ALL MATERIAL RESPECTS AS OF EACH OF THE
DATE OF THIS AGREEMENT AND THE CLOSING DATE, (II) ALL COVENANTS, AGREEMENTS AND
OBLIGATIONS REQUIRED BY THIS AGREEMENT TO BE PERFORMED OR COMPLIED WITH BY THE
COMPANY, PRIOR TO OR AT THE CLOSING, HAVE BEEN PERFORMED OR COMPLIED WITH AND
(III) THE ITEMS REFERENCED IN SECTIONS 2.1(D)(IV)-(VII) SHALL HAVE BEEN
SATISFIED AND ARE TRUE AND CORRECT AS OF THE CLOSING;
(VII)
THE ESCROW AGREEMENT, DULY EXECUTED BY THE
COMPANY; AND
(VIII)
ANY OTHER DOCUMENTS REASONABLY REQUESTED BY SUCH
INVESTOR.
(C)
AT THE CLOSING, EACH INVESTOR SHALL DELIVER
OR CAUSE TO BE DELIVERED THE FOLLOWING (THE "INVESTOR DELIVERABLES"):
(I)
THE INVESTMENT AMOUNT INDICATED BELOW
SUCH INVESTOR'S NAME ON ITS SIGNATURE PAGE OF THIS AGREEMENT, IN UNITED STATES
DOLLARS AND IN IMMEDIATELY AVAILABLE FUNDS, DELIVERED BY WIRE TRANSFER TO THE
ESCROW ACCOUNT SPECIFIED IN THE ESCROW AGREEMENT FOR DEPOSIT AND DISTRIBUTION IN
ACCORDANCE WITH THE TERMS OF THE ESCROW AGREEMENT; AND
(II)
TO THE COMPANY, THE REGISTRATION RIGHTS
AGREEMENT, DULY EXECUTED BY SUCH INVESTOR.
(D)
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF
AN INVESTOR TO PURCHASE SHARES AND WARRANTS.
THE OBLIGATION OF EACH INVESTOR TO
ACQUIRE SHARES AND WARRANTS AT THE CLOSING IS SUBJECT TO THE SATISFACTION OR
WAIVER BY SUCH INVESTOR, AT OR BEFORE THE CLOSING, OF EACH OF THE FOLLOWING
CONDITIONS:
(I)
REPRESENTATIONS AND WARRANTIES.
THE
REPRESENTATIONS AND WARRANTIES OF THE COMPANY CONTAINED IN THE TRANSACTION
DOCUMENTS SHALL BE TRUE AND CORRECT AS OF THE DATE WHEN MADE AND AS OF THE
CLOSING DATE AS THOUGH MADE ON AND AS OF SUCH DATE;
(II)
PERFORMANCE.
THE COMPANY SHALL HAVE
PERFORMED, SATISFIED AND COMPLIED WITH ALL COVENANTS, AGREEMENTS AND CONDITIONS
REQUIRED BY THE TRANSACTION DOCUMENTS TO BE PERFORMED, SATISFIED OR COMPLIED
WITH BY IT AT OR PRIOR TO THE CLOSING;
7
(III)
OFFICER'S CERTIFICATE.
THE OFFICER'S
CERTIFICATE DESCRIBED IN SECTION 2.1(B)(VI) HEREOF SHALL HAVE BEEN DELIVERED;
(IV)
NO INJUNCTION.
NO STATUTE, RULE, REGULATION,
EXECUTIVE ORDER, DECREE, RULING OR INJUNCTION SHALL HAVE BEEN ENACTED, ENTERED,
PROMULGATED OR ENDORSED BY ANY COURT OR GOVERNMENTAL AUTHORITY OF COMPETENT
JURISDICTION THAT PROHIBITS THE CONSUMMATION OF ANY OF THE TRANSACTIONS
CONTEMPLATED BY THE TRANSACTION DOCUMENTS;
(V)
ADVERSE CHANGES.
SINCE THE EXECUTION OF
THIS AGREEMENT, NO EVENT OR SERIES OF EVENTS SHALL HAVE OCCURRED THAT HAS HAD OR
WOULD REASONABLY BE EXPECTED TO RESULT IN A MATERIAL ADVERSE EFFECT;
(VI)
NO SUSPENSIONS OF TRADING IN COMMON STOCK.
TRADING IN THE COMMON STOCK SHALL NOT HAVE BEEN SUSPENDED BY THE COMMISSION OR
ANY TRADING MARKET (EXCEPT FOR ANY SUSPENSIONS OF TRADING OF NOT MORE THAN ONE
TRADING DAY SOLELY TO PERMIT DISSEMINATION OF MATERIAL INFORMATION REGARDING THE
COMPANY) AT ANY TIME SINCE THE DATE OF EXECUTION OF THIS AGREEMENT;
(VII)
MINIMUM SUBSCRIPTIONS.
THE AGGREGATE OF ALL
INVESTORS' INVESTMENT AMOUNTS SHALL NOT BE LESS THAN $10,000,000.
(VIII)
DEBT CONVERSION.
EXCEPT FOR THE $500,000 IN
BRIDGE NOTES DESCRIBED IN SCHEDULE 3.1(DD), TOGETHER WITH ACCRUED INTEREST
THEREON, ALL OUTSTANDING INDEBTEDNESS OF THE COMPANY (INCLUDING ALL ACCRUED AND
UNPAID INTEREST, DAMAGES AND OTHER AMOUNTS