CLOSING DATE AND ASSUMING THE WARRANTS WERE
FULLY EXERCISABLE ON SUCH DATE REGARDLESS OF ANY LIMITATION ON THE TIMING OR
AMOUNT OF SUCH EXERCISES), PLUS (B) THE NUMBER OF AIR SHARES ISSUABLE UPON
EXERCISE OF THE AIRS, ASSUMING THE AIRS WERE GRANTED ON THE CLOSING DATE (AFTER
GIVING EFFECT TO THE AIRS TO BE ISSUED ON THE CLOSING DATE AND ASSUMING THE AIRS
WERE FULLY EXERCISABLE ON SUCH DATE REGARDLESS OF ANY LIMITATION ON THE TIMING
OR AMOUNT OF SUCH EXERCISES).
(J)
SECRETARY'S CERTIFICATE. THE COMPANY
SHALL HAVE DELIVERED TO THE PURCHASERS A SECRETARY'S CERTIFICATE, DATED AS OF
THE CLOSING DATE, AS TO (I) THE RESOLUTIONS, (II) THE ARTICLES AND THE BYLAWS,
EACH AS IN EFFECT AT THE CLOSING, AND (III) THE AUTHORITY AND INCUMBENCY OF THE
OFFICERS OF THE COMPANY EXECUTING THE TRANSACTION DOCUMENTS AND ANY OTHER
DOCUMENTS REQUIRED TO BE EXECUTED OR DELIVERED IN CONNECTION THEREWITH.
(K)
OFFICER'S CERTIFICATE. ON THE CLOSING DATE,
THE COMPANY SHALL HAVE DELIVERED TO THE PURCHASERS A CERTIFICATE OF AN EXECUTIVE
OFFICER OF THE COMPANY, DATED AS OF THE CLOSING DATE, CONFIRMING THE ACCURACY OF
THE COMPANY'S REPRESENTATIONS, WARRANTIES AND COVENANTS AS OF THE CLOSING DATE
AND CONFIRMING THE COMPLIANCE BY THE COMPANY WITH THE CONDITIONS PRECEDENT SET
FORTH IN THIS SECTION 4.2 AS OF THE CLOSING DATE.
(L)
FEES AND EXPENSES. AS OF THE CLOSING
DATE, ALL FEES AND EXPENSES REQUIRED TO BE PAID BY THE COMPANY SHALL HAVE BEEN
OR AUTHORIZED TO BE PAID BY THE COMPANY AS OF THE CLOSING DATE.
(M)
REGISTRATION RIGHTS AGREEMENT. AS OF THE
CLOSING DATE, THE PARTIES SHALL HAVE ENTERED INTO THE REGISTRATION RIGHTS
AGREEMENT IN THE FORM OF EXHIBIT E ATTACHED HERETO.
22
(N)
LOCK-UP AGREEMENTS. EACH OFFICER, DIRECTOR
AND HOLDER OF 10% OR MORE OF THE COMMON STOCK SHALL HAVE EXECUTED AND DELIVERED
TO THE PURCHASERS A LOCK-UP AGREEMENT IN THE FORM ATTACHED HERETO AS EXHIBIT F.
(O)
MATERIAL ADVERSE EFFECT. NO MATERIAL ADVERSE
EFFECT SHALL HAVE OCCURRED.
ARTICLE V
TRANSFER RESTRICTIONS AND LEGENDS
SECTION 5.1
(A)
THE SECURITIES MAY ONLY BE DISPOSED OF IN
COMPLIANCE WITH STATE AND FEDERAL SECURITIES LAWS. IN CONNECTION WITH ANY
TRANSFER OF SECURITIES OTHER THAN PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT, TO THE COMPANY, TO AN AFFILIATE OF A PURCHASER OR IN CONNECTION WITH
A PLEDGE PERMITTED BY SECTION 5.1(B), THE COMPANY MAY REQUIRE THE TRANSFEROR
THEREOF TO PROVIDE TO THE COMPANY AN OPINION OF COUNSEL SELECTED BY THE
TRANSFEROR, THE FORM AND SUBSTANCE OF WHICH OPINION SHALL BE REASONABLY
SATISFACTORY TO THE COMPANY, TO THE EFFECT THAT SUCH TRANSFER DOES NOT REQUIRE
REGISTRATION OF SUCH TRANSFERRED SECURITIES UNDER THE SECURITIES ACT. AS A
CONDITION OF TRANSFER, ANY SUCH TRANSFEREE SHALL AGREE IN WRITING TO BE BOUND BY
THE TERMS OF THIS AGREEMENT AND SHALL HAVE THE RIGHTS OF A PURCHASER UNDER THIS
AGREEMENT AND THE REGISTRATION RIGHTS AGREEMENT.
(b)
The Purchasers agree to the imprinting, so
long as is required by this Section 5.1(b), of a legend on any of the Securities
in the following