CERTIFICATE OF INCORPORATION AS CERTIFIED BY THE
SECRETARY OF STATE OF THE STATE OF DELAWARE WITHIN 10 DAYS OF THE CLOSING DATE.
(VII)
THE COMPANY SHALL HAVE DELIVERED TO SUCH BUYER A
CERTIFICATE, EXECUTED BY THE CHIEF EXECUTIVE OFFICER 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 (THE "RESOLUTIONS"), (II) THE
CERTIFICATE OF INCORPORATION AND (III) THE BYLAWS, EACH AS IN EFFECT AT THE
CLOSING, IN THE FORM ATTACHED HERETO AS EXHIBIT I.
(VIII)
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 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 OF THE COMPANY, DATED AS OF
THE CLOSING DATE, TO THE FOREGOING IN THE FORM ATTACHED HERETO AS EXHIBIT J.
(IX)
THE COMPANY SHALL HAVE DELIVERED TO SUCH
BUYER A LETTER FROM THE COMPANY'S TRANSFER AGENT CERTIFYING THE NUMBER OF SHARES
OF COMPANY COMMON STOCK OUTSTANDING AS OF A DATE WITHIN FIVE DAYS OF THE CLOSING
DATE.
(X)
THE COMPANY COMMON STOCK (I) SHALL BE
DESIGNATED FOR QUOTATION OR LISTED ON THE PRINCIPAL MARKET AND (II) 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.
(XI)
THE COMPANY SHALL HAVE OBTAINED ALL
GOVERNMENTAL, REGULATORY OR THIRD PARTY CONSENTS AND APPROVALS, IF ANY,
NECESSARY FOR THE SALE OF THE NOTES AND THE WARRANTS.
(XII)
THE COMPANY SHALL HAVE DELIVERED TO SUCH BUYER
SUCH OTHER DOCUMENTS RELATING TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT
AS SUCH BUYER OR ITS COUNSEL MAY REASONABLY REQUEST.
26
(XIII)
IN ACCORDANCE WITH THE TERMS OF THE AMENDED AND
RESTATED PLEDGE AGREEMENT AND THE AMENDED AND RESTATED SECURITIES ACCOUNT
CONTROL AGREEMENT, THE CUSTODIAN SHALL HAVE POSSESSION OF THE CERTIFICATE(S)
REPRESENTING THE AVII SHARES, ALONG WITH DULY EXECUTED BLANK STOCK POWERS.
(XIV)
THE COMPANY SHALL HAVE DELIVERED TO SUCH BUYER A
TRUE, CORRECT AND COMPLETE COPY OF EACH PROSPECTUS PURSUANT TO THE AVII
REGISTRATION STATEMENTS IN ACCORDANCE WITH SECTION 4(R).
(XV)
THE TRANSACTIONS CONTEMPLATED BY ALL OF THE
CONVERSION AND AMENDMENT AGREEMENTS SHALL HAVE BEEN CONSUMMATED.
8.
TERMINATION.
In the event that the Closing shall not have
occurred with respect to a Buyer on or before five (5) Business Days from the
date hereof due to the Company's or such Buyer's failure