Common use of Conditions to Closing Termination Clause in Contracts

Conditions to Closing Termination. (a) The obligations of each of the Investors hereunder are subject to the fulfillment to such Investor’s satisfaction, on or prior to the Closing Date, of the following conditions, any of which may be waived by it (as to itself only): (i) The representations and warranties made by the Company in Section 4 hereof qualified as to materiality shall be true and correct at all times prior to and on the Closing Date, except to the extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be true and correct as of such earlier date, and, the representations and warranties made by the Company in Section 4 hereof not qualified as to materiality shall be true and correct in all material respects at all times prior to and on the Closing Date, except to the extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be true and correct in all material respects as of such earlier date. The Company shall have performed in all material respects all obligations and covenants herein required to be performed by it on or prior to the Closing Date. (ii) The Company shall have obtained any and all consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the transactions contemplated by this Agreement, all of which shall be in full force and effect; provided, however, that this condition shall not require the receipt of any approvals of stockholders which may be contemplated by the Certificate of Designations (including for conversion of shares beyond permitted limits). (iii) The Certificate of Designations shall have been filed with the Secretary of State of Delaware and shall have become effective. (iv) The Company shall have delivered to each Investor one or more certificates representing the Shares acquired by such Investor hereunder, registered in such names as the Investor may have requested. (v) No judgment, writ, order, injunction, award or decree of or by any court, or judge, justice or magistrate, including any bankruptcy court or judge, or any order of or by any governmental authority, shall have been issued, and no action or proceeding shall have been instituted by any governmental authority, enjoining or preventing the consummation of the transactions contemplated hereby. (vi) No stop order or suspension of trading shall have been imposed by Nasdaq, the SEC or any other governmental or regulatory body with respect to public trading in the Common Stock. (b) The obligations of the Company hereunder are subject to the fulfillment to the Company’s satisfaction, on or prior to the Closing Date, of the following conditions, any of which may be waived by it: (i) The representations and warranties made by the Investors in Section 5 hereof shall be true and correct in all material respects when made, and shall be true and correct in all material respects on the Closing Date with the same force and effect as if they had been made on and as of said date. The Investors shall have performed in all material respects all obligations and covenants herein required to be performed by them on or prior to the Closing Date. (ii) The Investors shall have delivered to the Company the certificates representing the Old Shares, in each case accompanied by such executed stock powers or other transfer instruments reasonably requested by the Company. (c) The obligations of the Company, on the one hand, and the Investors, on the other hand, to effect the Closing shall terminate as follows: (i) Upon the mutual written consent of the Company and the Investors; (ii) By the Company if any of the conditions set forth in Section 6(b) shall have become incapable of fulfillment, and shall not have been waived by the Company; (iii) By an Investor (with respect to itself only) if any of the conditions set forth in Section 6(a) shall have become incapable of fulfillment, and shall not have been waived by the Investor; or (iv) By either the Company or any Investor (with respect to itself only) if the Closing has not occurred on or prior to December 31, 2007; provided, however, that, except in the case of clause (i) above, the party seeking to terminate its obligation to effect the Closing shall not then be in breach of any of its representations, warranties, covenants or agreements contained in this Agreement or the other Transaction Documents if such breach has resulted in the circumstances giving rise to such party’s seeking to terminate its obligation to effect the Closing. (d) In the event of termination by the Company or any Investor of its obligations to effect the Closing pursuant to this Section 6, written notice thereof shall forthwith be given to the other Investors and the other Investors shall have the right to terminate their obligations to effect the Closing upon written notice to the Company and the other Investors. Nothing in this Section 6 shall be deemed to release any party from any liability for any breach by such party of the terms and provisions of this Agreement or to impair the right of any party to compel specific performance by any other party of its obligations under this Agreement.

