A SPECIFIC DATE (WHICH SHALL BE TRUE AND CORRECT IN
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ALL MATERIAL RESPECTS AS OF SUCH DATE)), AND THE COMPANY SHALL HAVE PERFORMED,
SATISFIED AND COMPLIED WITH IN ALL MATERIAL RESPECTS THE COVENANTS, AGREEMENTS
AND CONDITIONS REQUIRED BY THIS AGREEMENT TO BE PERFORMED, SATISFIED OR COMPLIED
WITH BY THE COMPANY ON OR PRIOR TO THE CLOSING DATE;
(C)
OFFICER'S CERTIFICATE.
THE COMPANY SHALL HAVE DELIVERED A CERTIFICATE,
DATED THE CLOSING DATE, DULY EXECUTED ON BEHALF OF THE COMPANY BY ITS CHIEF
EXECUTIVE OFFICER TO THE EFFECT SET FORTH IN CLAUSE (B) ABOVE;
(D)
SECRETARY'S CERTIFICATE.
THE COMPANY SHALL HAVE DELIVERED A CERTIFICATE,
DATED THE CLOSING DATE, DULY EXECUTED BY ITS SECRETARY OR ASSISTANT SECRETARY OR
OTHER APPROPRIATE OFFICER, CERTIFYING THAT THE ATTACHED COPIES OF THE COMPANY'S
CERTIFICATE OF INCORPORATION, CERTIFICATE OF DESIGNATIONS (AS DEFINED BELOW),
BY-LAWS AND THE RESOLUTIONS OF THE BOARD OF DIRECTORS OR EXECUTIVE COMMITTEE OF
THE BOARD OF DIRECTORS APPROVING THIS AGREEMENT AND THE TRANSACTIONS
CONTEMPLATED HEREBY, ARE ALL TRUE, COMPLETE AND CORRECT AND REMAIN UNAMENDED AND
IN FULL FORCE AND EFFECT;
(E)
NO LITIGATION.
ON THE CLOSING DATE, NO LEGAL ACTION, SUIT OR PROCEEDING
SHALL BE PENDING OR OVERTLY THREATENED WHICH SEEKS TO RESTRAIN OR PROHIBIT THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
2.
REPRESENTATIONS AND WARRANTIES OF THE
COMPANY.
Except as set forth on the Schedule of Exceptions attached
hereto as Schedule A or as set forth in the SEC Documents (as defined below),
the Company hereby represents and warrants to the Investor as follows:
2.1.
SUBSIDIARIES.
THE COMPANY HAS NO DIRECT OR INDIRECT SUBSIDIARIES
(AS DEFINED BY RULE 405 UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT") OTHER THAN AS SPECIFIED IN THE SEC DOCUMENTS (THE
"SUBSIDIARIES").
2.2.
ORGANIZATION AND QUALIFICATION.
THE COMPANY AND EACH OF ITS
SUBSIDIARIES IS DULY ORGANIZED AND VALIDLY EXISTING AND IS IN GOOD STANDING
UNDER THE LAWS OF THE JURISDICTION OF ITS INCORPORATION OR ORGANIZATION (AS
APPLICABLE), EXCEPT WHERE THE FAILURE TO BE IN GOOD STANDING WOULD NOT HAVE A
MATERIAL ADVERSE EFFECT UPON THE BUSINESS, ASSETS, FINANCIAL CONDITION OR
RESULTS OF OPERATION OF THE COMPANY AND ITS SUBSIDIARIES TAKEN AS A WHOLE (A
"MATERIAL ADVERSE EFFECT").
THE COMPANY AND EACH OF ITS SUBSIDIARIES HAS FULL
CORPORATE POWER AND AUTHORITY TO OWN, OPERATE AND OCCUPY ITS PROPERTIES AND TO
CONDUCT ITS BUSINESS AS PRESENTLY CONDUCTED AND IS REGISTERED OR QUALIFIED TO DO
BUSINESS AND IN GOOD STANDING IN EACH JURISDICTION IN WHICH IT OWNS OR LEASES
PROPERTY OR TRANSACTS BUSINESS AND WHERE THE FAILURE TO BE SO QUALIFIED WOULD
HAVE A MATERIAL ADVERSE EFFECT, AND TO THE COMPANY'S KNOWLEDGE, NO PROCEEDING
HAS BEEN INSTITUTED IN ANY SUCH JURISDICTION REVOKING, LIMITING OR CURTAILING,
OR SEEKING TO REVOKE, LIMIT OR CURTAIL, SUCH POWER AND AUTHORITY OR
QUALIFICATION.
2.3.
DUE AUTHORIZATION. THE COMPANY HAS ALL REQUISITE CORPORATE POWER
AND AUTHORITY TO EXECUTE, DELIVER AND PERFORM ITS OBLIGATIONS UNDER THIS
AGREEMENT.
THIS AGREEMENT HAS BEEN DULY AUTHORIZED AND VALIDLY EXECUTED AND
DELIVERED BY THE COMPANY AND, ASSUMING DUE
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