Common use of Conditions to the Investor’s Obligations at Closing Clause in Contracts

Conditions to the Investor’s Obligations at Closing. The obligation of the Investor hereunder to tender the Series A Preferred Shares to the Company for redemption and exchange at the Closing is subject to the satisfaction, at or before the Closing Date, of each of the following conditions, provided that these conditions are for the Investor's sole benefit and may be waived by the Investor at any time in its sole discretion by providing the Company with prior written notice thereof: a. The Company shall have executed each of the Transaction Documents and delivered the same to the Investor. b. Each of the Certificates of Designations shall have been filed with the Secretary of State of the State of Delaware, and a copy of each certified by the Secretary of State of the State of Delaware shall have been delivered to the Investor. c. The Company shall have delivered to the Investor the Redemption Price for the number of Series A Preferred Shares being redeemed by the Company from the Investor (as set forth in Section 1(a)) on the Closing Date, by wire transfer of immediately available funds pursuant to the wire instructions provided by the Investor. d. The Company shall have executed and delivered to the Investor (i) the stock certificates (in such denominations as the Investor shall request) for the Common Shares being issued in exchange for the Investor's Series A Preferred Shares (as set forth in Section 1(b)) at the Closing, and (ii) the stock certificates (in such denominations as the Investor shall request) for the Preferred Shares being issued in exchange for the Investor's Series A Preferred Shares (as set forth in Section 1(b)) at the Closing. e. The Common Stock (x) shall be designated for quotation or listed on the Principal Market and (y) shall not have been suspended by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC have been threatened in writing by the SEC; and the Common Shares and the Conversion Shares issuable upon conversion of the Preferred Shares shall be listed upon the Principal Market. f. The representations and warranties of the Company shall be true and correct as of the date when made and as of the Closing Date as though made at that time (except for representations and warranties that speak as of a specific date other than the representation contained in Section 3(c) which shall be updated as of the Closing Date), other than the representation made in the second sentence of Section 3(c), which representation shall be true and correct in all material respects as of the Closing Date as though made at that time, and the Company shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Closing Date. The Investor shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by the Investor, including, without limitation, an update as of the Closing Date regarding the representation contained in Section 3(c) above. g. The Investor shall have received the opinion of Xxxx and Xxxx LLP, dated as of the Closing Date, in the form of Exhibit F attached --------- hereto. h. The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b) above and in a form reasonably acceptable to the Investor, including, without limitation, containing a determination by the Board of Directors of the Company that immediately prior to the Closing the capital of the Company is not impaired (as determined in accordance with Section 160(a)(1) of the Delaware General Corporation Law) and that immediately following the Closing and after giving effect to the redemption of all the shares of the Company's Series A Preferred Stock which the Company redeemed at the Closing, whether from the Investor or from the Other Investors, the capital of the Company would not be impaired (as determined in accordance with Section 160(a)(1) of the Delaware General Corporation Law) (the "Resolutions"). i. As of the Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, (A) at least 125% of that number of shares of Common Stock issuable upon conversion of all the Series B Preferred Shares and the Series C Preferred Shares outstanding immediately following the Closing (without regard to any limitations on conversions, but subject to adjustment pursuant to the Company's covenant set forth in Section 4(d) below) for issuance upon conversion of the such Preferred Shares and (B) at least 1,157,143 of shares of Common Stock for issuance upon conversion of the Series E Preferred Shares (subject to adjustment pursuant to the Company's covenant set forth in Section 4(d) below). j. The Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent. k. The Company shall have delivered to the Investor a certificate evidencing the incorporation and good standing of (i) the Company and each Subsidiary in such entity's state of incorporation or organization issued by the Secretary of State of such state of incorporation or organization, and (ii) the Company in Virginia issued by the Secretary of State of Virginia, each as of a date within ten days of the Closing Date. l. The Company shall have delivered to the Investor a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware as of a date within ten days of the Closing Date. m. The Company shall have delivered to the Investor a secretary's certificate, dated as of the Closing Date, certifying as to (A) the Resolutions, (B) the Certificate of Incorporation and (C) the By-laws, each as in effect at the Closing. n. The Company shall have delivered to the Investor a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Closing Date. o. The Company shall have delivered to the Investor such other documents relating to the transactions contemplated by the Transaction Documents as the Investors or their counsel may reasonably request.

