SHARES, IN
FORM, SCOPE AND SUBSTANCE REASONABLY SATISFACTORY TO THE BUYERS AND THE NOTE
HOLDERS WITH RESPECT TO THE MATTERS SET FORTH IN EXHIBIT A ATTACHED HERETO.
THE
BUYERS PURCHASING SHARES IN THE SECOND CLOSING SHALL HAVE RECEIVED AN OPINION OF
THE COMPANY'S COUNSEL, DATED AS OF THE SECOND CLOSING DATE WITH RESPECT TO THE
ISSUANCE AND SALE OF THE SHARES AT THE SECOND CLOSING, IN FORM, SCOPE AND
SUBSTANCE REASONABLY SATISFACTORY TO THE BUYERS WITH RESPECT TO THE MATTERS SET
FORTH IN EXHIBIT A ATTACHED HERE (OTHER THAN THE MATTERS RELATING TO THE
ISSUANCE OF THE CONVERSION SHARES).
16
7.6
NO MATERIAL ADVERSE CHANGE.
THERE SHALL HAVE BEEN NO MATERIAL
ADVERSE CHANGE IN THE ASSETS, LIABILITIES (CONTINGENT OR OTHERWISE), AFFAIRS,
BUSINESS, OPERATIONS, PROSPECTS OR CONDITION (FINANCIAL OR OTHERWISE) OF THE
COMPANY PRIOR TO THE INITIAL CLOSING DATE AND THE SECOND CLOSING DATE, AS
APPLICABLE.
7.7
HSR NOTIFICATION.
WITH RESPECT TO THE SECOND CLOSING, THE WAITING
PERIOD UNDER THE HSR ACT SHALL HAVE EXPIRED OR EARLY TERMINATION SHALL HAVE BEEN
GRANTED WITH RESPECT TO THE HSR NOTIFICATIONS.
7.8
AUTHORIZED SHARES.
AS A CONDITION TO THE SECOND CLOSING, THE
COMPANY'S STOCKHOLDERS SHALL HAVE APPROVED AN INCREASE IN THE COMPANY'S
AUTHORIZED COMMON STOCK OR THE COMPANY SHALL OTHERWISE HAVE A SUFFICIENT NUMBER
OF SHARES OF AUTHORIZED BUT UNISSUED SHARES OF COMMON STOCK SO THAT THE COMPANY
IS ABLE TO CONSUMMATE THE SECOND CLOSING IN FULL.
7.9
NO PROHIBITION.
NEITHER THE CONSUMMATION NOR THE PERFORMANCE OF
THE ACQUISITION OF THE SHARES BY THE BUYERS AND THE CONVERSION SHARES BY THE
NOTE HOLDERS HEREUNDER WILL MATERIALLY CONTRAVENE, OR CONFLICT WITH, OR RESULT
IN A MATERIAL VIOLATION OF (A) ANY APPLICABLE LEGAL REQUIREMENT, OR (B) ANY
LEGAL REQUIREMENT THAT HAS BEEN PUBLISHED, INTRODUCED, OR OTHERWISE PROPOSED BY
OR BEFORE ANY GOVERNMENTAL BODY.
7.10
FAIRNESS OPINION.
THE COMPANY SHALL HAVE RECEIVED A WRITTEN
OPINION FROM A REPUTABLE THIRD PARTY FINANCIAL ADVISOR REASONABLY SATISFACTORY
TO THE COMPANY AND THE BUYERS WITH RESPECT TO THE FAIRNESS FROM A FINANCIAL
POINT OF VIEW TO THE COMPANY'S SHAREHOLDERS OF THE PER SHARE PRICE.
ARTICLE 8
TERMINATION
8.1
TERMINATION PROVISIONS.
THIS AGREEMENT MAY BE TERMINATED AT ANY
TIME BEFORE THE INITIAL CLOSING DATE OR THE SECOND CLOSING DATE:
A.
BY MUTUAL CONSENT OF THE COMPANY AND THE BUYERS;
B.
BY EITHER THE COMPANY OR THE BUYERS, AS APPLICABLE, IN THE EVENT THAT ANY
OF THE CONDITIONS PRECEDENT TO THEIR RESPECTIVE OBLIGATIONS TO CONSUMMATE THE
TRANSACTIONS CONTEMPLATED HEREBY AS SET FORTH IN ARTICLE 6 OR ARTICLE 7, THROUGH
NO FAULT OF THE TERMINATING PARTY, HAVE NOT BEEN MET AND SATISFIED AND HAVE
BECOME IMPOSSIBLE OF FULFILLMENT;
C.
BY EITHER THE COMPANY OR THE BUYERS IF EITHER THE INITIAL CLOSING DATE OR
THE SECOND CLOSING DATE DOES NOT OCCUR BY MAY 31, 2008 OR SUCH LATER DATE AS THE
COMPANY AND THE BUYERS MAY MUTUALLY AGREE UPON (PROVIDED THAT THE TERMINATING
PARTY IS NOT THEN IN MATERIAL BREACH OF ANY REPRESENTATION, WARRANTY, COVENANT
OR OTHER AGREEMENT CONTAINED HEREIN);
D.
BY THE BUYERS