Common use of Conditions to Investors Clause in Contracts

Conditions to Investors. Obligations at the Closing. Each Investor’s obligations to effect the Closing, including without limitation its obligation to purchase Shares and Warrants at the Closing, are conditioned upon the fulfillment (or waiver by such Investor in its sole and absolute discretion) of each of the following events as of the Closing Date, and the Company shall use commercially reasonable efforts to cause each of such conditions to be satisfied: (a) the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all material respects as of that particular date); (b) the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by the Company on or before the Closing; (c) the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in Section 5.1(a), 5.1(b), 5.1(i), 5.1(j), 5.1(k) and 5.1(l) have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein; (d) the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of the Closing Date, in form and substance reasonably satisfactory to such Investor; (e) the Company shall have delivered to the Escrow Agent the duly executed Warrant being purchased by such Investor and the duly executed Transfer Agent Instruction Letter; (f) the Company shall have executed and delivered to the Investor the Amended and Restated Registration Rights Agreement; (g) the Company shall have delivered to such Investor a certificate, signed by the Secretary or an Assistant Secretary of the Company, attaching (i) the charter and By-Laws of the Company, and (ii) resolutions passed by its Board of Directors to authorize the transactions contemplated hereby and by the other Transaction Documents, and certifying that such documents are true and complete copies of the originals and that such resolutions have not been amended or superseded, it being understood that such Investor may rely on such certificate as a representation and warranty of the Company made herein; (h) the Company shall have obtained the written agreement of each Specified Employee of the Company to refrain from selling shares of Common Stock for the period specified in, and in accordance with, Section 4.1(k) hereof; (i) there shall have occurred no material adverse change in the Company’s consolidated business or financial condition since the date of the Company’s most recent financial statements contained in the Disclosure Documents; (j) the Common Stock shall be traded on the OTCBB or listed on the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York Stock Exchange; (k) the Company shall have authorized and reserved for issuance the aggregate number of shares of Common Stock issuable upon exercise of all of the Warrants to be issued at the Closing (such number to be determined without regard to any restriction on such exercise); (l) there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby and by the other Transaction Documents; (m) the Company shall have waived any applicable anti-takeover measures under Delaware law or the Company’s charter documents that may be triggered by the actions set forth in the Transaction Documents; (n) the Company and the Investors shall have made filings, if any, required by the Hxxx-Xxxxx-Xxxxxx Anti-Trust Improvements Act, as amended; and (o) the Company shall have executed the Escrow Agreement.

Conditions to Investors. Obligations at the Closing. Each Investor’s obligations to effect the Closing, including without limitation its obligation to purchase Shares and Warrants its Note at the Closing, are conditioned upon the fulfillment (or waiver by such Investor in its sole and absolute discretion) of each of the following events as of the Closing Date, and the Company shall use commercially reasonable efforts to cause each of such conditions to be satisfied: (a) 5.1.1 the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all material respects as of that particular date); (b) 5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing; (c) 5.1.3 the Company shall have executed and delivered to such Investor the Note being purchased by such Investor at the Closing; 5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in Section 5.1(a), 5.1(b), 5.1(i), 5.1(j), 5.1(k) and 5.1(l) have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein; (d) the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of the Closing Date, in form and substance reasonably satisfactory to such Investor; (e) the Company shall have delivered to the Escrow Agent the duly executed Warrant being purchased by such Investor and the duly executed Transfer Agent Instruction Letter; (f) the Company shall have executed and delivered to the Investor the Amended and Restated Registration Rights Agreement; (g) the Company shall have delivered to such Investor a certificate, signed by the Secretary or an Assistant Secretary of the Company, attaching (i) the charter and By-Laws of the Company, and (ii) resolutions passed by its Board of Directors to authorize the transactions contemplated hereby and by the other Transaction Documents, and certifying that such documents are true and complete copies of the originals and that such resolutions have not been amended or superseded, it being understood that such Investor may rely on such certificate as a representation and warranty of the Company made herein; (h) the Company shall have obtained the written agreement of each Specified Employee of the Company to refrain from selling shares of Common Stock for the period specified in, and in accordance with, Section 4.1(k) hereof; (i) 5.1.5 there shall have occurred no material adverse change in the Company’s consolidated business or financial condition since the date of the Company’s most recent financial statements contained in the Disclosure Documents; (j) the Common Stock shall be traded on the OTCBB or listed on the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York Stock Exchange; (k) the Company shall have authorized and reserved for issuance the aggregate number of shares of Common Stock issuable upon exercise of all of the Warrants to be issued at the Closing (such number to be determined without regard to any restriction on such exercise); (l) 5.1.6 there shall be no injunction, restraining order or decree of any nature of any court or Government Governmental Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby and by the other Transaction Documents; (m) Documents 5.1.7. the Company shall have waived any applicable anti-takeover measures under Delaware law or paid the Company’s charter documents that may be triggered by the actions set forth expenses described in the Transaction Documents; (n) the Company and the Investors shall have made filings, if any, required by the Hxxx-Xxxxx-Xxxxxx Anti-Trust Improvements Act, as amended; and (o) the Company shall have executed the Escrow 6.8 of this Agreement.