Conditions to the Investor’s Obligations at Closing. The obligation of the Investor hereunder to tender the Series A Preferred Shares to the Company for redemption and exchange at the Closing is subject to the satisfaction, at or before the Closing Date, of each of the following conditions, provided that these conditions are for the Investor's sole benefit and may be waived by the Investor at any time in its sole discretion by providing the Company with prior written notice thereof: a. The Company shall have executed each of the Transaction Documents and delivered the same to the Investor. b. Each of the Certificates The Series B Certificate of Designations shall have been filed with the Secretary of State of the State of Delaware, and a copy of each certified by the Secretary of State of the State of Delaware shall have been delivered to the Investor. c. The Company shall have delivered to the Investor the Redemption Price for the number of Series A Preferred Redemption Shares being redeemed by the Company from the Investor (as set forth in Section 1(a)) on the Closing Date, by wire transfer of immediately available funds pursuant to the wire instructions provided by the InvestorInvestor (and the Company shall have delivered the amounts set forth in Section 4(j) by wire transfer of immediately available funds to the Investor or its designee(s)). d. The Company shall have executed and delivered to the Investor (i) the stock certificates (in such denominations as the Investor shall request) for the Common Shares being issued in exchange for the Investor's Series A Preferred Shares (as set forth in Section 1(b)) at the Closing, and (ii) the stock certificates (in such denominations as the Investor shall request) for the Preferred Shares Shares, in each case being issued in exchange for the Investor's Series A Preferred Shares (as set forth in Section 1(b)) at the Closing. e. The Common Stock (x) shall be designated for quotation or listed on the Principal Market and (y) shall not have been suspended by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC have been threatened in writing by the SEC; and the Common Shares and the Conversion Shares issuable upon conversion of the Preferred Shares shall be listed upon the Principal Market. f. The representations and warranties of the Company shall be true and correct as of the date when made and as of the Closing Date as though made at that time (except for representations and warranties that speak as of a specific date other than the representation contained in Section 3(c) which shall be updated as of the Closing Date), other than the representation made in the second sentence of Section 3(c), which representation shall be true and correct in all material respects as of the Closing Date as though made at that time, and the Company shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Closing Date. The Investor shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by the Investor, including, without limitation, an update as of the Closing Date regarding the representation contained in Section 3(c) above. g. The Investor shall have received the opinion of Xxxx and Xxxx LLP, dated as of the Closing Date, in the form of Exhibit F D attached --------- hereto.. --------- h. The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b) above and in a form reasonably acceptable to the Investor, including, without limitation, containing a determination by the Board of Directors of the Company that immediately prior to the Closing the capital of the Company is not impaired (as determined in accordance with Section 160(a)(1) of the Delaware General Corporation Law) and that immediately following the Closing and after giving effect to the redemption of all the shares of the Company's Series A Preferred Stock which the Company redeemed at the Closing, whether from the Investor or from the Other Investors, the capital of the Company would not be impaired (as determined in accordance with Section 160(a)(1) of the Delaware General Corporation Law) (the "Resolutions"). i. As of the Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, (A) solely for the purpose of effecting the conversion of the Preferred Shares, at least 125% of that number of shares of Common Stock issuable upon conversion of all the Series B Preferred Shares and the Series C Preferred Shares outstanding immediately following the Closing (without regard to any limitations on conversions, but subject to adjustment pursuant to the Company's covenant set forth in Section 4(d) below) for issuance upon conversion of the such Preferred Shares and (B) at least 1,157,143 of shares of Common Stock for issuance upon conversion of the Series E Preferred Shares (subject to adjustment pursuant to the Company's covenant set forth in Section 4(d) below). j. The Irrevocable Transfer Agent Instructions, in the form of Exhibit D C attached hereto, shall have been delivered to and acknowledged in --------- writing by the Company's transfer agent. k. The Company shall have delivered to the Investor a certificate evidencing the incorporation and good standing of (i) the Company and each Subsidiary in such entity's state of incorporation or organization issued by the Secretary of State of such state of incorporation or organization, and (ii) the Company in Virginia issued by the Secretary of State of Virginia, each as of a date within ten days of the Closing Date. l. The Company shall have delivered to the Investor a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware as of a date within ten days of the Closing Date. m. The Company shall have delivered to the Investor a secretary's certificate, dated as of the Closing Date, certifying as to (A) the Resolutions, (B) the Certificate of Incorporation and (C) the By-laws, each as in effect at the Closing. n. The Company shall have delivered to the Investor a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Closing Date. o. The Company shall have delivered to the Investor such other documents relating to the transactions contemplated by the Transaction Documents as the Investors Investor or their counsel may reasonably request.

