(EXCEPT FOR REPRESENTATIONS AND WARRANTIES THAT SPEAK AS OF A SPECIFIC DATE,
WHICH SHALL BE TRUE AND CORRECT AS OF SUCH DATE) AND THE COMPANY SHALL HAVE
PERFORMED, SATISFIED AND COMPLIED WITH THE COVENANTS, AGREEMENTS AND CONDITIONS
REQUIRED BY THE TRANSACTION DOCUMENTS TO BE PERFORMED, SATISFIED OR COMPLIED
WITH BY THE COMPANY AT OR PRIOR TO THE CLOSING DATE.
THE PURCHASER SHALL HAVE
RECEIVED A CERTIFICATE, EXECUTED BY EITHER THE CHIEF EXECUTIVE OFFICER OR THE
CHIEF FINANCIAL OFFICER OF THE COMPANY, DATED AS OF THE CLOSING DATE, TO THE
FOREGOING EFFECT AND AS TO SUCH OTHER MATTERS AS MAY BE REASONABLY REQUESTED BY
THE PURCHASER.
6.4
LEGAL OPINION. THE PURCHASER SHALL HAVE
RECEIVED A LEGAL OPINION, DATED AS OF THE CLOSING DATE, IN FORM, SCOPE AND
SUBSTANCE REASONABLY SATISFACTORY TO THE PURCHASER AND IN SUBSTANTIALLY THE FORM
OF EXHIBIT F ATTACHED HERETO.
6.5
DELIVERY OF SECURITIES. THE COMPANY SHALL HAVE
EXECUTED AND DELIVERED TO THE PURCHASER THE NOTE AND THE WARRANT (IN SUCH
DENOMINATIONS AS SUCH BUYER SHALL REQUEST) FOR THE NOTE AND THE WARRANT BEING
PURCHASED BY THE PURCHASER AT THE CLOSING.
6.6
BOARD RESOLUTIONS. THE BOARD OF DIRECTORS OF
THE COMPANY SHALL HAVE ADOPTED RESOLUTIONS CONSISTENT WITH SECTION 2.4 ABOVE AND
IN A FORM REASONABLY ACCEPTABLE TO THE PURCHASER (THE "RESOLUTIONS").
6.7
RESERVATION OF SHARES. AS OF THE 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 NOTE AND THE EXERCISE
OF THE WARRANT, AT LEAST THE NUMBER OF SHARES OF COMMON STOCK AS SET FORTH IN
SECTION 4.11 HEREOF.
6.8
TRANSFER AGENT INSTRUCTIONS. THE IRREVOCABLE
TRANSFER AGENT INSTRUCTIONS SHALL HAVE BEEN DELIVERED TO AND ACKNOWLEDGED IN
WRITING BY THE COMPANY'S TRANSFER AGENT AND THE COMPANY SHALL DELIVER A COPY
THEREOF TO THE PURCHASER.
6.9
GOOD STANDING CERTIFICATES. THE COMPANY SHALL
HAVE DELIVERED TO THE PURCHASER A CERTIFICATE EVIDENCING THE INCORPORATION AND
GOOD STANDING OF THE COMPANY AND EACH SUBSIDIARY IN SUCH ENTITY'S STATE OF
INCORPORATION OR ORGANIZATION ISSUED BY THE SECRETARY OF STATE OF SUCH STATE OF
INCORPORATION OR ORGANIZATION AS OF THE CLOSING DATE.
6.10
SECRETARY'S CERTIFICATE. THE COMPANY SHALL HAVE
DELIVERED TO THE PURCHASER A SECRETARY'S CERTIFICATE, DATED AS OF THE CLOSING
DATE, CERTIFYING AS TO (A) THE RESOLUTIONS, (B) THE CHARTER, CERTIFIED AS OF THE
CLOSING DATE, BY THE SECRETARY OF STATE OF THE STATE OF DELAWARE AND (C) THE
BYLAWS, EACH AS IN EFFECT AT THE CLOSING.
18
6.11
FILINGS. THE COMPANY SHALL HAVE MADE ALL FILINGS
UNDER ALL APPLICABLE FEDERAL AND STATE SECURITIES LAWS NECESSARY TO CONSUMMATE
THE ISSUANCE OF THE SECURITIES PURSUANT TO THIS AGREEMENT IN COMPLIANCE WITH
SUCH LAWS.
6.12
SECURITY AGREEMENT. THE COMPANY SHALL HAVE DELIVERED
TO THE PURCHASER AN EXECUTED COPY OF THE SECURITY AGREEMENT.
6.13
OTHER TRANSACTION DOCUMENTS. THE COMPANY SHALL HAVE
DELIVERED TO THE PURCHASER SUCH OTHER DOCUMENTS RELATING TO THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT AS THE PURCHASER OR ITS COUNSEL MAY REASONABLY
REQUEST.
7.
COVENANTS OF THE