Conditions to Investors. Obligations at the Closing. Each Investor’s obligations to effect the Closing, including without limitation its obligation to purchase Shares and Warrants the Securities at the Closing, are conditioned upon the fulfillment (or waiver by such Investor in its sole and absolute discretion) of each of the following events as of the Closing Date, and the Company shall use commercially reasonable efforts to cause each of such conditions to be satisfied: (a) 5.1.1 the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date the Closing Date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all material respects as of that particular date); provided, however, that such representations and warranties that are qualified by materiality or Material Adverse Effect shall be true and correct in all respects as so qualified; (b) 5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by the Company on or before the Closing; (c) 5.1.3 the Company shall have delivered to such Investor a certificate, signed by the a Co-Chief Executive Officer and of the Company or the Chief Financial Officer of the CompanyCompany and dated as of the Closing Date, certifying (i) that the conditions specified in Section 5.1(a), 5.1(b), 5.1(i), 5.1(j), 5.1(k) Sections 5.1.1 and 5.1(l) 5.1.2 above have been fulfilled as of the Closingfulfilled, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein, (ii) all resolutions of the Board of Directors (and committees thereof) relating to the Agreement and the transactions contemplated thereby and (iii) the incumbency of all officers of the Company executing the Agreements and any other agreement or document contemplated thereby; (d) 5.1.4 the Company shall have delivered to such Investor an opinion of counsel for the Companyopinions from XxXxxxxx Xxxxxxxx LLP and/or Shearman & Sterling LLP, dated as of the Closing Date, covering the matters set forth in form and substance reasonably satisfactory to such InvestorExhibit A; (e) the Company shall have delivered to the Escrow Agent the duly executed Warrant being purchased by such Investor and the duly executed Transfer Agent Instruction Letter; (f) the Company shall have executed and delivered to the Investor the Amended and Restated Registration Rights Agreement; (g) 5.1.5 the Company shall have delivered to such Investor a certificate, signed duly executed certificate representing the Securities being purchased by such Investor at the Closing; 5.1.6 trading in the Common Shares shall not have been suspended by the Secretary Commission or an Assistant Secretary any Trading Market (except for any suspensions of trading of not more than one Trading Day solely to permit dissemination of material information regarding the Company, attaching (i) the charter and By-Laws of the Company, and (ii) resolutions passed by its Board of Directors to authorize the transactions contemplated hereby and by the other Transaction Documents, and certifying that such documents are true and complete copies of the originals and that such resolutions have not been amended or superseded, it being understood that such Investor may rely on such certificate as a representation and warranty of the Company made herein; (h) the Company shall have obtained the written agreement of each Specified Employee of the Company to refrain from selling shares of Common Stock for the period specified in, and in accordance with, Section 4.1(k) hereof; (i) there shall have occurred no material adverse change in the Company’s consolidated business or financial condition at any time since the date of the Company’s most recent financial statements contained in the Disclosure Documents; (j) execution of this Agreement, and the Common Stock shall be traded on the OTCBB or listed on the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York Stock Exchange; (k) the Company Shares shall have authorized and reserved been at all times since such date listed for issuance the aggregate number of shares of Common Stock issuable upon exercise of all of the Warrants to be issued at the Closing (such number to be determined without regard to any restriction trading on such exercise);a Trading Market; and (l) 5.1.7 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby and by the other Transaction Documents; (m) the Company shall have waived any applicable anti-takeover measures under Delaware law or the Company’s charter documents that may be triggered by the actions set forth in the Transaction Documents; (n) the Company and the Investors shall have made filings, if any, required by the Hxxx-Xxxxx-Xxxxxx Anti-Trust Improvements Act, as amended; and (o) the Company shall have executed the Escrow Agreementhereby.