Conditions to the Investor’s Obligations at Closing. The obligation of the Investor hereunder to tender the Series A Preferred Shares to the Company for redemption and exchange at the Closing is subject to the satisfaction, at or before the Closing Date, of each of the following conditions, provided that these conditions are for the Investor's sole benefit and may be waived by the Investor at any time in its sole discretion by providing the Company with prior written notice thereof: a. The Company shall have executed each of the Transaction Documents and delivered the same to the Investor. b. Each of the Certificates of Designations shall have been filed with the Secretary of State of the State of Delaware, and a copy of each certified by the Secretary of State of the State of Delaware shall have been delivered to the Investor. c. The Company shall have delivered to the Investor the Redemption Price for the number of Series A Preferred Redemption Shares being redeemed by the Company from the Investor (as set forth in Section 1(a)) on the Closing Date, by wire transfer of immediately available funds pursuant to the wire instructions provided by the InvestorInvestor (and the Company shall have delivered the amounts set forth in Section 4(j) by wire transfer of immediately available funds to the Investor or its designee(s)). d. The Company shall have executed and delivered to the Investor (i) the stock certificates (in such denominations as the Investor shall request) for the Common Shares being issued in exchange for the Investor's Series A Preferred Shares (as set forth in Section 1(b)) at the Closing, and (ii) the stock certificates (in such denominations as the Investor shall request) for the Preferred Shares being issued in exchange for the Investor's Series A Preferred Shares (as set forth in Section 1(b)) at the Closing. e. The Common Stock (x) shall be designated for quotation or listed on the Principal Market and (y) shall not have been suspended by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC have been threatened in writing by the SEC; and the Common Shares and the Conversion Shares issuable upon conversion of the Preferred Shares shall be listed upon the Principal Market. f. The representations and warranties of the Company shall be true and correct as of the date when made and as of the Closing Date as though made at that time (except for representations and warranties that speak as of a specific date other than the representation contained in Section 3(c) which shall be updated as of the Closing Date), other than the representation made in the second sentence of Section 3(c), which representation shall be true and correct in all material respects as of the Closing Date as though made at that time, and the Company shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Closing Date. The Investor shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by the Investor, including, without limitation, an update as of the Closing Date regarding the representation contained in Section 3(c) above. g. The Investor shall have received the opinion of Xxxx and Xxxx LLP, dated as of the Closing Date, in the form of Exhibit F attached --------- hereto.. --------- h. The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b) above and in a form reasonably acceptable to the Investor, including, without limitation, containing a determination by the Board of Directors of the Company that immediately prior to the Closing the capital of the Company is not impaired (as determined in accordance with Section 160(a)(1) of the Delaware General Corporation Law) and that immediately following follwoing the Closing and after giving effect to the redemption of all the shares of the Company's Series A Preferred Stock which the Company redeemed at the ClosingClsoing, whether from the Investor or from the Other Investors, the capital of the Company would not be impaired (as determined in accordance with Section 160(a)(1) of the Delaware General Corporation Law) (as (the "Resolutions"). i. As of the Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, (A) solely for the purpose of effecting the conversion of the Preferred Shares, at least 125% of that number of shares of Common Stock issuable upon conversion of all the Series B Preferred Shares and the Series C Preferred Shares outstanding immediately following the Closing (without regard to any limitations on conversions, but subject to adjustment pursuant to the Company's covenant set forth in Section 4(d) below) for issuance upon conversion of the such Preferred Shares and (B) at least 1,157,143 of shares of Common Stock for issuance upon conversion of the Series E Preferred Shares (subject to adjustment pursuant to the Company's covenant set forth in Section 4(d) below). j. The Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto, shall have been delivered to and acknowledged in --------- writing by the Company's transfer agent. k. The Company shall have delivered to the Investor a certificate evidencing the incorporation and good standing of (i) the Company and each Subsidiary in such entity's state of incorporation or organization issued by the Secretary of State of such state of incorporation or organization, and (ii) the Company in Virginia issued by the Secretary of State of Virginia, each as of a date within ten days of the Closing Date. l. The Company shall have delivered to the Investor a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware as of a date within ten days of the Closing Date. m. The Company shall have delivered to the Investor a secretary's certificate, dated as of the Closing Date, certifying as to (A) the Resolutions, (B) the Certificate of Incorporation and (C) the By-laws, each as in effect at the Closing. n. The Company shall have delivered to the Investor a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Closing Date. o. The Company shall have delivered to the Investor such other documents relating to the transactions contemplated by the Transaction Documents as the Investors Investor or their counsel may reasonably request.

