SHARES BEING PURCHASED BY THE PURCHASER AT THE
INITIAL CLOSING.
28
(VIII)
THE PURCHASER SHALL HAVE RECEIVED A CERTIFICATE, EXECUTED BY THE
SECRETARY OF THE COMPANY, CERTIFYING THE FOLLOWING:
(A)
A COPY OF THE RESOLUTIONS OF THE BOARD OF DIRECTORS OF THE COMPANY
APPROVING THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT (THE "RESOLUTIONS"),
(B)
THE COMPANY'S CERTIFICATE OF INCORPORATION, TOGETHER WITH ALL
AMENDMENTS THEREOF AND RESTATEMENTS THERETO, AND
(C)
A COPY OF ITS BYLAWS, AS THEN IN FULL EFFECT AND FORCE.
(IX)
AS OF THE INITIAL CLOSING DATE, THE COMPANY SHALL HAVE RESERVED
OUT OF ITS AUTHORIZED AND UNISSUED COMMON STOCK, SOLELY FOR THE PURPOSE OF
EFFECTING THE CONVERSION OF THE PREFERRED SHARES, AT LEAST 21,052,623 SHARES OF
COMMON STOCK (SUBJECT TO ADJUSTMENT FOR SPLITS, REVERSE SPLITS, STOCK DIVIDENDS,
COMBINATIONS AND THE LIKE).
(X)
THE COMPANY SHALL HAVE DELIVERED TO THE PURCHASER A COPY OF THE
IRREVOCABLE TRANSFER AGENT INSTRUCTIONS, EXECUTED BY EACH OF THE COMPANY AND ITS
TRANSFER AGENT.
THE COMPANY SHALL HAVE DELIVERED TO THE PURCHASER A LETTER FROM
THE COMPANY'S TRANSFER AGENT CERTIFYING THE NUMBER OF SHARES OF COMMON STOCK
OUTSTANDING AS OF A DATE WITHIN FIVE (5) DAYS OF THE INITIAL CLOSING DATE.
(XI)
THE COMPANY SHALL HAVE DELIVERED TO THE PURCHASER A CERTIFICATE
EVIDENCING THE INCORPORATION AND GOOD STANDING OF THE COMPANY IN DELAWARE ISSUED
BY THE SECRETARY OF STATE OF THE STATE OF DELAWARE AS OF A DATE WITHIN TEN
(10) DAYS OF THE INITIAL CLOSING DATE.
(XII)
THE COMPANY SHALL HAVE DELIVERED TO THE PURCHASER EVIDENCE
REASONABLY ACCEPTABLE TO THE PURCHASER THAT THE COMPANY HAS TAKEN APPROPRIATE
CORPORATE ACTION TO RENDER INAPPLICABLE ANY TAKEOVER PROVISION WHICH IS OR COULD
BECOME APPLICABLE TO THE PURCHASER AS A RESULT OF THE TRANSACTIONS CONTEMPLATED
BY THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE COMPANY'S ISSUANCE OF
SECURITIES, THE PURCHASER'S OWNERSHIP OF THE SECURITIES AND/OR THE ISSUANCE OF
THE CONVERSION SHARES.
(XIII)
SAFEGUARD SHALL HAVE ENTERED INTO THE SAFEGUARD AGREEMENT.
(XIV)
WITH RESPECT TO INDEBTEDNESS OF THE COMPANY UNDER THE COMERICA LOAN
(INCLUDING, FOR THE AVOIDANCE OF DOUBT, ANY GUARANTEES OR INDEMNIFICATION
OBLIGATIONS OF THE COMPANY RELATED TO THE COMERICA LOAN), THE PURCHASER SHALL
HAVE RECEIVED SUCH PAY-OFF LETTERS, TERMINATION AGREEMENTS, TERMINATION
STATEMENTS, RELEASES OF FUNDED MORTGAGES AND OTHER RELEASES TO BE DELIVERED
AGAINST REPAYMENT BY THE COMPANY AT OR PRIOR TO THE INITIAL CLOSING AS THE
PURCHASER SHALL HAVE REASONABLY REQUESTED, ALL IN FORM AND SUBSTANCE
SATISFACTORY TO THE LENDER(S) TO THE COMPANY (IN THEIR SOLE DISCRETION) AND
REASONABLY SATISFACTORY TO THE PURCHASER.
THE PURCHASER SHALL HAVE RECEIVED
DULY EXECUTED RELEASES (INCLUDING UCC-3 TERMINATION STATEMENTS) OF ALL LIENS
(OTHER THAN PERMITTED LIENS) ON THE ASSETS OF THE COMPANY RELATING TO THE
COMERICA LOAN IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE PURCHASER AND
ITS COUNSEL.
29
(XV)
THERE SHALL NOT HAVE OCCURRED ANY EVENTS OR CHANGES (A) SINCE
DECEMBER 31, 2008 THAT, INDIVIDUALLY OR IN THE AGGREGATE, HAVE HAD OR COULD
REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT, BEFORE AND AFTER
GIVING EFFECT TO THE