Conditions to Investors. Obligations at the Closing. Each Investor’s obligations to effect the Closing, including without limitation its obligation to purchase Shares and Warrants Warrant at the Closing, are conditioned upon the fulfillment (or waiver by such Investor in its sole and absolute discretion) of each of the following events as of the Closing Date, and the Company shall use commercially reasonable efforts to cause each of such conditions to be satisfied: (a) 5.1.1 the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all material respects as of that particular date); (b) 5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by the Company on or before the Closing; (c) 5.1.3 the Closing Date shall occur on a date that is not later than August 9, 2005; 5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this Section 5.1(a)5.1.1, 5.1(b)5.1.2, 5.1(i)5.1.10, 5.1(j)5.1.11, 5.1(k) 5.1.12 and 5.1(l) 5.1.13 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein; (d) 5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of the Closing Date, in form and substance reasonably satisfactory to such Investor; (e) 5.1.6 the Company shall have delivered to the Escrow Agent the such Investor duly executed Warrant certificates representing the Shares and the Warrants being purchased by such Investor and the duly executed Transfer Agent Instruction LetterInvestor; (f) 5.1.7 the Company shall have executed and delivered to the Investor the Amended and Restated Registration Rights Agreement; (g) 5.1.8 the Company shall have delivered to such Investor a certificate, signed by the Secretary or an Assistant Secretary of the Company, attaching (i) the charter and By-Laws of the Company, and (ii) resolutions passed by its Board of Directors to authorize the transactions contemplated hereby and by the other Transaction Documents, and certifying that such documents are true and complete copies of the originals and that such resolutions have not been amended or superseded, it being understood that such Investor may rely on such certificate as a representation and warranty of the Company made herein; (h) 5.1.9 the Company shall have obtained the written agreement of each Specified Key Employee of the Company to refrain from selling shares of Common Stock for the period specified in, and in accordance with, Section 4.1(k4.2(h) hereof; (i) 5.1.10 there shall have occurred no material adverse change in the Company’s consolidated business or financial condition since the date of the Company’s most recent financial statements contained in the Disclosure Documents; (j) 5.1.11 the Common Stock shall be traded on the OTCBB or listed on the Nasdaq Capital National Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York Stock Exchange; (k) 5.1.12 the Company shall have authorized and reserved for issuance the aggregate number of shares of Common Stock issuable upon exercise of all of the Warrants to be issued at the Closing (such number to be determined without regard to any restriction on such exercise);; and (l) 5.1.13 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby and by the other Transaction Documents; (m) the Company shall have waived any applicable anti-takeover measures under Delaware law or the Company’s charter documents that may be triggered by the actions set forth in the Transaction Documents; (n) the Company and the Investors shall have made filings, if any, required by the Hxxx-Xxxxx-Xxxxxx Anti-Trust Improvements Act, as amended; and (o) the Company shall have executed the Escrow Agreement.

Conditions to Investors. Obligations at the Closing. Each Investor’s obligations to effect the Closing, including without limitation its obligation to purchase Shares and Warrants its Note at the Closing, are conditioned upon the fulfillment (or waiver by such Investor in its sole and absolute discretion) of each of the following events as of the Closing Date, and the Company shall use commercially reasonable efforts to cause each of such conditions to be satisfied: (a) 4.1.1 the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all material respects as of that particular date); (b) 4.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing; (c) 4.1.3 the Company shall have executed and delivered to such Investor the Note being purchased by such Investor at the Closing; 4.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in Section 5.1(a), 5.1(b), 5.1(i), 5.1(j), 5.1(k) and 5.1(l) have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein; (d) the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of the Closing Date, in form and substance reasonably satisfactory to such Investor; (e) the Company shall have delivered to the Escrow Agent the duly executed Warrant being purchased by such Investor and the duly executed Transfer Agent Instruction Letter; (f) the Company shall have executed and delivered to the Investor the Amended and Restated Registration Rights Agreement; (g) the Company shall have delivered to such Investor a certificate, signed by the Secretary or an Assistant Secretary of the Company, attaching (i) the charter and By-Laws of the Company, and (ii) resolutions passed by its Board of Directors to authorize the transactions contemplated hereby and by the other Transaction Documents, and certifying that such documents are true and complete copies of the originals and that such resolutions have not been amended or superseded, it being understood that such Investor may rely on such certificate as a representation and warranty of the Company made herein; (h) the Company shall have obtained the written agreement of each Specified Employee of the Company to refrain from selling shares of Common Stock for the period specified in, and in accordance with, Section 4.1(k) hereof; (i) 5.1.5 there shall have occurred no material adverse change in the Company’s consolidated business or financial condition since the date of the Company’s most recent financial statements contained in the Disclosure Documents; (j) the Common Stock shall be traded on the OTCBB or listed on the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York Stock Exchange; (k) the Company shall have authorized and reserved for issuance the aggregate number of shares of Common Stock issuable upon exercise of all of the Warrants to be issued at the Closing (such number to be determined without regard to any restriction on such exercise); (l) 5.1.6 there shall be no injunction, restraining order or decree of any nature of any court or Government Governmental Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby and by the other Transaction Documents; (m) 5.1.7 the Company shall have waived any applicable anti-takeover measures under Delaware law or the Company’s charter documents that may be triggered by the actions set forth in obtained all necessary waivers from Western Commercial Bank with respect to its Senior Secured Loan permitting it to enter into the Transaction Documents; (n) the Company and the Investors shall have made filings, if any, required by the Hxxx-Xxxxx-Xxxxxx Anti-Trust Improvements Act, as amended; and (o) the Company shall have executed the Escrow Agreement.