Conditions to the Investor’s Obligations at Closing. The obligation of the Investor hereunder Investors to tender purchase the Series A Preferred Shares to the Company for redemption and exchange at the Closing is subject to the satisfaction, at fulfillment or waiver on or before the Closing Date, of each of the following conditions, provided that these conditions are for the Investor's sole benefit and may be waived by the Investor at any time in its sole discretion by providing the Company with prior written notice thereof: a. 6.1 The Company shall have executed each of the Transaction Documents adopt and delivered the same to the Investor. b. Each of the Certificates of Designations shall have been filed file with the Secretary of State of the State of Delaware, and Delaware (i) a copy Certificate of each certified by the Secretary of State Designations of the State of Delaware shall have been delivered to the Investor. c. The Company shall have delivered to the Investor the Redemption Price for the number of Series A Preferred Shares being redeemed by Stock in the Company from form attached as Exhibit C (the Investor “Series A Certificate of Designations”) and (ii) a Certificate of Designations of the Series B Preferred in the form attached as set forth in Section 1(aExhibit D (the “Series B Certificate of Designations” and, together with the Series A Certificate of Designations, the “Certificates of Designations”)) on the Closing Date, by wire transfer of immediately available funds pursuant to the wire instructions provided by the Investor. d. 6.2 The Company shall have executed and delivered to the Registration Rights Agreement and the Investor (i) the stock certificates (in such denominations as the Investor shall request) for the Common Shares being issued in exchange for the Investor's Series A Preferred Shares (as set forth in Section 1(b)) at the Closing, and (ii) the stock certificates (in such denominations as the Investor shall request) for the Preferred Shares being issued in exchange for the Investor's Series A Preferred Shares (as set forth in Section 1(b)) at the ClosingRights Agreement. e. 6.3 The Common Stock (x) shall be designated for quotation or listed on the Principal Market and (y) shall not have been suspended by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC have been threatened in writing by the SEC; and the Common Shares and the Conversion Shares issuable upon conversion of the Preferred Shares shall be listed upon the Principal Market. f. The representations and warranties of the Company shall be true and correct as of the date when made and as of the Closing Date as though made at that time (except for representations and warranties that speak as of a specific date other than the representation contained in Section 3(c) which shall be updated as of the Closing Date), other than the representation made in the second sentence of Section 3(c), which representation shall be true and correct in all material respects as of the Closing Date as though made at that time, and the Company shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Closing Date. The Investor Investors shall have received a certificatefrom Wachtell, executed by the Chief Executive Officer of Lipton, Xxxxx & Xxxx, special counsel for the Company, dated as of the Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by the Investor, including, without limitation, an update as of the Closing Date regarding the representation contained in Section 3(c) above. g. The Investor shall have received the opinion of Xxxx and Xxxx LLPopinion, dated as of the Closing Date, in the form of attached as Exhibit F attached --------- hereto.E. h. The Board of Directors of the Company shall have adopted resolutions consistent 6.4 Simultaneous with Section 3(b) above and in a form reasonably acceptable to the Investor, including, without limitation, containing a determination by the Board of Directors of the Company that immediately prior to the Closing the capital of the Company is not impaired (as determined in accordance with Section 160(a)(1) of the Delaware General Corporation Law) and that immediately following the Closing and after giving effect to the redemption of all the shares of the Company's Series A Preferred Stock which the Company redeemed at the Closing, whether from the Investor or from the Other Investors, the capital of the Company would not be impaired (as determined in accordance with Section 160(a)(1) of the Delaware General Corporation Law) (the "Resolutions"). i. As of the Closing Date, the Company shall have reserved out of its authorized and unissued Common Stockpaid to the Investor Representative a funding fee equal to $3,500,000, (A) at least 125representing 1% of that number the Purchase Price. 