Conditions to Closing Termination. (a) The obligations of each of the Investors hereunder are subject to the fulfillment to such Investor’s satisfaction, on or prior to the Closing Date, of the following conditions, any of which may be waived by it (as to itself only): (i) The representations and warranties made by the Company in Section 4 6 hereof qualified as to materiality shall be true and correct at all times prior to and on the Closing Date, except to the extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be true and correct as of such earlier date, and, the representations and warranties made by the Company in Section 4 hereof not qualified as to materiality shall be true and correct in all material respects at all times prior to and on the Closing Date, except to the extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be true and correct in all material respects as of such earlier daterespects. The Company shall have performed in all material respects all obligations and covenants herein required to be performed by it on or prior to as of the Closing Date. (ii) The Company shall have obtained any and all consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the transactions contemplated by this Agreement, including but not limited to the delisting of the Company’s Common Stock from The Nasdaq Global Market exchange, all of which shall be in full force and effect; provided, however, that this condition shall not require the receipt of any approvals of stockholders which may be contemplated by the Certificate of Designations (including for conversion of shares beyond permitted limits). (iii) The Certificate of Designations shall have been filed with the Secretary of State of Delaware and shall have become effective. (iv) The Company shall have delivered to each Investor one or more certificates representing the Shares shares of Series B Preferred Stock acquired by such Investor hereunder, registered in such names as the Investor may have requested. (v) The Company shall have delivered to each Guarantor one or more warrant certificates representing the Warrant or Warrants acquired by such Guarantor hereunder, registered in such names as the Guarantor may have requested. (vi) The Company and the Lender shall have entered into an amendment to the Credit Agreement, which, among other things, provides a waiver and forbearance of certain defaults under the Credit Agreement, a consent to the transactions contemplated herein and for the establishment of the Tranche, in form and substance reasonably acceptable to the Investors and the Lender shall contemporaneously with the Closing disburse the balance of proceeds from the Tranche, after deduction of certain amounts set forth in a settlement statement provided by Lender and agreed to by the Company. (vii) No judgment, writ, order, injunction, award or decree of or by any court, or judge, justice or magistrate, including any bankruptcy court or judge, magistrate or any order of or by any governmental authority, shall have been issued, and no action or proceeding shall have been instituted by any governmental authority, enjoining or preventing the consummation of the transactions contemplated hereby. (viviii) No stop order or suspension of trading The Company shall have been imposed satisfied its obligations under the letter agreement with the Guarantors of even date herewith regarding the appointment of two additional directors to the Board designated by Nasdaq, the SEC or any other governmental or regulatory body Guarantors. (ix) The Company shall have caused its legal counsel to deliver to the Investors a legal opinion in form and substance reasonably acceptable to the Investors with respect to public trading in the Common Series B Preferred Stock, the Warrants and the Series C Preferred Stock. (b) The obligations of the Company hereunder are subject to the fulfillment to the Company’s satisfaction, on or prior to the Closing Date, of the following conditions, any of which may be waived by it: (i) The representations and warranties made by the Investors and Guarantors in Section 5 7 hereof shall be true and correct in all material respects when made, and shall be true and correct in all material respects on the Closing Date with the same force and effect as if they had been made on and as of said dateDate. The Investors and Guarantors shall have performed in all material respects all obligations and covenants herein required to be performed by them on or prior to as of the Closing Date. (ii) The Investors shall have delivered to the Company the certificates representing the Old Sharesshares of Series A Preferred Stock to be exchanged hereunder, in each case accompanied by such executed stock powers or other transfer instruments reasonably requested by the Company. (iii) The Guarantors shall have delivered to Lender, with a copy to the Company, an executed copy of the form of Guaranty attached hereto as Exhibit C and shall have provided the Deposit to the Lender in accordance with the Guaranty. (iv) The Company shall have obtained the written consent of the holders of a majority of the Series A Preferred Stock consenting to the issuance of the Series B Preferred Stock, the amendment to the terms of the Series A Preferred Stock and the amendment to the Registration Rights Agreement, as contemplated herein. (v) The Company shall have received (1) an executed copy from Lender of an amendment to the Credit Agreement, which, among other things, provides a waiver and forbearance of certain defaults under the Credit Agreement, a consent to the transactions contemplated herein and for the establishment of the Tranche and (2) a disbursement from Lender of the balance of proceeds from the Tranche, after deduction of certain amounts set forth in a settlement statement provided by Lender and agreed to by the Company. (c) The obligations of the Company, on the one hand, and the Investors, on the other hand, to effect the Closing shall terminate as follows: (i) Upon the mutual written consent of the Company and the Investors; (ii) By the Company if any of the conditions set forth in Section 6(b8(b) shall have become incapable of fulfillment, and shall not have been waived by the Company;; or (iii) By an Investor (with respect to itself only) if any of the conditions set forth in Section 6(a8(a) shall have become incapable of fulfillment, and shall not have been waived by the Investor; or (iv) By either the Company or any Investor (with respect to itself only) if the Closing has not occurred on or prior to December 31, 2007; provided, however, that, except in the case of clause (i) above, the party seeking to terminate its obligation to effect the Closing shall not then be in breach of any of its representations, warranties, covenants or agreements contained in this Agreement or the other Transaction Documents documents contemplated hereby if such breach has resulted in the circumstances giving rise to such party’s seeking to terminate its obligation to effect the Closing. (d) In the event of termination by the Company or any Investor of its obligations to effect the Closing pursuant to this Section 68, written notice thereof shall forthwith be given to the other Investors and the other Investors shall have the right to terminate their obligations to effect the Closing upon written notice to the Company and the other Investors. Nothing in this Section 6 shall be deemed to release any party from any liability for any breach by such party of the terms and provisions of this Agreement or to impair the right of any party to compel specific performance by any other party of its obligations under this Agreement.