Conditions to Investors. Obligations at the Closing. Each Investor’s obligations to effect the Closing, including without limitation its obligation to purchase Shares and Warrants its Note at the Closing, are conditioned upon the fulfillment (or waiver by such Investor in its sole and absolute discretion) of each of the following events as of the Closing Date, and the Company shall use commercially reasonable efforts to cause each of such conditions to be satisfied: (a) 5.1.1 the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all material respects as of that particular date); (b) 5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing; (c) 5.1.3 the Company shall have executed and delivered to such Investor the Note being purchased by such Investor at the Closing; 5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in Section 5.1(a), 5.1(b), 5.1(i), 5.1(j), 5.1(k) and 5.1(l) have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein; (d) the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of the Closing Date, in form and substance reasonably satisfactory to such Investor; (e) the Company shall have delivered to the Escrow Agent the duly executed Warrant being purchased by such Investor and the duly executed Transfer Agent Instruction Letter; (f) the Company shall have executed and delivered to the Investor the Amended and Restated Registration Rights Agreement; (g) the Company shall have delivered to such Investor a certificate, signed by the Secretary or an Assistant Secretary of the Company, attaching (i) the charter and By-Laws of the Company, and (ii) resolutions passed by its Board of Directors to authorize the transactions contemplated hereby and by the other Transaction Documents, and certifying that such documents are true and complete copies of the originals and that such resolutions have not been amended or superseded, it being understood that such Investor may rely on such certificate as a representation and warranty of the Company made herein; (h) the Company shall have obtained the written agreement of each Specified Employee of the Company to refrain from selling shares of Common Stock for the period specified in, and in accordance with, Section 4.1(k) hereof; (i) 5.1.5 there shall have occurred no material adverse change in the Company’s consolidated business or financial condition since the date of the Company’s most recent financial statements contained in the Disclosure Documents; (j) the Common Stock shall be traded on the OTCBB or listed on the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York Stock Exchange; (k) the Company shall have authorized and reserved for issuance the aggregate number of shares of Common Stock issuable upon exercise of all of the Warrants to be issued at the Closing (such number to be determined without regard to any restriction on such exercise); (l) 5.1.6 there shall be no injunction, restraining order or decree of any nature of any court or Government Governmental Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby and by the other Transaction Documents; (m) the Company shall have waived any applicable anti-takeover measures under Delaware law or the Company’s charter documents that may be triggered by the actions set forth in the Transaction Documents; (n) the Company and the Investors shall have made filings, if any, required by the Hxxx-Xxxxx-Xxxxxx Anti-Trust Improvements Act, as amended; and (o) the Company shall have executed the Escrow Agreement.

Conditions to Investors. Obligations at the Closing. Each Investor’s obligations to effect the Closing, including without limitation its obligation to purchase Shares a Debenture and Warrants Warrant at the Closing, are conditioned upon the fulfillment (or waiver by such Investor in its sole and absolute discretion) of each of the following events as of the Closing Date, and the Company shall use commercially reasonable efforts to cause each of such conditions to be satisfied: (a) 5.1.1 the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all material respects as of that particular date); (b) 5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closingclosing; (c) 5.1.3 the Closing Date shall occur on a date that is not later than January 23, 2004; 5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in Section 5.1(a), 5.1(b), 5.1(i), 5.1(j), 5.1(k) and 5.1(l) this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein; (d) 5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of the Closing Datesuch date, in substantially the form and substance reasonably satisfactory to such Investorset forth on Exhibit 5.1.5 hereto; (e) 5.1.6 the Company shall have delivered to the Escrow Agent the duly executed certificates representing the Debenture and the Warrant being purchased by such Investor and the duly executed Transfer Agent Instruction LetterInvestor; (f) 5.1.7 the Company shall have executed and delivered to the Investor the Amended and Restated Registration Rights Agreement; (g) 5.1.8 the Company shall have executed and delivered and filed the Mortgage to such Investor a certificatethe Title Company for filing, signed by upon the Secretary or an Assistant Secretary of Closing, with the Company, attaching (i) the charter and By-Laws of the Companyappropriate Governmental Authority, and (ii) resolutions passed by its Board of Directors to authorize the transactions contemplated hereby and by the other Transaction Documents, and certifying that such documents are true and complete copies of the originals and that such resolutions have not been amended or superseded, it being understood that such Investor may rely on such certificate as a representation and warranty of the Company made herein; (h) the Company shall have obtained provided such Investor with reasonable evidence thereof, and such Investor shall have received an opinion of counsel reasonably satisfactory to such Investor with respect to the written agreement of each Specified Employee validity and priority of the Company to refrain from selling shares of Common Stock for the period specified in, and in accordance with, Section 4.1(k) hereofMortgage; (i) 5.1.9 the Title Company shall have irrevocably agreed to issue the final Title Policy; 5.1.10 there shall have occurred been no material adverse change in the Company’s consolidated business or financial condition since the date of the Company’s most recent audited financial statements contained in the Disclosure Documents, except as set forth in Schedule 3.8; (j) the Common Stock shall be traded on the OTCBB or listed on the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York Stock Exchange; (k) 5.1.11 the Company shall have authorized and reserved for issuance at least one hundred and twenty five percent (125%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Debentures and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Debentures or exercise the Warrants as of such exercisedate); (l) 5.1.12 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby and by the other Transaction Documents; (m) the Company shall have waived any applicable anti-takeover measures under Delaware law or the Company’s charter documents that may be triggered by the actions set forth in the Transaction Documents; (n) the Company and the Investors shall have made filings, if any, required by the Hxxx-Xxxxx-Xxxxxx Anti-Trust Improvements Act, as amended; and (o) 5.1.13 the Company aggregate Purchase Price to be paid by the Investors for all of the Debentures and Warrants to be issued hereunder shall have executed the Escrow Agreementbe at least $20,000,000.

