SEEKING TO PROHIBIT, ALTER, PREVENT
OR MATERIALLY DELAY THE CLOSING, SHALL HAVE BEEN INSTITUTED OR BE PENDING BEFORE
ANY COURT, ARBITRATOR, GOVERNMENTAL BODY, AGENCY OR OFFICIAL.
(F)
NO GOVERNMENTAL PROHIBITION.
THE SALE OF THE SHARES BY THE
COMPANY SHALL NOT BE PROHIBITED BY ANY LAW OR GOVERNMENTAL ORDER OR REGULATION.
(G)
NO STOP ORDER.
NO STOP ORDER OR SUSPENSION OF TRADING SHALL HAVE
BEEN IMPOSED BY NASDAQ, THE SEC OR ANY OTHER GOVERNMENTAL OR REGULATORY BODY
WITH RESPECT TO PUBLIC TRADING IN THE COMMON STOCK.
SECTION 5.2
CONDITIONS TO PURCHASERS' OBLIGATIONS AT THE CLOSING.
EACH PURCHASER'S OBLIGATION TO COMPLETE THE PURCHASE AND SALE OF THE SHARES IS
SUBJECT TO THE FULFILLMENT OR WAIVER AS OF THE CLOSING DATE OF THE FOLLOWING
CONDITIONS:
11
(A)
REPRESENTATIONS AND WARRANTIES.
THE REPRESENTATIONS AND
WARRANTIES MADE BY THE COMPANY IN ARTICLE 2 THAT ARE QUALIFIED BY MATERIALITY
(INCLUDING IN THE DEFINITION OF MATERIAL ADVERSE EFFECT) SHALL BE TRUE AND
CORRECT IN ALL RESPECTS AS OF THE CLOSING DATE AS IF THEY HAD BEEN MADE ON AND
AS OF SUCH DATE AND THE REPRESENTATIONS AND WARRANTIES MADE BY THE COMPANY IN
ARTICLE 2 THAT ARE NOT SO QUALIFIED SHALL BE TRUE AND CORRECT IN ALL MATERIAL
RESPECTS AS IF THEY HAD BEEN MADE ON AND AS OF SUCH DATE, EXCEPT THAT THE
ACCURACY OF REPRESENTATIONS AND WARRANTIES THAT BY THEIR TERMS SPEAK AS OF A
SPECIFIED DATE WILL BE DETERMINED AS OF SUCH DATE.
(B)
COVENANTS.
ALL COVENANTS, AGREEMENTS AND CONDITIONS CONTAINED IN
THIS AGREEMENT TO BE PERFORMED BY THE COMPANY ON OR PRIOR TO THE CLOSING DATE
SHALL HAVE BEEN PERFORMED OR COMPLIED WITH IN ALL MATERIAL RESPECTS.
(C)
BLUE SKY.
THE COMPANY SHALL HAVE OBTAINED ALL NECESSARY BLUE SKY
LAW PERMITS AND QUALIFICATIONS, OR SECURED EXEMPTIONS THEREFROM, REQUIRED BY ANY
STATE OR FOREIGN OR OTHER JURISDICTION FOR THE OFFER AND SALE OF THE SHARES.
(D)
LEGAL OPINION.
THE COMPANY SHALL HAVE DELIVERED TO SUCH PURCHASER
AN OPINION, DATED AS OF THE CLOSING DATE, FROM COVINGTON & BURLING LLP, COUNSEL
TO THE COMPANY, IN SUBSTANTIALLY THE FORM ATTACHED HERETO AS EXHIBIT C HERETO.
(E)
CERTIFICATES OF THE COMPANY.
THE COMPANY SHALL HAVE DELIVERED TO
SUCH PURCHASER (I) A CERTIFICATE OF A SENIOR EXECUTIVE OFFICER OF THE COMPANY,
DATED THE CLOSING DATE, CONFIRMING THE SATISFACTION OF THE CONDITIONS SET FORTH
IN CLAUSES (A) AND (B) OF THIS SECTION 5.2, (II) A CERTIFICATE OF THE SECRETARY
OR ASSISTANT SECRETARY OF THE COMPANY, DATED THE CLOSING DATE, CERTIFYING AS TO
THE INCUMBENCY AND SIGNATURES OF THE OFFICERS EXECUTING THIS AGREEMENT AND THE
OTHER DOCUMENTS DELIVERED BY THE COMPANY UNDER THIS AGREEMENT AND (III) A GOOD
STANDING CERTIFICATE OF THE COMPANY, DATED AS OF A RECENT DATE, FROM THE
SECRETARY OF STATE OF THE STATE OF DELAWARE.
(F)
TRANSFER AGENT INSTRUCTIONS.
THE COMPANY SHALL HAVE DELIVERED TO
ITS TRANSFER AGENT IRREVOCABLE INSTRUCTIONS TO ISSUE TO SUCH PURCHASER OR IN
SUCH NOMINEE NAME(S) AS DESIGNATED BY SUCH PURCHASER IN WRITING SUCH NUMBER OF
SHARES SET FORTH OPPOSITE SUCH