AND EACH ANCILLARY AGREEMENT THAT ARE QUALIFIED BY MATERIALITY OR MATERIAL
ADVERSE EFFECT SHALL BE TRUE AND CORRECT AS OF THE DATE HEREOF AND AS OF THE
CLOSING AS THOUGH MADE ON AND AS OF THE CLOSING (EXCEPT THAT THOSE
REPRESENTATIONS AND WARRANTIES WHICH ADDRESS MATTERS ONLY AS OF A PARTICULAR
DATE NEED ONLY BE TRUE AND CORRECT AS OF SUCH DATE), AND ALL REPRESENTATIONS AND
WARRANTIES WHICH ARE NOT SO QUALIFIED SHALL BE TRUE AND CORRECT IN ALL MATERIAL
RESPECTS (EXCEPT THAT THOSE REPRESENTATIONS AND WARRANTIES WHICH ADDRESS MATTERS
ONLY AS OF A PARTICULAR DATE NEED ONLY REMAIN TRUE AND CORRECT IN ALL MATERIAL
RESPECTS AS OF SUCH DATE).
(B)
AGREEMENTS AND COVENANTS.
THE INVESTORS
SHALL HAVE PERFORMED, IN ALL MATERIAL RESPECTS, ALL OBLIGATIONS OR COMPLIED
WITH, IN ALL MATERIAL RESPECTS, ALL AGREEMENTS AND COVENANTS TO BE PERFORMED OR
COMPLIED WITH BY IT UNDER THIS AGREEMENT ON OR PRIOR TO THE CLOSING.
(C)
OFFICER CERTIFICATE.
EACH INVESTOR SHALL
HAVE DELIVERED TO THE COMPANY A CERTIFICATE, DATED THE DATE OF THE CLOSING,
SIGNED BY THE PRESIDENT OR ANY VICE PRESIDENT OF SUCH INVESTOR, CERTIFYING AS TO
THE SATISFACTION OF THE CONDITIONS SPECIFIED IN SECTIONS 7.03(A) AND 7.03(B).
(D)
ANCILLARY AGREEMENTS.
EACH OF THE ANCILLARY
AGREEMENTS TO WHICH ANY INVESTOR IS A PARTY SHALL HAVE BEEN DULY EXECUTED AND
DELIVERED BY SUCH INVESTOR.
41
(E)
OPINION OF COUNSEL.
A FAVORABLE OPINION OF
COUNSEL TO THE INVESTORS, DATED AS OF THE CLOSING DATE, COVERING THE MATTERS
ATTACHED HERETO AS EXHIBIT F SHALL HAVE BEEN DELIVERED TO THE COMPANY.
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
SECTION 8.01.
Termination.
This Agreement may be terminated and the
Transactions may be abandoned at any time prior to the Closing, whether or not
the Stockholder Approval has been obtained (the date of any such termination,
the "Termination Date"):
(A)
BY MUTUAL WRITTEN CONSENT OF THE INVESTORS
AND THE COMPANY (THE COMPANY'S CONSENT BEING DULY AUTHORIZED BY THE BOARD); OR
(B)
BY EITHER THE INVESTORS OR THE COMPANY IF
(I) THE CLOSING SHALL NOT HAVE OCCURRED ON OR BEFORE AUGUST 31, 2005; PROVIDED,
HOWEVER, THAT THE RIGHT TO TERMINATE THIS AGREEMENT UNDER THIS
SECTION 8.01(B) SHALL NOT BE AVAILABLE TO ANY PARTY WHOSE FAILURE TO FULFILL ANY
OBLIGATION UNDER THIS AGREEMENT HAS BEEN THE CAUSE OF, OR RESULTED IN, THE
FAILURE OF THE CLOSING TO OCCUR ON OR BEFORE SUCH DATE OR (II) ANY GOVERNMENTAL
AUTHORITY IN THE UNITED STATES SHALL HAVE ENACTED, ISSUED, PROMULGATED, ENFORCED
OR ENTERED ANY ORDER, DECREE, JUDGMENT, INJUNCTION OR RULING WHICH IS THEN IN
EFFECT AND IS FINAL AND NONAPPEALABLE AND HAS THE EFFECT OF MAKING CONSUMMATION
OF THE TRANSACTIONS ILLEGAL OR OTHERWISE PREVENTING OR PROHIBITING CONSUMMATION
OF THE TRANSACTIONS; PROVIDED, HOWEVER THAT THE PARTY SEEKING TO TERMINATE THIS
AGREEMENT SHALL HAVE FULFILLED ITS OBLIGATIONS PURSUANT TO SECTION 6.05 OF THIS
AGREEMENT TO LIFT SUCH INJUNCTION, ORDER, DECREE OR RULING; OR
(C)
BY THE INVESTORS OR THE COMPANY IF THE
STOCKHOLDER APPROVAL IS NOT OBTAINED AT THE STOCKHOLDERS' MEETING;
(D)
BY THE