Conditions to Investors. Obligations at the Closing. Each Investor’s obligations to effect the Closing, including without limitation its obligation to purchase Shares a Debenture and Warrants Warrant at the Closing, are conditioned upon the fulfillment (or waiver by such Investor in its sole and absolute discretion) of each of the following events as of the Closing Date, and the Company shall use commercially reasonable efforts to cause each of such conditions to be satisfied: (a) 5.1.1 the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date the Closing Date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all material respects as of that particular date); (b) 5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing; (c) 5.1.3 the Closing Date shall occur on a date that is not later than March 15, 2005; 5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in Section 5.1(a), 5.1(b), 5.1(i), 5.1(j), 5.1(k) and 5.1(l) this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein; (d) the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of the Closing Date, in form and substance reasonably satisfactory to such Investor; (e) the Company shall have delivered to the Escrow Agent the duly executed Warrant being purchased by such Investor and the duly executed Transfer Agent Instruction Letter; (f) the Company shall have executed and delivered to the Investor the Amended and Restated Registration Rights Agreement; (g) 5.1.5 the Company shall have delivered to such Investor a certificate, signed by the Secretary or an Assistant Secretary of the Company, attaching (i) the charter Certificate of Incorporation and By-Laws of the Company, and (ii) resolutions passed by its the Board of Directors to authorize the transactions contemplated hereby and by the other Transaction Documents, and certifying that such documents are true and complete copies of the originals and that such resolutions have not been amended or superseded, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein; (h) 5.1.6 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.6 hereto; 5.1.7 the Company shall have delivered duly executed certificates representing the Debenture and Warrants being purchased by such Investor; 5.1.8 the Company shall have executed and delivered the Registration Rights Agreement; 5.1.9 the Company shall have obtained the written agreement of each Specified Key Employee of the Company to refrain from selling shares of Common Stock for prior to the period specified in, and in accordance with, Section 4.1(k) hereofEffective Date (the “Lock-Up Letters”); (i) 5.1.10 there shall have occurred no material adverse change in the Company’s consolidated business or financial condition since the date of the Company’s most recent audited financial statements contained in the Disclosure Documents, except as set forth in Schedule 3.8; (j) the Common Stock shall be traded on the OTCBB or listed on the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York Stock Exchange; (k) 5.1.11 the Company shall have authorized and reserved for issuance at least one hundred and twenty five percent (125%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Debentures and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Debentures or exercise the Warrants as of such exercisedate); (l) 5.1.12 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby and by the other Transaction Documents; 5.1.13 the Common Stock shall be quoted on the Nasdaq OTC Bulletin Board or the Nasdaq SmallCap Market; and 5.1.14 each holder of shares of the Company’s Series B Preferred Stock shall have waived in writing such holder’s right to include such holder’s shares of Common Stock (mwhether issuable upon conversion of such Series B Preferred Stock, upon exercise of warrants issued in connection with the issuance of such Series B Preferred Stock, or otherwise) in the Registration Statement or otherwise to participate in such registration pursuant to the Registration Rights Agreement of the Conversion Shares and Warrant Shares, and the Company shall have waived any applicable anti-takeover measures under Delaware law or the Company’s charter documents that may be triggered by the actions set forth in the Transaction Documents; (n) the Company and the Investors shall have made filings, if any, required by the Hxxx-Xxxxx-Xxxxxx Anti-Trust Improvements Act, as amended; and (o) the Company shall have executed the Escrow Agreementprovided each Investor a copy of such waiver.

Conditions to Investors. Obligations at the Closing. Each Investor’s obligations to effect the Closing, including without limitation its obligation to purchase Shares and Warrants its Note at the Closing, are conditioned upon the fulfillment (or waiver by such Investor in its sole and absolute discretion) of each of the following events as of the Closing Date, and the Company shall use commercially reasonable efforts to cause each of such conditions to be satisfied: (a) 5.1.1 the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all material respects as of that particular date); (b) 5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing; (c) 5.1.3 the Company shall have executed and delivered to such Investor the Note being purchased by such Investor at the Closing; 5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in Section 5.1(a), 5.1(b), 5.1(i), 5.1(j), 5.1(k) and 5.1(l) have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein; (d) the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of the Closing Date, in form and substance reasonably satisfactory to such Investor; (e) the Company shall have delivered to the Escrow Agent the duly executed Warrant being purchased by such Investor and the duly executed Transfer Agent Instruction Letter; (f) the Company shall have executed and delivered to the Investor the Amended and Restated Registration Rights Agreement; (g) the Company shall have delivered to such Investor a certificate, signed by the Secretary or an Assistant Secretary of the Company, attaching (i) the charter and By-Laws of the Company, and (ii) resolutions passed by its Board of Directors to authorize the transactions contemplated hereby and by the other Transaction Documents, and certifying that such documents are true and complete copies of the originals and that such resolutions have not been amended or superseded, it being understood that such Investor may rely on such certificate as a representation and warranty of the Company made herein; (h) the Company shall have obtained the written agreement of each Specified Employee of the Company to refrain from selling shares of Common Stock for the period specified in, and in accordance with, Section 4.1(k) hereof; (i) 5.1.5 there shall have occurred no material adverse change in the Company’s consolidated business or financial condition since the date of the Company’s most recent financial statements contained in the Disclosure Documents; (j) the Common Stock shall be traded on the OTCBB or listed on the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York Stock Exchange; (k) the Company shall have authorized and reserved for issuance the aggregate number of shares of Common Stock issuable upon exercise of all of the Warrants to be issued at the Closing (such number to be determined without regard to any restriction on such exercise); (l) 5.1.6 there shall be no injunction, restraining order or decree of any nature of any court or Government Governmental Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby and by the other Transaction Documents; (m) 5.1.7 the Company shall have waived any applicable anti-takeover measures under Delaware law or paid the Company’s charter documents that may be triggered by the actions set forth expenses described in the Transaction Documents; (n) the Company and the Investors shall have made filings, if any, required by the Hxxx-Xxxxx-Xxxxxx Anti-Trust Improvements Act, as amended; and (o) the Company shall have executed the Escrow 6.8 of this Agreement.

