ATTACHED THERETO IS A TRUE
AND COMPLETE COPY OF THE BY-LAWS OF THE COMPANY AS IN EFFECT ON THE DATE OF SUCH
CERTIFICATION; (B) THAT ATTACHED THERETO IS A TRUE AND COMPLETE COPY OF ALL
RESOLUTIONS ADOPTED BY THE BOARD OF DIRECTORS OR THE SHAREHOLDERS OF THE COMPANY
AUTHORIZING THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT AND THE
SECURITY AND PLEDGE AGREEMENT, THE ISSUANCE, SALE AND DELIVERY OF THE NOTES AND
WARRANTS AND THE RESERVATION, ISSUANCE AND DELIVERY OF THE WARRANT SHARES, AND
THAT ALL SUCH RESOLUTIONS ARE IN FULL FORCE AND EFFECT AND ARE ALL THE
RESOLUTIONS ADOPTED IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT; (C) THAT THE CERTIFICATE OF INCORPORATION OF THE COMPANY HAS NOT BEEN
AMENDED SINCE THE DATE OF THE LAST AMENDMENT REFERRED TO IN THE CERTIFICATE
DELIVERED PURSUANT TO CLAUSE (I)(B) ABOVE; AND (D) TO THE INCUMBENCY AND
SPECIMEN SIGNATURE OF EACH OFFICER OF THE COMPANY EXECUTING ANY OF THIS
AGREEMENT, THE SECURITY AND PLEDGE AGREEMENT, THE NOTES AND WARRANTS AND ANY
CERTIFICATE OR INSTRUMENT FURNISHED PURSUANT HERETO, AND A CERTIFICATION BY
ANOTHER OFFICER OF THE COMPANY AS TO THE INCUMBENCY AND SIGNATURE OF THE OFFICER
SIGNING THE CERTIFICATE REFERRED TO IN THIS CLAUSE (II); AND
(III)
SUCH ADDITIONAL SUPPORTING DOCUMENTS AND OTHER INFORMATION WITH
RESPECT TO THE OPERATIONS AND AFFAIRS OF THE COMPANY AS THE PURCHASERS OR THEIR
COUNSEL REASONABLY MAY REQUEST.
(H)
PREEMPTIVE AND FIRST REFUSAL RIGHTS.
ALL SHAREHOLDERS OF THE
COMPANY HAVING ANY PREEMPTIVE OR FIRST REFUSAL RIGHTS WITH RESPECT TO THE
ISSUANCE OF THE NOTES AND WARRANTS OR THE WARRANT SHARES SHALL HAVE IRREVOCABLY
WAIVED THE SAME IN WRITING OR ALL SUCH RIGHTS SHALL HAVE EXPIRED.
(I)
COMMITMENT FEE.
THE COMPANY SHALL HAVE PAID TO THE PURCHASERS
THE COMMITMENT FEE IN THE AGGREGATE AMOUNT OF $125,000.
(J)
FEES OF PURCHASERS' COUNSEL.
THE COMPANY SHALL HAVE PAID IN
ACCORDANCE WITH SECTION 6.01 THE FEES AND DISBURSEMENTS OF EACH PURCHASERS'
COUNSEL INVOICED AT THE CLOSING.
All such documents shall be satisfactory in form and substance to the Purchasers
and their counsel.
ARTICLE V
COVENANTS OF THE COMPANY
The Company agrees that, so long as any Notes are outstanding, except to the
extent compliance in any case or cases is waived in writing by the holders of at
least 66-2/3% of the aggregate unpaid principal amount of the Notes then
outstanding:
13
SECTION 5.01.
FINANCIAL STATEMENTS, REPORTS, ETC.
THE COMPANY SHALL FURNISH
TO EACH PURCHASER:
(A)
WITHIN NINETY (90) DAYS AFTER THE END OF EACH FISCAL YEAR OF THE
COMPANY A CONSOLIDATED BALANCE SHEET OF THE COMPANY AND ITS SUBSIDIARIES, IF
ANY, AS OF THE END OF SUCH FISCAL YEAR AND THE RELATED CONSOLIDATED STATEMENTS
OF INCOME FOR THE FISCAL YEAR THEN ENDED, PREPARED IN ACCORDANCE WITH GAAP AND
CERTIFIED BY A FIRM OF INDEPENDENT PUBLIC ACCOUNTANTS OF RECOGNIZED NATIONAL
STANDING SELECTED BY THE BOARD OF DIRECTORS OF THE COMPANY;
(B)
WITHIN FORTY FIVE (45) DAYS AFTER THE END OF EACH FISCAL QUARTER
IN EACH FISCAL YEAR A CONSOLIDATED BALANCE