BE ISSUED AT THE CLOSING SHALL HAVE BEEN
AUTHORIZED FOR LISTING ON THE NEW YORK STOCK EXCHANGE OR SUCH OTHER MARKET ON
WHICH THE COMMON STOCK IS THEN LISTED OR QUOTED, SUBJECT TO OFFICIAL NOTICE OF
ISSUANCE; AND
(C)
THE COMPANY SHALL HAVE ISSUED AND SOLD SHARES OF CAPITAL STOCK ON OR AFTER
THE DATE HEREOF AND ON OR PRIOR TO THE CLOSING DATE AND RECEIVED AGGREGATE
PROCEEDS IN RESPECT THEREOF (INCLUDING THE PROCEEDS TO BE RECEIVED FROM SUCH
PURCHASER) OF NOT LESS THAN $4.9 BILLION IN THE AGGREGATE; PROVIDED, THAT FOR
PURPOSES OF THIS CLAUSE (C), TO THE EXTENT THERE EXIST AT CLOSING CONTRACTUAL
OBLIGATIONS OF PURCHASERS TO DELIVER FUNDS IN RESPECT OF ANY SUCH SALES WITHIN
NOT MORE THAN 14 DAYS FOLLOWING CLOSING, THE FUNDS SUBJECT TO SUCH CONTRACTUAL
OBLIGATIONS SHALL BE CONSIDERED TO BE PROCEEDS RECEIVED FOR PURPOSES OF THIS
PROVISION.
(2)
THE OBLIGATION OF EACH PURCHASER TO CONSUMMATE THE PURCHASE OF SHARES AND
WARRANTS TO BE PURCHASED BY IT AT THE CLOSING IS ALSO SUBJECT TO THE FULFILLMENT
OR WRITTEN WAIVER BY SUCH PURCHASER PRIOR TO THE CLOSING OF EACH OF THE
FOLLOWING CONDITIONS:
(A)
THE COMPANY SHALL HAVE PERFORMED IN ALL MATERIAL RESPECTS ALL OBLIGATIONS
REQUIRED TO BE PERFORMED BY IT AT OR PRIOR TO CLOSING; AND
(B)
SUCH PURCHASER SHALL HAVE RECEIVED A CERTIFICATE SIGNED ON BEHALF OF THE
COMPANY BY A SENIOR EXECUTIVE OFFICER CERTIFYING TO THE EFFECT THAT THE
CONDITIONS SET FORTH IN SECTION 1.2(C)(2)(A) HAS BEEN SATISFIED.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1
Disclosure. (a)
On or prior to the date hereof, the Company delivered to
each Purchaser and each Purchaser delivered to the Company a schedule
("Disclosure Schedule") setting forth, among other things, items the disclosure
of which is necessary or appropriate either in response to an express disclosure
requirement contained in a provision hereof or as an
2
EXCEPTION TO ONE OR MORE REPRESENTATIONS OR WARRANTIES CONTAINED IN SECTION 2.2
WITH RESPECT TO THE COMPANY, OR IN SECTION 2.3 WITH RESPECT TO SUCH PURCHASER,
OR TO ONE OR MORE OF ITS COVENANTS CONTAINED IN ARTICLE III.
(B)
AS USED IN THIS AGREEMENT, ANY REFERENCE TO ANY FACT, CHANGE, CIRCUMSTANCE
OR EFFECT BEING "MATERIAL" WITH RESPECT TO THE COMPANY MEANS SUCH FACT, CHANGE,
CIRCUMSTANCE OR EFFECT IS MATERIAL IN RELATION TO THE BUSINESS, RESULTS OF
OPERATIONS OR FINANCIAL CONDITION OF THE COMPANY AND THE COMPANY SUBSIDIARIES
TAKEN AS A WHOLE. AS USED IN THIS AGREEMENT, THE TERM "MATERIAL ADVERSE EFFECT"
MEANS ANY CIRCUMSTANCE, EVENT, CHANGE, DEVELOPMENT OR EFFECT THAT, INDIVIDUALLY
OR IN THE AGGREGATE, (1) IS MATERIAL AND ADVERSE TO THE BUSINESS, RESULTS OF
OPERATIONS OR FINANCIAL CONDITION OF THE COMPANY AND COMPANY SUBSIDIARIES TAKEN
AS A WHOLE OR (2) WOULD MATERIALLY IMPAIR THE ABILITY OF THE COMPANY TO PERFORM
ITS OBLIGATIONS UNDER THIS AGREEMENT OR TO CONSUMMATE THE CLOSING; PROVIDED,
HOWEVER, THAT IN DETERMINING WHETHER A MATERIAL ADVERSE EFFECT HAS OCCURRED,
THERE SHALL BE EXCLUDED THE FOLLOWING: (A) CHANGES IN GENERALLY ACCEPTED
ACCOUNTING PRINCIPLES OR REGULATORY ACCOUNTING PRINCIPLES