COMPANY THE PURCHASE
PRICE (LESS THE AMOUNTS WITHHELD PURSUANT TO SECTION 4(G)) FOR THE COMMON SHARES
AT THE CLOSING BY WIRE TRANSFER OF IMMEDIATELY AVAILABLE FUNDS PURSUANT TO THE
WIRE INSTRUCTIONS PROVIDED TO THE BUYER PURSUANT TO SECTION 1(A)(IV).
(C)
THE BUYER SHALL HAVE DELIVERED TO THE COMPANY A CERTIFICATE
EVIDENCING THE FORMATION AND GOOD STANDING OF THE BUYER IN SUCH ENTITY'S
JURISDICTION OF FORMATION ISSUED BY THE SECRETARY OF STATE (OR COMPARABLE
OFFICE) OF SUCH JURISDICTION, AS OF A DATE WITHIN FIFTEEN (15) DAYS OF THE
CLOSING DATE.
27
(D)
THE BUYER SHALL HAVE DELIVERED TO THE COMPANY A CERTIFICATE,
IN A FORM REASONABLY ACCEPTABLE TO THE COMPANY, EXECUTED BY AN OFFICER OR THE
MANAGING MEMBER OF THE BUYER AND DATED AS OF THE CLOSING DATE, AS TO (I) THE
RESOLUTIONS CONSISTENT WITH SECTION 2(H) AS ADOPTED BY THE MANAGING MEMBER OF
THE BUYER, AND (II) THE CERTIFICATE OF FORMATION OF THE BUYER, EACH AS IN EFFECT
AT THE CLOSING.
(E)
THE BUYER SHALL HAVE OBTAINED ALL GOVERNMENTAL, REGULATORY OR
THIRD PARTY CONSENTS AND APPROVALS, IF ANY, NECESSARY FOR ITS PURCHASE OF THE
COMMON SHARES.
(F)
THE COMPANY SHALL HAVE RECEIVED A CERTIFICATION FROM EACH
DIRECTOR DESIGNEE, IN THE FORM SET FORTH IN EXHIBIT C AND DATED AS OF THE
CLOSING DATE, TO THE EFFECT THAT THE DIRECTOR DESIGNEE IS NOT AND HAS NOT BEEN
SUBJECT TO ANY PROCEEDING OR EVENT THAT CONSTITUTES A "BAD ACTOR"
DISQUALIFICATION AS SET FORTH IN RULE 506(D)(1) PROMULGATED UNDER REGULATION D
OF THE SECURITIES ACT.
(G)
THE REPRESENTATIONS AND WARRANTIES OF THE BUYER SHALL BE TRUE
AND CORRECT AS OF THE DATE WHEN MADE AND AS OF THE CLOSING DATE AS THOUGH MADE
AT THAT TIME (EXCEPT FOR REPRESENTATIONS AND WARRANTIES THAT SPEAK AS OF A
SPECIFIC DATE WHICH SHALL BE TRUE AND CORRECT AS OF SUCH SPECIFIED DATE), AND
THE BUYER SHALL HAVE PERFORMED, SATISFIED AND COMPLIED IN ALL MATERIAL RESPECTS
WITH THE COVENANTS, AGREEMENTS AND CONDITIONS REQUIRED BY THIS AGREEMENT TO BE
PERFORMED, SATISFIED OR COMPLIED WITH BY THE BUYER AT OR PRIOR TO THE CLOSING
DATE.
7.
CONDITIONS TO THE BUYER'S OBLIGATION TO CONSUMMATE THE
CLOSING.
The obligation of the Buyer hereunder to effect the transactions to be
consummated at the Closing is subject to the satisfaction, at or before the
Closing Date, of each of the following conditions, provided that these
conditions are for the Buyer's sole benefit and may be waived (to the extent
legally permissible) by the Buyer at any time in its sole discretion by
providing the Company with prior written notice thereof:
(A)
THE COMPANY SHALL HAVE DULY EXECUTED THE STOCK CERTIFICATE
REPRESENTING THE COMMON SHARES AND EACH OF THE TRANSACTION DOCUMENTS TO WHICH IT
IS A PARTY AND DELIVERED THE SAME TO THE BUYER.
(B)
THE BUYER SHALL HAVE RECEIVED THE OPINIONS OF COUCH WHITE, LLP
AND OBER, KALER, GRIMES & SHRIVER, P.C., THE COMPANY'S OUTSIDE COUNSEL, DATED AS
OF THE CLOSING DATE, ADDRESSED TO THE BUYER, IN FORM AND SUBSTANCE REASONABLY
ACCEPTABLE