SECURITY AGREEMENT DULY EXECUTED BY
THE PURCHASER.
(III)
THE SERVICES AGREEMENT DULY EXECUTED BY THE
PURCHASER.
(IV)
THE LPV ADDENDUM DULY EXECUTED BY THE
PURCHASER.
(V)
THE PURCHASE PRICE OF THE NOTE AND THE
PRIMARY SHARES PURCHASED HEREUNDER IN IMMEDIATELY AVAILABLE FUNDS AS PROVIDED IN
SECTION 3 HEREOF.
(B)
A CERTIFICATE DATED THE CLOSING DATE AND
SIGNED BY AN EXECUTIVE OFFICER OF THE PURCHASER, TO THE EFFECT THAT THE
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER CONTAINED IN THIS AGREEMENT THAT
ARE QUALIFIED BY A MATERIALITY THRESHOLD OR BY REFERENCE TO A MATERIAL ADVERSE
EFFECT SHALL BE TRUE AND CORRECT IN ALL RESPECTS, AND THAT ARE NOT QUALIFIED BY
A MATERIALITY THRESHOLD OR BY REFERENCE TO A MATERIAL ADVERSE EFFECT SHALL BE
TRUE AND CORRECT IN ALL MATERIAL RESPECTS, IN EACH CASE, ON THE CLOSING DATE
(UNLESS ANY SUCH REPRESENTATIONS AND WARRANTIES ARE STATED TO BE MADE AS OF A
SPECIFIC DATE, IN WHICH CASE THEY SHALL BE TRUE AND CORRECT IN ALL RESPECTS OR
ALL MATERIAL RESPECTS, AS APPLICABLE, AS OF SUCH DATE), AND THAT THE PURCHASER
HAS COMPLIED IN ALL MATERIAL RESPECTS WITH ALL OF THE AGREEMENTS AND SATISFIED
ALL OF THE CONDITIONS ON ITS PART TO BE PERFORMED OR SATISFIED HEREUNDER ON OR
BEFORE THE CLOSING DATE.
(C)
THE PURCHASER SHALL DELIVER TO THE COMPANY
A COMPLETED IRS FORM W-9 OR OTHERWISE ESTABLISH, TO THE COMPANY'S REASONABLE
SATISFACTION, THAT THE PURCHASER IS NOT SUBJECT TO BACKUP WITHHOLDING UNDER
SECTION 3406 OF THE CODE.
(D)
THERE SHALL NOT BE IN EFFECT ANY JUDGMENT,
ORDER OR DECREE OF A GOVERNMENTAL BODY OF COMPETENT JURISDICTION RESTRAINING,
ENJOINING OR OTHERWISE PROHIBITING THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT.
6.
COVENANTS OF THE COMPANY. IN FURTHER
CONSIDERATION OF THE AGREEMENTS OF THE PURCHASER CONTAINED IN THIS AGREEMENT,
THE COMPANY AND OPERATING COVENANT WITH THE PURCHASER AS FOLLOWS:
11
(A)
WHETHER OR NOT THE TRANSACTIONS
CONTEMPLATED IN THIS AGREEMENT ARE CONSUMMATED OR THIS AGREEMENT IS TERMINATED,
TO PAY OR CAUSE TO BE PAID ALL EXPENSES INCIDENT TO THE PERFORMANCE OF ITS
OBLIGATIONS UNDER THIS AGREEMENT, INCLUDING: (I) ALL COSTS AND EXPENSES RELATED
TO THE TRANSFER AND DELIVERY OF THE NOTE AND THE PRIMARY SHARES TO THE
PURCHASER, INCLUDING ANY TRANSFER OR OTHER TAXES PAYABLE THEREON, (II) THE FEES
AND EXPENSES, IF ANY, INCURRED IN CONNECTION WITH THE LISTING OF THE PRIMARY
SHARES AND THE UNDERLYING SHARES ON THE AMERICAN STOCK EXCHANGE, (III) THE COSTS
AND CHARGES OF ANY TRANSFER AGENT, REGISTRAR OR DEPOSITARY, (IV) THE COST OF THE
PREPARATION, ISSUANCE AND DELIVERY OF THE NOTE AND THE PRIMARY SHARES AND (V)
THE DOCUMENT PRODUCTION CHARGES AND EXPENSES ASSOCIATED WITH PRINTING THIS
AGREEMENT. FOR THE AVOIDANCE OF DOUBT, EACH PARTY SHALL BEAR ITS OWN COSTS AND
EXPENSES (INCLUDING ATTORNEYS' FEES) ASSOCIATED WITH THE PREPARATION,
NEGOTIATION AND EXECUTION OF THIS AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS.
(B)
NOT TO, AND NOT PERMIT ANY OF ITS AFFILIATES
TO, SELL, OFFER FOR SALE OR SOLICIT OFFERS TO BUY OR OTHERWISE NEGOTIATE IN
RESPECT OF ANY SECURITY (AS DEFINED