6.5 Simultaneous with the Closing, the Company shall have reimbursed the Investors for up to $2,000,000 of shares their reasonable documented out-of-pocket fees and expenses incurred on or before the Closing Date in connection with the execution of Common Stock issuable upon conversion this Agreement and the Registration Rights Agreement and the purchase by the Investors of all the Series B Preferred Shares pursuant to this Agreement. 6.6 The Board shall have taken all actions necessary and appropriate to permit Xx. Xxxxxxx Xxxxxx, Mr. Xxxxx Xxxxx and Xx. Xxxxxx Xxxxxxx to be elected to the Series C Preferred Shares outstanding Board effective immediately upon the delivery of a written consent to such effect to the Investors following the Closing (without regard Closing. The Investors shall have received evidence satisfactory to any limitations on conversions, but subject to adjustment pursuant to the Company's covenant set forth in Section 4(d) below) for issuance upon conversion them of the taking of such Preferred Shares and (B) at least 1,157,143 of shares of Common Stock for issuance upon conversion of the Series E Preferred Shares (subject to adjustment pursuant to the Company's covenant set forth in Section 4(d) below)actions. j. The Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent. k. 6.7 The Company shall have executed and delivered to the Investor Investors a certificate evidencing management rights letter to be agreed upon among the incorporation and good standing of (i) the Company and each Subsidiary in such entity's state of incorporation or organization issued by the Secretary of State of such state of incorporation or organization, and (ii) the Company in Virginia issued by the Secretary of State of Virginia, each as of a date within ten days of the Closing Dateparties. l. The Company shall have delivered to the Investor a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware as of a date within ten days of the Closing Date. m. The Company shall have delivered to the Investor a secretary's certificate, dated as of the Closing Date, certifying as to (A) the Resolutions, (B) the Certificate of Incorporation and (C) the By-laws, each as in effect at the Closing. n. The Company shall have delivered to the Investor a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Closing Date. o. The Company shall have delivered to the Investor such other documents relating to the transactions contemplated by the Transaction Documents as the Investors or their counsel may reasonably request.

Conditions to the Investor’s Obligations at Closing. The obligation of the Investor hereunder to tender exchange the Series A Preferred Exchange Shares to for the Company for redemption and exchange Common Shares at the Closing is subject to the satisfaction, at or before the Closing Date, of each of the following conditions, provided that these conditions are for the Investor's ’s sole benefit and may be waived by the Investor at any time in its sole discretion by providing the Company with prior written notice thereof: a. (a) The Company shall have executed each credited the number of the Transaction Documents and delivered the same Common Shares to the Investor’s balance account with DTC through its Deposit Withdrawal Agent Commission system in accordance with the Investor’s written instructions (which Common Shares shall be free from restrictive legend and from any stop order). b. Each of the Certificates of Designations shall have been filed with the Secretary of State of the State of Delaware, and a copy of each certified by the Secretary of State of the State of Delaware shall have been delivered to the Investor. c. The Company shall have delivered to the Investor the Redemption Price for the number of Series A Preferred Shares being redeemed by the Company from the Investor (as set forth in Section 1(a)b) on the Closing Date, by wire transfer of immediately available funds pursuant to the wire instructions provided by the Investor. d. The Company shall have executed and delivered to the Investor (i) the stock certificates (in such denominations as the Investor shall request) for the Common Shares being issued in exchange for the Investor's Series A Preferred Shares (as set forth in Section 1(b)) at the Closing, and (ii) the stock certificates (in such denominations as the Investor shall request) for