Conditions to Investors. Obligations at the Closing. Each Investor’s obligations to effect the Closing, including without limitation its obligation to purchase Shares a Debenture and Warrants Warrant at the Closing, are conditioned upon the fulfillment (or waiver by such Investor in its sole and absolute discretion) of each of the following events as of the Closing Date, and the Company shall use commercially reasonable efforts to cause each of such conditions to be satisfied: (a) 5.1.1 the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all material respects as of that particular date); (b) 5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing; (c) 5.1.3 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this Section 5.1(a), 5.1(b), 5.1(i), 5.1(j), 5.1(k) and 5.1(l) 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein; (d) 5.1.4 the Company shall have delivered to such Investor an opinion reasonably acceptable opinions of counsel for the CompanyCompany and of counsel for the Company Subsidiaries, dated as of the Closing Date, in form and substance reasonably satisfactory to such Investor; (e) the Company shall have delivered to the Escrow Agent the duly executed Warrant being purchased by such Investor and the duly executed Transfer Agent Instruction Letter; (f) 5.1.5 the Company shall have executed and delivered to the such Investor the Amended Debenture and Restated the Warrant being purchased by such Investor at the Closing; 5.1.6 the Company shall have executed and delivered to such Investor the Registration Rights Agreement, the Security Agreement and the Subsidiary Guarantee, each Company Subsidiary shall have executed and delivered to such Investor the Security Agreement and the Subsidiary Guarantee, and certificates evidencing the Pledged Securities (as defined in the Security Agreement) shall have been delivered to Imperium Advisers, LLC, as collateral agent; (g) 5.1.7 the Company shall have delivered to such Investor a certificate, signed by the Secretary or an Assistant Secretary of the Company, attaching (i) the charter certificate of incorporation and Byby-Laws laws of the Company, Company and (ii) resolutions passed by its Board of Directors to authorize the transactions contemplated hereby and by the other Transaction Documents, and (iii) resolutions passed by the respective boards of directors of the Company Subsidiaries to authorize the transactions contemplated by the Security Agreement and the Subsidiary Guarantee, and certifying that such documents are true and complete copies of the originals and that such resolutions have not been amended or superseded, it being understood that such Investor may rely on such certificate as a representation and warranty of the Company made herein; (h) 5.1.8 the Company shall have obtained the written agreement of each Specified Employee of the Company Key Employees listed on Schedule 4.2(f) to refrain from selling shares of Common Stock for the period specified in, and in accordance with, Section 4.1(k4.2(f) hereofof this Agreement; (i) 5.1.9 there shall have occurred no material adverse change in the Company’s consolidated business or financial condition since the date of the Company’s most recent financial statements contained in the Disclosure Documents; (j) the Common Stock shall be traded on the OTCBB or listed on the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York Stock Exchange; (k) 5.1.10 the Company shall have authorized and reserved for issuance the aggregate number of shares of Common Stock issuable upon exercise of all of the Warrants required to be issued at the Closing (such number to be determined without regard to any restriction on such exercise)authorized and reserved under Section 4.3; (l) 5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby and by the other Transaction Documents; (m) 5.1.12 the Investors shall have completed their due diligence to their satisfaction; 5.1.13 the Company shall have, or shall have caused Signature to, deliver to the Investors a written consent executed by the Royal Bank of Scotland and the National Westminster Bank that consents to the security interest and Liens being granted by Signature in favor of the Investors under the Security Agreement; and 5.1.14 the Company shall have waived any applicable anti-takeover measures under Delaware law or paid the Company’s charter documents that may be triggered by the actions set forth expenses described in the Transaction Documents; (n) the Company and the Investors shall have made filings, if any, required by the Hxxx-Xxxxx-Xxxxxx Anti-Trust Improvements Act, as amended; and (o) the Company shall have executed the Escrow Section 6.10 of this Agreement.

