NOTES TO, BUT EXCLUDING, THE CLOSING DATE.
SECTION 1.3
CONDITIONS TO CLOSING. (I) THE OBLIGATION OF THE HOLDER
HEREUNDER TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED HEREBY AT THE CLOSING IS
SUBJECT TO THE SATISFACTION, AT OR BEFORE THE CLOSING, OF EACH OF THE FOLLOWING
CONDITIONS, PROVIDED THAT THESE CONDITIONS ARE FOR THE HOLDER'S SOLE BENEFIT AND
MAY BE WAIVED BY THE HOLDER AT ANY TIME IN ITS SOLE DISCRETION BY PROVIDING THE
COMPANY WITH PRIOR WRITTEN NOTICE THEREOF:
(A)
THE COMPANY SHALL HAVE EXECUTED AND DELIVERED THIS AGREEMENT TO
HOLDER;
(B)
THE COMPANY AND THE TRUSTEE SHALL HAVE EXECUTED AND DELIVERED THE
INDENTURE;
(C)
THE COMPANY SHALL HAVE EXECUTED AND DELIVERED THE NEW NOTES IN THE
AGGREGATE PRINCIPAL AMOUNT SET FORTH IN SECTION 1.1;
(D)
THE COMPANY SHALL HAVE SUBMITTED TO THE NASDAQ STOCK MARKET LLC
THE REQUISITE NOTIFICATION FORM WITH RESPECT TO THE LISTING ON THE NASDAQ GLOBAL
MARKET (THE "PRINCIPAL MARKET") OF THE SHARES OF THE COMPANY'S COMMON STOCK, PAR
VALUE $0.01 PER SHARE (THE "COMMON STOCK"), ISSUABLE UPON CONVERSION OF THE NEW
NOTES;
(E)
THE NEW NOTES SHALL HAVE BEEN APPROVED FOR TRADING ON THE PORTAL
MARKET, SUBJECT ONLY TO NOTICE OF ISSUANCE AT OR PRIOR TO THE TIME OF ISSUANCE;
(F)
THE COMPANY SHALL HAVE OBTAINED A COMMITTEE ON UNIFORM SECURITIES
IDENTIFICATION PROCEDURES NUMBER (CUSIP NUMBER) FOR THE NEW NOTES;
(G)
THE COMMON STOCK (I) SHALL BE DESIGNATED FOR QUOTATION OR LISTED
ON THE PRINCIPAL MARKET AND (II) SHALL NOT HAVE BEEN SUSPENDED, AS OF THE
CLOSING DATE, BY THE SECURITIES AND EXCHANGE COMMISSION (THE "SEC") OR THE
PRINCIPAL MARKET FROM TRADING ON THE PRINCIPAL MARKET NOR SHALL SUSPENSION BY
THE SEC OR THE PRINCIPAL MARKET HAVE BEEN THREATENED (AND REMAIN UNRESOLVED), AS
OF THE CLOSING DATE, EITHER (A) IN WRITING BY THE SEC OR THE PRINCIPAL MARKET OR
(B) BY FALLING BELOW THE MINIMUM LISTING MAINTENANCE REQUIREMENTS OF THE
PRINCIPAL MARKET; AND
(H)
THE COMPANY SHALL HAVE FURNISHED TO THE HOLDER A CERTIFICATE,
DATED AS OF THE CLOSING DATE, OF A DULY AUTHORIZED OFFICER OF THE COMPANY, IN
FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE HOLDER, TO THE EFFECT THAT
(X) THE REPRESENTATIONS AND WARRANTIES OF THE COMPANY CONTAINED IN ARTICLE III
HEREOF WERE TRUE AND CORRECT ON THE DATE HEREOF AND ARE TRUE AND CORRECT ON THE
CLOSING DATE (AS THOUGH MADE ON SUCH DATE) AND (Y) THE COMPANY HAS COMPLIED IN
ALL MATERIAL RESPECTS WITH ALL OF ITS AGREEMENTS AND COVENANTS CONTAINED HEREIN
THAT ARE REQUIRED TO BE PERFORMED PRIOR TO THE CLOSING.
2
(ii)
The obligation of the Company hereunder to consummate the
transactions contemplated hereby at the Closing is subject to the satisfaction,
at or before the Closing, of each of the following conditions, provided that
these conditions are for the Company's sole benefit and may be waived by the
Company at any time in its sole discretion by providing the Holder with prior
written notice thereof:
(a)
The Holder shall have executed and delivered to the Company this
Agreement;
(b)