OF THE CLOSING DATE.
(X)
THE COMPANY SHALL HAVE DELIVERED TO SUCH
BUYER A CERTIFICATE, EXECUTED BY THE SECRETARY OF THE COMPANY AND DATED AS OF
THE CLOSING DATE, AS TO (I) THE RESOLUTIONS CONSISTENT WITH SECTION 3(B) AS
ADOPTED BY THE COMPANY'S BOARD OF DIRECTORS IN A FORM REASONABLY ACCEPTABLE TO
SUCH BUYER, (II) THE CERTIFICATE OF INCORPORATION AND (III) THE BYLAWS, EACH AS
IN EFFECT AT THE CLOSING, IN THE FORM ATTACHED HERETO AS EXHIBIT F.
(XI)
THE REPRESENTATIONS AND WARRANTIES OF THE
COMPANY SHALL BE TRUE AND CORRECT AS OF THE DATE WHEN MADE AND AS OF THE CLOSING
DATE AS THOUGH MADE AT THAT TIME (EXCEPT FOR REPRESENTATIONS AND WARRANTIES THAT
SPEAK AS OF A SPECIFIC DATE) AND THE COMPANY SHALL HAVE PERFORMED, SATISFIED AND
COMPLIED IN ALL MATERIAL RESPECTS (EXCEPT FOR COVENANTS, AGREEMENTS AND
CONDITIONS THAT ARE QUALIFIED BY MATERIALITY, WHICH SHALL BE COMPLIED WITH IN
ALL RESPECTS) 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.
SUCH BUYER SHALL HAVE RECEIVED A CERTIFICATE,
EXECUTED BY 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 SUCH BUYER IN THE FORM ATTACHED
HERETO AS EXHIBIT G.
(XII)
THE COMPANY SHALL HAVE DELIVERED TO SUCH BUYER
A LETTER FROM THE COMPANY'S TRANSFER AGENT CERTIFYING THE NUMBER OF SHARES OF
COMMON STOCK OUTSTANDING AS OF A DATE WITHIN FIVE DAYS OF THE CLOSING DATE.
(XIII)
THE COMMON STOCK (X) SHALL BE DESIGNATED FOR
QUOTATION OR LISTED ON THE PRINCIPAL MARKET AND (Y) SHALL NOT HAVE BEEN
SUSPENDED BY THE SEC OR THE PRINCIPAL MARKET FROM TRADING ON THE PRINCIPAL
MARKET NOR SHALL SUSPENSION BY THE SEC OR THE PRINCIPAL MARKET HAVE BEEN
THREATENED EITHER (A) IN WRITING BY THE SEC OR THE PRINCIPAL MARKET OR (B) BY
FALLING BELOW THE MINIMUM LISTING MAINTENANCE REQUIREMENTS OF THE PRINCIPAL
MARKET; AND THE CONVERSION SHARES ISSUABLE UPON CONVERSION OF THE PREFERRED
SHARES (WITHOUT REGARD TO ANY LIMITATIONS ON CONVERSIONS) AND THE WARRANT SHARES
ISSUABLE UPON EXERCISE OF THE WARRANTS (WITHOUT REGARD TO ANY LIMITATIONS ON
EXERCISE) SHALL BE LISTED (SUBJECT FILING AN OFFICIAL NOTICE OF ISSUANCE OF
ADDITIONAL SHARES) UPON THE PRINCIPAL MARKET.
(XIV)
THE COMPANY SHALL HAVE OBTAINED ALL GOVERNMENTAL,
REGULATORY OR THIRD PARTY CONSENTS AND APPROVALS, IF ANY, NECESSARY FOR THE SALE
OF THE PREFERRED SHARES AND THE WARRANTS.
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(XV)
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 OR ANY
SELF-REGULATORY ORGANIZATION HAVING AUTHORITY OVER THE MATTERS CONTEMPLATED
HEREBY WHICH PROHIBITS THE CONSUMMATION OF ANY OF THE TRANSACTIONS CONTEMPLATED
BY THIS AGREEMENT.
8.
TERMINATION.
IN THE EVENT THAT THE
CLOSING SHALL NOT HAVE OCCURRED WITH RESPECT TO A BUYER ON OR BEFORE FIVE (5)