULL FORCE AND EFFECT AND ARE ALL
THE RESOLUTIONS ADOPTED IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT AND THE TRANSACTION DOCUMENTS; AND (C) TO THE INCUMBENCY AND SPECIMEN
SIGNATURE OF EACH OFFICER OF THE COMPANY AND ITS AFFILIATES EXECUTING THIS
AGREEMENT, THE TRANSACTION DOCUMENTS, AND ANY CERTIFICATE OR INSTRUMENT
FURNISHED PURSUANT HERETO, AND A CERTIFICATION BY ANOTHER OFFICER OF THE COMPANY
AS TO THE INCUMBENCY AND SIGNATURE OF THE OFFICER SIGNING THE CERTIFICATE
REFERRED TO IN THIS SUBSECTION (II); AND
(III)
SUCH ADDITIONAL SUPPORTING DOCUMENTS AND
OTHER INFORMATION WITH RESPECT TO THE OPERATIONS AND AFFAIRS OF THE COMPANY AS
ANY INVESTOR OR THE INVESTOR'S COUNSEL REASONABLY MAY REQUEST.
SECTION 8.5
REQUIRED CONSENTS.
THE COMPANY SHALL HAVE OBTAINED THE WRITTEN
CONSENT OR APPROVAL, IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE
INVESTOR, OF EACH PERSON WHOSE CONSENT OR APPROVAL IS REQUIRED IN CONNECTION
WITH THIS AGREEMENT.
SECTION 8.6
LITIGATION.
NO SUIT, ACTION OR OTHER PROCEEDING SHALL BE PENDING
OR, TO THE KNOWLEDGE OF THE COMPANY, THREATENED BY ANY THIRD PARTY OR BY OR
BEFORE