the Preferred Shares being issued in exchange for the Investor's Series A Preferred Shares (as set forth in Section 1(b)) at the Closing. e. The Common Stock (x) shall be designated for quotation or listed on the Principal Market and (y) shall not have been suspended by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC have been threatened in writing by the SECMarket; and the Common Shares and the Conversion Shares issuable upon conversion of the Preferred Shares shall be listed upon the Principal Market. f. (c) The representations and warranties of the Company shall be true and correct as of the date when made and as of the Closing Date as though made at that time (except for representations and warranties that speak as of a specific date other than the representation contained in Section 3(c) which shall be updated as of the Closing Date), other than the representation made in the second sentence of Section 3(c), which representation shall be true and correct in all material respects as of the Closing Date as though made at that time, and the Company shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents this Agreement to be performed, satisfied or complied with by the Company at or prior to the Closing Date. The Investor shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by the Investor, including, without limitation, an update as of the Closing Date regarding the representation contained in Section 3(c) above. g. (d) The Investor shall have received the opinion of Xxxx and Xxxx LLP, Xxxxxxx Xxxxxx & Xxxxxxxx LLP dated as of the Closing Date, in the form of Exhibit F A attached --------- hereto. h. The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b(e) above and in a form reasonably acceptable to the Investor, including, without limitation, containing a determination by the Board of Directors of the Company that immediately prior to the Closing the capital of the Company is not impaired (as determined in accordance with Section 160(a)(1) of the Delaware General Corporation Law) and that immediately following the Closing and after giving effect to the redemption of all the shares of the Company's Series A Preferred Stock which the Company redeemed at the Closing, whether from the Investor or from the Other Investors, the capital of the Company would not be impaired (as determined in accordance with Section 160(a)(1) of the Delaware General Corporation Law) (the "Resolutions"). i. As of the Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, (A) at least 125% of that number of shares of Common Stock issuable upon conversion of all the Series B Preferred Shares and the Series C Preferred Shares outstanding immediately following the Closing (without regard to any limitations on conversions, but subject to adjustment pursuant to the Company's covenant set forth in Section 4(d) below) for issuance upon conversion of the such Preferred Shares and (B) at least 1,157,143 of shares of Common Stock for issuance upon conversion of the Series E Preferred Shares (subject to adjustment pursuant to the Company's covenant set forth in Section 4(d) below). j. The Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent. k. The Company shall have delivered to the Investor a certificate evidencing the incorporation and good standing of (i) the Company and each Subsidiary in such entity's state of incorporation or organization issued by the Secretary of State of such state of incorporation or organization, and (ii) the Company in Virginia issued by the Secretary of State of Virginia, each as of a date within ten days of the Closing Date. l. The Company shall have delivered to the Investor a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware as of a date within ten days of the Closing Date. m. The Company shall have delivered to the Investor a secretary's ’s certificate, dated as of the Closing Date, certifying as to (Ai) the Resolutionsresolutions of the Company’s board of directors approving this Agreement and the transactions contemplated thereby, (Bii) the Certificate of Incorporation and (Ciii) the By-laws, each as in effect at the Closing. n. (f) The Company shall have delivered to the Investor a letter from the Company's ’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Closing Date. o. (g) The Company shall have delivered to the Investor such other documents relating to the transactions contemplated by the Transaction Documents as Purchase Agreement shall have been consummated prior to, or shall be consummated concurrently with, the Investors or their counsel may reasonably requestClosing.

