IN ALL MATERIAL RESPECTS (EXCEPT TO THE EXTENT THAT ANY OF SUCH
REPRESENTATIONS AND WARRANTIES IS ALREADY QUALIFIED AS TO MATERIALITY IN SECTION
3 ABOVE, IN WHICH CASE, SUCH REPRESENTATIONS AND WARRANTIES SHALL BE TRUE AND
CORRECT WITHOUT FURTHER QUALIFICATION) AS OF THE DATE WHEN MADE AND AS OF THE
FIRST 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 WITH THE COVENANTS,
AGREEMENTS AND CONDITIONS REQUIRED BY THIS AGREEMENT TO BE PERFORMED, SATISFIED
OR COMPLIED WITH BY THE COMPANY AT OR PRIOR TO THE FIRST CLOSING DATE. IF
REQUESTED BY THE BUYER, THE BUYER SHALL HAVE RECEIVED A CERTIFICATE, EXECUTED BY
THE PRESIDENT OF THE COMPANY, DATED AS OF THE FIRST CLOSING DATE, TO THE
FOREGOING EFFECT AND AS TO SUCH OTHER MATTERS AS MAY BE REASONABLY REQUESTED BY
THE BUYER INCLUDING, WITHOUT LIMITATION AN UPDATE AS OF THE FIRST CLOSING DATE
REGARDING THE REPRESENTATION CONTAINED IN SECTION 3(C) ABOVE.
(IV)
THE COMPANY SHALL HAVE EXECUTED AND DELIVERED TO THE BUYER(S) THE
CONVERTIBLE DEBENTURES IN THE RESPECTIVE AMOUNTS SET FORTH OPPOSITE EACH
BUYER(S) NAME ON SCHEDULE I ATTACHED HERETO.
(V)
THE BUYER(S) SHALL HAVE RECEIVED AN OPINION OF COUNSEL FROM BURNS,
FIGA & WILL, P.C. IN THE FORM OF SCHEDULE 7(A)(V).
(VI)
THE COMPANY SHALL HAVE PROVIDED TO THE BUYER(S) A CERTIFICATE OF
GOOD STANDING FROM THE SECRETARY OF STATE FROM THE STATE IN WHICH THE COMPANY IS
INCORPORATED.
(VII)
THE COMPANY SHALL HAVE AUTHORIZED THE BUYER, AS PROVIDED FOR IN
SCHEDULE 7(A)(VII) TO FILE A FORM UCC-1 OR SUCH OTHER FORMS AS MAY BE REQUIRED
TO PERFECT THE BUYER'S INTEREST IN THE PLEDGED PROPERTY AS DETAILED IN THE
SECURITY AGREEMENT DATED THE DATE HEREOF AND PROVIDED PROOF OF SUCH FILING TO
THE BUYER(S).
(VIII)
THE COMPANY SHALL HAVE PROVIDED TO THE BUYER AN ACKNOWLEDGEMENT,
TO THE SATISFACTION OF THE BUYER, FROM THE COMPANY'S INDEPENDENT CERTIFIED
PUBLIC ACCOUNTANTS AS TO ITS ABILITY TO PROVIDE ALL CONSENTS REQUIRED IN ORDER
TO FILE A REGISTRATION STATEMENT IN CONNECTION WITH THIS TRANSACTION.
(IX)
THE COMPANY SHALL HAVE RESERVED OUT OF ITS AUTHORIZED AND
UNISSUED COMMON STOCK, SOLELY FOR THE PURPOSE OF EFFECTING THE CONVERSION OF THE
CONVERTIBLE DEBENTURES, SHARES OF COMMON STOCK TO EFFECT THE CONVERSION OF ALL
OF THE
17
CONVERSION SHARES THEN OUTSTANDING TO THE EXTENT THAT THE COMPANY HAS AUTHORIZED
SHARES
REMAINING AVAILABLE FOR RESERVATION IN WHICH CASE THE OBLIGOR SHALL BE
OBLIGATED TO INCREASE ITS AUTHORIZED SHARES PURSUANT TO SECTION 4 (E) HEREIN.
(X)
THE IRREVOCABLE TRANSFER AGENT INSTRUCTIONS, IN FORM AND
SUBSTANCE SATISFACTORY TO THE BUYER, SHALL HAVE BEEN DELIVERED TO AND
ACKNOWLEDGED IN WRITING BY THE COMPANY'S TRANSFER AGENT.
(XI)
THE COMPANY HAS OBTAINED AND PROVIDED TO THE BUYERS
IRREVOCABLE
VOTING PROXIES FROM JAMES E. ALEXANDER, BORIS RUBIZHEVSKY, LINDSAY A. GARDNER,
AND JOHN SAKYS VOTING IN FAVOR OF REGISTERING AND BEING ABLE TO ISSUE THE TOTAL
TRANSACTION SHARES AS CONTEMPLATED UNDER