CONTEMPLATED IN SECTION 4(M), THE COMPANY HAS INSUFFICIENT AUTHORIZED SHARES.
(II)
THE REPRESENTATIONS AND WARRANTIES OF THE COMPANY SHALL BE TRUE
AND CORRECT 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
THIRD 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 THIRD CLOSING DATE. IF
REQUESTED BY THE BUYER, THE BUYER SHALL HAVE RECEIVED A CERTIFICATE, EXECUTED BY
TWO OFFICERS OF THE COMPANY, DATED AS OF THE THIRD 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 THIRD CLOSING DATE
REGARDING THE REPRESENTATION CONTAINED IN SECTION 3(C) ABOVE.
(III)
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.
(IV)
THE COMPANY SHALL HAVE CERTIFIED THAT ALL CONDITIONS TO THE THIRD
CLOSING HAVE BEEN SATISFIED AND THAT THE COMPANY REGISTRATION STATEMENT SHALL BE
DECLARED EFFECTIVE BY THE SEC, IN COMPLIANCE WITH THE RULES AND REGULATIONS
PROMULGATED BY THE SEC, WITHIN TWO(2) TRADING DAYS AFTER THE THIRD CLOSING. IF
REQUESTED BY THE BUYER, THE BUYER SHALL HAVE RECEIVED A CERTIFICATE, EXECUTED BY
THE TWO OFFICERS OF THE COMPANY, DATED AS OF THE THIRD
CLOSING DATE, TO THE
FOREGOING EFFECT.
8.
INDEMNIFICATION.
(A)
IN CONSIDERATION OF THE BUYER'S EXECUTION AND DELIVERY OF THIS
AGREEMENT AND ACQUIRING THE CONVERTIBLE DEBENTURES AND THE CONVERSION SHARES
HEREUNDER, AND IN ADDITION TO ALL OF THE COMPANY'S OTHER OBLIGATIONS UNDER THIS
AGREEMENT, THE COMPANY SHALL DEFEND, PROTECT, INDEMNIFY AND HOLD HARMLESS THE
BUYER(S) AND EACH OTHER HOLDER OF THE CONVERTIBLE DEBENTURES AND THE CONVERSION
SHARES, AND ALL OF THEIR OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS (INCLUDING,
WITHOUT LIMITATION, THOSE RETAINED IN CONNECTION WITH THE TRANSACTIONS
19
CONTEMPLATED BY THIS AGREEMENT) (COLLECTIVELY, THE "BUYER INDEMNITEES") FROM AND
AGAINST ANY AND ALL ACTIONS, CAUSES OF ACTION, SUITS, CLAIMS, LOSSES, COSTS,
PENALTIES, FEES, LIABILITIES AND DAMAGES, AND EXPENSES IN CONNECTION THEREWITH
(IRRESPECTIVE OF WHETHER ANY SUCH BUYER INDEMNITEE IS A PARTY TO THE ACTION FOR
WHICH INDEMNIFICATION HEREUNDER IS SOUGHT), AND INCLUDING REASONABLE ATTORNEYS'
FEES AND DISBURSEMENTS (THE "INDEMNIFIED LIABILITIES"), INCURRED BY THE BUYER
INDEMNITEES OR ANY OF THEM AS A RESULT OF, OR ARISING OUT OF, OR RELATING TO (A)
ANY MISREPRESENTATION OR BREACH OF ANY REPRESENTATION OR WARRANTY MADE BY THE
COMPANY IN THIS AGREEMENT, THE CONVERTIBLE DEBENTURES OR THE INVESTOR
REGISTRATION RIGHTS AGREEMENT OR ANY OTHER CERTIFICATE, INSTRUMENT OR