Conditions to Investors. Obligations at the Closing. Each Investor’s obligations to effect the Closing, including without limitation its obligation to purchase Shares Series B Preferred Shares, the Series A Warrants and the Series B Warrants at the Closing, are conditioned upon the fulfillment (or waiver by such Investor in its sole and absolute discretion) of each of the following events as of the Closing Date, and the Company shall use commercially reasonable efforts to cause each of such conditions to be satisfied: (a) 5.1.1 the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, in which case such representation or warranty shall be true and correct in all material respects as of that particular date); (b) 5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in the Certificate of Designation, this Agreement or the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closingsuch date; (c) 5.1.3 the Company shall have filed the Certificate of Designation with the Secretary of State of the State of Delaware, and delivered to such Investor written evidence of the acceptance of such filing; 5.1.4 the Closing Date shall occur not later than August 23, 2004; 5.1.5 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in Section 5.1(a), 5.1(b), 5.1(i), 5.1(j), 5.1(k) and 5.1(l) this paragraph 5.1 have been fulfilled as of the ClosingClosing Date, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein; (d) the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of the Closing Date, in form and substance reasonably satisfactory to such Investor; (e) the Company shall have delivered to the Escrow Agent the duly executed Warrant being purchased by such Investor and the duly executed Transfer Agent Instruction Letter; (f) the Company shall have executed and delivered to the Investor the Amended and Restated Registration Rights Agreement; (g) 5.1.6 the Company shall have delivered to such Investor a certificate, signed by the Secretary or an Assistant Secretary of the Company, attaching (i) the charter Certificate of Incorporation and By-Laws of the Company, and (ii) resolutions passed by its Board of Directors to authorize the transactions contemplated hereby and by the other Transaction Documents, and certifying that such documents are true and complete copies of the originals and that such resolutions have not been amended or superseded, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein; (h) 5.1.7 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of the Closing Date, in form and substance reasonably satisfactory to such Investor; 5.1.8 the Company shall have delivered to such Investor duly executed Series A Warrants and Series B Warrants and certificates representing the Series B Preferred Shares being purchased by such Investor at the Closing; 5.1.9 the Company shall have executed and delivered to such Investor the Registration Rights Agreement; 5.1.10 the Company shall have obtained the written agreement of each Specified Key Employee of the Company to refrain from selling shares of Common Stock for (or engaging in any arrangement or transaction that has substantially the same economic effect as selling shares of Common Stock) during the period specified in, beginning on the Execution Date and in accordance with, Section 4.1(k) hereof; ending on the earlier to occur of (i) six months following the Closing Date and (ii) the Effective Date other than, in any such case, pursuant to any 10b-5(1) trading plans in effect as of the Execution Date and disclosed to each Investor in writing; provided, however, that in the event that the employment of any Key Employee (other than Xxxxxxx X. Xxxxxxx) is involuntarily terminated by the Company, such Key Employee may, upon the effectiveness of such involuntary termination, be released from such restriction; 5.1.11 there shall have occurred no material adverse change in the Company’s consolidated business or financial condition since the date of the Company’s most recent financial statements contained in the Disclosure Documents; 5.1.12 (ji) the Common Stock shall be listed and actively traded on the OTCBB or listed on the Nasdaq Capital National Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York Stock Exchange; and (kii) the Company shall have authorized and reserved for issuance the aggregate number of shares of Common Stock issuable upon exercise of be in compliance, in all material respects, with each of the Warrants to be issued at the Closing quantitative and qualitative listing standards and requirements (such number to be determined without regard to any restriction on specified compliance periods) of the Nasdaq National Market, and (iii) the Company shall not have received any notice from Nasdaq that the Company may not be in such exercise);compliance; and (l) 5.1.13 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby and or by the other Transaction Documents; (m) the Company shall have waived any applicable anti-takeover measures under Delaware law or the Company’s charter documents that may be triggered by the actions set forth in the Transaction Documents; (n) the Company and the Investors shall have made filings, if any, required by the Hxxx-Xxxxx-Xxxxxx Anti-Trust Improvements Act, as amended; and (o) the Company shall have executed the Escrow Agreement.

