NEW YORK AND EACH JURISDICTION IN WHICH IS HAS
QUALIFIED TO DO BUSINESS DATED AS OF A DATE NO EARLIER THAN 7 DAYS PRIOR TO SUCH
CLOSING AND EVIDENCE OF TELEPHONE CONFIRMATION THEREOF AS OF THE CLOSE OF
BUSINESS IMMEDIATELY PRIOR TO SUCH CLOSING DATE.
(H)
SECRETARY'S CERTIFICATE.
THE COMPANY SHALL
HAVE DELIVERED TO THE PURCHASERS A CERTIFICATE EXECUTED BY ITS SECRETARY DATED
SUCH CLOSING DATE CERTIFYING WITH RESPECT TO (I) A COPY OF ITS RESTATED
CERTIFICATE AND THE RESTATED BYLAWS AS AMENDED TO AND IN EFFECT ON SUCH CLOSING
DATE AND THAT THE COMPANY IS NOT IN VIOLATION OF OR DEFAULT UNDER ANY PROVISION
OF ITS RESTATED CERTIFICATE OR RESTATED BYLAWS AS OF AND ON SUCH CLOSING DATE,
(II) BOARD RESOLUTIONS AUTHORIZING THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT AND THE TRANSACTION DOCUMENTS, (III) COPIES OF ALL MINUTES OF ALL
MEETINGS (OR EXCERPTS THEREOF) AND ALL ACTIONS BY WRITTEN CONSENT OF THE
SHAREHOLDERS OF THE COMPANY AUTHORIZING THE TRANSACTIONS CONTEMPLATED IN THIS
AGREEMENT AND THE TRANSACTION DOCUMENTS AND (IV) INCUMBENCY MATTERS AND SUCH
OTHER PROCEEDINGS RELATING TO THE AUTHORIZATION, EXECUTION AND DELIVERY OF THIS
AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS AS MAY BE REASONABLY REQUESTED BY
THE PURCHASERS.
(I)
OPINION OF COMPANY COUNSEL.
EACH
PURCHASER SHALL HAVE RECEIVED FROM COUNSEL TO THE COMPANY (REASONABLY ACCEPTABLE
TO THE PURCHASERS), AN OPINION, DATED SUCH CLOSING DATE, IN THE FORM ATTACHED
HERETO AS EXHIBIT H.
(J)
CROSS-RECEIPTS OF THE PURCHASERS.
THE
COMPANY AND THE PURCHASERS SHALL HAVE EXECUTED AND DELIVERED A CROSS-RECEIPT
ACKNOWLEDGING THE COMPANY'S DELIVERY TO THE PURCHASERS OF THE CERTIFICATES
REPRESENTING THE PURCHASED SECURITIES ISSUED AND SOLD TO THE PURCHASERS ON SUCH
CLOSING DATE TO THE PURCHASERS AND THE PURCHASERS' PAYMENT THEREFOR.
24
(K)
NO ACCELERATION OF VESTING, ETC.
THE
COMPANY SHALL NOT HAVE MADE ANY DETERMINATION OR TAKEN ANY OTHER ACTIONS THAT
COULD RESULT IN THE, AND THERE SHALL HAVE BEEN NO, ACCELERATION OF THE VESTING
OR RIGHTS TO EXERCISE OPTIONS OR WARRANTS OR CAUSE AN ACCELERATED PAY-OUT OF ANY
SUCH OPTIONS.
(L)
COMPLIANCE WITH COVENANTS.
ON ANY SUCH
CLOSING DATE, THE COMPANY SHALL BE IN COMPLIANCE WITH EACH OF THE COVENANTS SET
FORTH IN SECTION 6.
(M)
PRO-FORMA CAPITALIZATION TABLE.
THE COMPANY
SHALL HAVE DELIVERED TO THE PURCHASERS A REVISED EXHIBIT D REFLECTING THE ISSUED
AND OUTSTANDING COMMON STOCK, SERIES A-1 PREFERRED STOCK AND SERIES A-2
PREFERRED STOCK AND ALL OPTIONS AND WARRANTS WITH RESPECT THERETO ON A FULLY
DILUTED BASIS IMMEDIATELY AFTER SUCH CLOSING DATE.
(N)
DISCLOSURE SCHEDULE.
THE COMPANY SHALL HAVE
DELIVERED TO THE PURCHASERS A REVISED DISCLOSURE SCHEDULE ACCURATELY REFLECTING
ANY ADDITIONAL INFORMATION REQUIRED TO BE PROVIDED TO THE PURCHASERS PURSUANT TO
THIS AGREEMENT BETWEEN THE DATE HEREOF AND ANY SUCH CLOSING DATE.
(O)
CONVERSION SHARES.
THE CONVERSION SHARES
HAVE BEEN DULY RESERVED FOR ISSUANCE AND WHEN ISSUED WILL BE DULY AND VALIDLY
ISSUED, FULLY PAID AND NONASSESSABLE.
(P)
LISTING ON STOCK EXCHANGE.
THE COMMON STOCK
SHALL BE LISTED ON NASDAQ, ANY OTHER NATIONAL SECURITIES EXCHANGE AS IDENTIFIED
UNDER THE 34 ACT, OR THE NASDAQ