DATE SHALL HAVE OCCURRED, AND (B) THERE SHALL HAVE BEEN DELIVERED TO
THE DEPOSITORY A GLOBAL WARRANT TO PURCHASE THE NUMBER OF SHARES OF COMMON STOCK
AS PROVIDED HEREIN.
3.2.
OPINION OF COUNSEL.
THE NOTEHOLDERS SHALL
HAVE RECEIVED FROM BINGHAM MCCUTCHEN LLP, COUNSEL TO THE COMPANY, A LEGAL
OPINION IN A FORM SATISFACTORY TO THE MAJORITY NOTEHOLDERS.
3.3.
CORPORATE PROCEEDINGS.
(A)
EACH NOTEHOLDER SHALL HAVE RECEIVED A
CERTIFICATE FROM THE COMPANY, DATED THE CLOSING DATE, SIGNED BY THE CHAIRMAN, A
VICE CHAIRMAN, THE PRESIDENT, ANY VICE PRESIDENT OR REPRESENTATIVE DIRECTOR OF
THE COMPANY, IN THE FORM ATTACHED HERETO AS EXHIBIT 3.3, WITH APPROPRIATE
INSERTIONS AND DELETIONS, TOGETHER WITH (I) COPIES OF THE CERTIFICATE OF
INCORPORATION, BY-LAWS OR OTHER ORGANIZATIONAL DOCUMENTS OF THE COMPANY, (II)
THE RESOLUTIONS OF THE COMPANY REFERRED TO IN SUCH CERTIFICATE AND ALL OF THE
FOREGOING (INCLUDING THE CERTIFICATE OF INCORPORATION AND BY-LAWS) IN FORM AND
SUBSTANCE REASONABLY SATISFACTORY TO THE MAJORITY NOTEHOLDERS AND (III) A
CERTIFICATION THAT ALL OF THE APPLICABLE CONDITIONS PRECEDENT SET FORTH IN
SECTIONS 3.3, 3.5 AND 3.6 HEREOF SHALL HAVE BEEN SATISFIED AS OF SUCH DATE.
(B)
ON THE CLOSING DATE, ALL CORPORATE AND LEGAL
PROCEEDINGS AND ALL INSTRUMENTS AND AGREEMENTS IN CONNECTION WITH THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND EACH OTHER DOCUMENT SHALL BE
REASONABLY SATISFACTORY IN FORM AND SUBSTANCE TO THE NOTEHOLDERS, AND THE
NOTEHOLDERS SHALL HAVE RECEIVED ALL INFORMATION AND COPIES OF ALL CERTIFICATES,
DOCUMENTS AND PAPERS, INCLUDING GOOD STANDING CERTIFICATES AND ANY OTHER RECORDS
OF CORPORATE PROCEEDINGS AND GOVERNMENTAL APPROVALS, IF ANY, WHICH A NOTEHOLDER
MAY HAVE REASONABLY REQUESTED IN CONNECTION THEREWITH, SUCH DOCUMENTS AND
PAPERS, WHERE APPROPRIATE, TO BE CERTIFIED BY PROPER CORPORATE OR GOVERNMENTAL
AUTHORITIES.
6
3.4.
LITIGATION. THERE SHALL BE NO ACTION, SUIT,
PROCEEDING OR INVESTIGATION (WHETHER CONDUCTED BY ANY JUDICIAL OR REGULATORY
BODY OR OTHER PERSON) THAT IS PENDING OR, TO THE KNOWLEDGE OF THE COMPANY OR ANY
NOTEHOLDER, IS THREATENED AGAINST THE COMPANY OR ANY NOTEHOLDER OR (NOR TO THE
KNOWLEDGE OF THE COMPANY OR ANY NOTEHOLDER SHALL THERE BE ANY BASIS THEREFOR)
WHICH (I) QUESTIONS THE VALIDITY OF THIS AGREEMENT OR ANY ACTION TAKEN OR TO BE
TAKEN PURSUANT HERETO OR (II) COULD RESULT IN A MATERIAL ADVERSE EFFECT.
3.5.
APPROVALS.
THE COMPANY SHALL HAVE RECEIVED
ALL AUTHORIZATIONS, CONSENTS, APPROVALS, LICENSES, FRANCHISES, PERMITS AND
CERTIFICATES BY OR OF ALL GOVERNMENTAL AND THIRD PARTIES, IN EACH CASE NECESSARY
FOR THE ISSUANCE OF THE WARRANTS AND FOR THE EXECUTION AND DELIVERY OF THE
DOCUMENTS TO WHICH IT IS A PARTY (INCLUDING WITHOUT LIMITATION ALL
AUTHORIZATIONS, CONSENTS AND APPROVALS REQUIRED OF ANY HOLDER OF NOTES OTHER
THAN A NOTEHOLDER), AND ALL OF THE FOREGOING SHALL BE IN FULL FORCE AND EFFECT
ON THE CLOSING DATE.
3.6.
WARRANT AGREEMENT. THE WARRANT AGREEMENT, WITH
SUCH CHANGES AS SHALL BE REQUIRED BY THE LAST SENTENCE OF SECTION 2.1. HEREOF,
SHALL HAVE BEEN DULY EXECUTED AND DELIVERED BY ALL OF THE PARTIES THERETO.
3.7.
DTC ELIGIBILITY.
THE WARRANTS SHALL HAVE
BECOME ELIGIBLE FOR DTC BOOK-ENTRY DELIVERY SERVICES.