Conditions to the Investor’s Obligations at Closing. The obligation of the Investor hereunder to tender the Series A Preferred Shares to the Company for redemption and exchange at the Closing is subject to the satisfaction, at or before the Closing Date, of each of the following conditions, provided that these conditions are for the Investor's sole benefit and may be waived by the Investor at any time in its sole discretion by providing the Company with prior written notice thereof: a. The Company shall have executed each of the Transaction Documents and delivered the same to the Investor. b. Each of the Certificates of Designations shall have been filed with the Secretary of State of the State of Delaware, and a copy of each certified by the Secretary of State of the State of Delaware shall have been delivered to the Investor. c. The Company shall have delivered to the Investor (i) the Fixed Redemption Price for the number of Fixed Series A Preferred Redemption Shares being redeemed by the Company from the Investor and (ii) if the Company delivered a Notice of Additional Redemption in accordance with the terms of Section 1(a), the Additional Redemption Price for the number of Additional Series A Redemption Shares being redeemed by the Company from the Investor (in each case as set forth in Section 1(a)) on the Closing Date, by wire transfer of immediately available funds pursuant to the wire instructions provided by the InvestorInvestor (and the Company shall have delivered the amounts set forth in Section 4(j) by wire transfer of immediately available funds to the Investor or its designee(s)). d. The Company shall have executed and delivered to the Investor (i) the stock certificates (in such denominations as the Investor shall request) for the Common Shares being issued in exchange for the Investor's Series A Preferred Shares (as set forth in Section 1(b)) at the Closing, and (ii) the stock certificates (in such denominations as the Investor shall request) for the Preferred Shares being issued in exchange for the Investor's Series A Preferred Shares (as set forth in Section 1(b)) at the Closing. e. The Common Stock (x) shall be designated for quotation or listed on the Principal Market and (y) shall not have been suspended by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC have been threatened in writing by the SEC; and the Common Shares and the Conversion Shares issuable upon conversion of the Preferred Shares shall be listed upon the Principal Market. f. The representations and warranties of the Company shall be true and correct as of the date when made and as of the Closing Date as though made at that time (except for representations and warranties that speak as of a specific date other than the representation contained in Section 3(c) which shall be updated as of the Closing Date), other than the representation made in the second sentence of Section 3(c), which representation shall be true and correct in all material respects as of the Closing Date as though made at that time, and the Company shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Closing Date. The Investor shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by the Investor, including, without limitation, an update as of the Closing Date regarding the representation contained in Section 3(c) above. g. The Investor shall have received the opinion of Xxxx and Xxxx LLP, dated as of the Closing Date, in the form of Exhibit F E attached --------- hereto.. --------- h. The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b) above and in a form reasonably acceptable to the Investor, including, without limitation, containing a determination by the Board of Directors of the Company that immediately prior to the Closing the capital of the Company is not impaired (as determined in accordance with Section 160(a)(1) of the Delaware General Corporation Law) and that immediately following the Closing and after giving effect to the redemption of all the shares of the Company's Series A Preferred Stock which the Company redeemed at the Closing, whether from the Investor or from the Other Investors, the capital of the Company would not be impaired (as determined in accordance with Section 160(a)(1) of the Delaware General Corporation Law) (the "Resolutions"). i. As of the Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, (A) solely for the purpose of effecting the conversion of the Preferred Shares, at least 125% of that number of shares of Common Stock issuable upon conversion of all the Series B Preferred Shares and the Series C Preferred Shares outstanding immediately following the Closing (without regard to any limitations on conversions, but subject to adjustment pursuant to the Company's covenant set forth in Section 4(d) below) for issuance upon conversion of the such Preferred Shares and (B) at least 1,157,143 of shares of Common Stock for issuance upon conversion of the Series E Preferred Shares (subject to adjustment pursuant to the Company's covenant set forth in Section 4(d) below). j. The Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto, shall have been delivered to and acknowledged in --------- writing by the Company's transfer agent. k. The Company shall have delivered to the Investor a certificate evidencing the incorporation and good standing of (i) the Company and each Subsidiary in such entity's state of incorporation or organization issued by the Secretary of State of such state of incorporation or organization, and (ii) the Company in Virginia issued by the Secretary of State of Virginia, each as of a date within ten days of the Closing Date. l. The Company shall have delivered to the Investor a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware as of a date within ten days of the Closing Date. m. The Company shall have delivered to the Investor a secretary's certificate, dated as of the Closing Date, certifying as to (A) the Resolutions, (B) the Certificate of Incorporation and (C) the By-laws, each as in effect at the Closing. n. The Company shall have delivered to the Investor a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Closing Date. o. The Company shall have delivered to the Investor such other documents relating to the transactions contemplated by the Transaction Documents as the Investors Investor or their counsel may reasonably request.