Conditions to Investors. Obligations at the Closing. Each Investor’s obligations to effect the Closing, including without limitation its obligation to purchase Shares and Warrants at the Closing, are conditioned upon the fulfillment (or waiver by such Investor in its sole and absolute discretion) of each of the following events as of the Closing Date, and the Company shall use commercially reasonable efforts to cause each of such conditions to be satisfied: (a) 5.1.1 the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date the Closing Date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all material respects as of that particular date); (b) 5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing; (c) 5.1.3 the Closing Date shall occur on a date that is not later than October 5, 2005; 5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the CompanyCompany and dated as of the Closing Date, certifying that the conditions specified in this Section 5.1(a), 5.1(b), 5.1(i), 5.1(j), 5.1(k) and 5.1(l) 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein; (d) 5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of the Closing Date, covering the matters set forth in form and substance reasonably satisfactory to such InvestorExhibit D; (e) 5.1.6 the Company shall have delivered to the Escrow Agent the such Investor duly executed Warrant certificates representing the Shares and the Warrants being purchased by such Investor and at the duly executed Transfer Agent Instruction LetterClosing; (f) 5.1.7 the Company shall have executed and delivered to the Investor the Amended and Restated Registration Rights AgreementAgreement on or prior to the Closing; (g) 5.1.8 the Company shall have delivered to such Investor a certificate, signed by the Secretary or an Assistant Secretary of the CompanyCompany and dated as of the Closing Date, attaching (i) the charter and By-Laws of the Company, and (ii) resolutions passed by its Board of Directors to authorize the transactions contemplated hereby and by the other Transaction Documents, and certifying that such documents are true and complete copies of the originals and that such resolutions have not been amended or superseded, it being understood that such Investor may rely on such certificate as a representation and warranty of the Company made herein; (h) the Company shall have obtained the written agreement of each Specified Employee of the Company to refrain from selling shares of Common Stock for the period specified in, and in accordance with, Section 4.1(k) hereof; (i) 5.1.9 there shall have occurred no material adverse change in the Company’s consolidated business or financial condition since the date of the Company’s most recent financial statements contained in the Disclosure Documents; 5.1.10 the Company shall have obtained on or prior to the Closing the written agreement of each Key Employee to refrain from selling shares of Common Stock until the Effective Date; 5.1.11 (ji) the Common Stock shall be listed and actively traded on the OTCBB or listed on the Nasdaq Capital National Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York Stock Exchange; (kii) the Company shall have authorized and reserved for issuance the aggregate number of shares of Common Stock issuable upon exercise of be in compliance, in all material respects, with each of the Warrants to be issued at the Closing quantitative and qualitative listing standards and requirements (such number to be determined without regard to any restriction on specified compliance periods) of the Nasdaq National Market, and (iii) the Company shall not have received any notice from Nasdaq that the Company may not be in such exercise);compliance; and (l) 5.1.12 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby and by the other Transaction Documents; (m) the Company shall have waived any applicable anti-takeover measures under Delaware law or the Company’s charter documents that may be triggered by the actions set forth in the Transaction Documents; (n) the Company and the Investors shall have made filings, if any, required by the Hxxx-Xxxxx-Xxxxxx Anti-Trust Improvements Act, as amended; and (o) the Company shall have executed the Escrow Agreement.

Conditions to Investors. Obligations at the Closing. Each Investor’s obligations to effect the Closing, including without limitation its obligation to purchase Shares and Warrants Warrant at the Closing, are conditioned upon the fulfillment (or waiver by such Investor in its sole and absolute discretion) of each of the following events as of the Closing Date, and the Company shall use commercially reasonable efforts to cause each of such conditions to be satisfied: (a) 5.1.1 the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all material respects as of that particular date); (b) 5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by the Company on or before the Closing; (c) 5.1.3 the Closing Date shall occur on a date that is not later than September 2, 2005; 5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this Section 5.1(a)5.1.1, 5.1(b)5.1.2, 5.1(i)5.1.10, 5.1(j)5.1.11, 5.1(k) 5.1.12 and 5.1(l) 5.1.13 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein; (d) 5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of the Closing Date, in form and substance reasonably satisfactory to such Investor; (e) 5.1.6 the Company shall have delivered to the Escrow Agent the such Investor duly executed Warrant certificates representing the Shares and the Warrants being purchased by such Investor and the duly executed Transfer Agent Instruction LetterInvestor; (f) 5.1.7 the Company shall have executed and delivered to the Investor the Amended and Restated Registration Rights Agreement; (g) 5.1.8 the Company shall have delivered to such Investor a certificate, signed by the Secretary or an Assistant Secretary of the Company, attaching (i) the charter and By-Laws of the Company, and (ii) resolutions passed by its Board of Directors to authorize the transactions contemplated hereby and by the other Transaction Documents, and certifying that such documents are true and complete copies of the originals and that such resolutions have not been amended or superseded, it being understood that such Investor may rely on such certificate as a representation and warranty of the Company made herein; (h) 5.1.9 the Company shall have obtained the written agreement of each Specified Key Employee of the Company to refrain from selling shares of Common Stock for the period specified in, and in accordance with, Section 4.1(k4.2(h) hereof; (i) 5.1.10 there shall have occurred no material adverse change in the Company’s consolidated business or financial condition since the date of the Company’s most recent financial statements contained in the Disclosure Documents; (j) 5.1.11 the Common Stock shall be traded on the OTCBB or listed on the Nasdaq Capital National Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York Stock Exchange; (k) 5.1.12 the Company shall have authorized and reserved for issuance the aggregate number of shares of Common Stock issuable upon exercise of all of the Warrants to be issued at the Closing (such number to be determined without regard to any restriction on such exercise);; and (l) 5.1.13 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby and by the other Transaction Documents; (m) the Company shall have waived any applicable anti-takeover measures under Delaware law or the Company’s charter documents that may be triggered by the actions set forth in the Transaction Documents; (n) the Company and the Investors shall have made filings, if any, required by the Hxxx-Xxxxx-Xxxxxx Anti-Trust Improvements Act, as amended; and (o) the Company shall have executed the Escrow Agreement.