Conditions to Closing Termination. (a) The obligations of each of the Investors hereunder are subject to the fulfillment to such Investor’s satisfaction, on or prior to the Closing Date, of the following conditions, any of which may be waived by it (as to itself only): (i) The representations and warranties made by the Company in Section 4 9 hereof qualified as to materiality shall be true and correct at all times prior to and on the Closing Date, except to the extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be true and correct as of such earlier date, and, the representations and warranties made by the Company in Section 4 9 hereof not qualified as to materiality shall be true and correct in all material respects at all times prior to and on the Closing Date, except to the extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be true and correct in all material respects as of such earlier date. The Company shall have performed in all material respects all obligations and covenants herein required to be performed by it on or prior to the Closing Date. (ii) The Company shall have obtained any and all consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the transactions contemplated by this Agreementthe Transaction Documents, all of which shall be in full force and effect; provided, however, that this condition shall not require the receipt of any approvals of stockholders which may be contemplated by the Certificate of Designations (including for conversion of shares beyond permitted limits). (iii) The Certificate of Designations Company shall have been filed with executed and delivered the Secretary of State of Delaware New Registration Rights Agreement and shall have become effectivethe Security Agreement. (iv) The Company shall have delivered to each Investor one or more certificates representing paid the Shares acquired by such Investor hereunder, registered in such names Amendment Fee as the Investor may have requestedprovided herein. (v) The Company shall have repurchased the Repurchased Shares and the Repurchased Warrants as provided herein. (vi) No judgment, writ, order, injunction, award or decree of or by any court, or judge, justice or magistrate, including any bankruptcy court or judge, or any order of or by any governmental authority, shall have been issued, and no action or proceeding shall have been instituted by any governmental authority, enjoining or preventing the consummation of the transactions contemplated herebyhereby or by the other Transaction Documents. (vivii) No stop order or suspension of trading shall have been imposed by Nasdaq, the SEC Commission or any other governmental or regulatory body with respect to public trading in the Common Stock. (b) The obligations of the Company hereunder are subject to the fulfillment to the Company’s satisfaction, on or prior to the Closing Date, of the following conditions, any of which may be waived by it: (i) The representations and warranties made by the Investors in Section 5 10 hereof shall be true and correct in all material respects when made, and shall be true and correct in all material respects on the Closing Date with the same force and effect as if they had been made on and as of said date. The Investors shall have performed in all material respects all obligations and covenants herein required to be performed by them on or prior to the Closing Date. (ii) The Investors party thereto shall have executed and delivered the New Registration Rights Agreement. (iii) The Investors shall have delivered to the Company (i) the certificates representing the Old SharesRepurchased Shares and (ii) the Repurchased Warrants, in each case accompanied by such executed stock powers or other transfer instruments documents reasonably requested by the Company. (c) The obligations of the Company, on the one hand, and the Investors, on the other hand, to effect the Closing shall terminate as follows: (i) Upon the mutual written consent of the Company and the Investors; (ii) By the Company if any of the conditions set forth in Section 6(b11(b) shall have become incapable of fulfillment, and shall not have been waived by the Company; (iii) By an Investor (with respect to itself only) if any of the conditions set forth in Section 6(a11(a) shall have become incapable of fulfillment, and shall not have been waived by the Investor; or (iv) By either the Company or any Investor (with respect to itself only) if the Closing has not occurred on or prior to December 31August 20, 2007; provided, however, that, except in the case of clause (i) above, the party seeking to terminate its obligation to effect the Closing shall not then be in breach of any of its representations, warranties, covenants or agreements contained in this Agreement or the other Transaction Documents if such breach has resulted in the circumstances giving rise to such party’s seeking to terminate its obligation to effect the Closing. (d) In the event of termination by the Company or any Investor of its obligations to effect the Closing pursuant to this Section 611, written notice thereof shall forthwith be given to the other Investors and the other Investors shall have the right to terminate their obligations to effect the Closing upon written notice to the Company and the other Investors. Nothing in this Section 6 11 shall be deemed to release any party from any liability for any breach by such party of the terms and provisions of this Agreement or the other Transaction Documents or to impair the right of any party to compel specific performance by any other party of its obligations under this AgreementAgreement or the other Transaction Documents.

Conditions to Closing Termination. (a) The obligations of each of the Investors hereunder are subject to the fulfillment to such Investor’s satisfaction, on or prior to the Closing Date, of the following conditions, any of which may be waived by it (as to itself only): (i) The representations and warranties made by the Company in Section 4 hereof qualified as to materiality shall be true and correct at all times prior to and on the Closing Date, except to the extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be true and correct as of such earlier date, and, the representations and warranties made by the Company in Section 4 hereof not qualified as to materiality shall be true and correct in all material respects at all times prior to and on the Closing Date, except to the extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be true and correct in all material respects as of such earlier date. The Company shall have performed in all material respects all obligations and covenants herein required to be performed by it on or prior to the Closing Date. (ii) The Company shall have obtained any and all consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the transactions contemplated by this Agreement, all of which shall be in full force and effect; provided, however, that this condition shall not require the receipt of any approvals of stockholders which may be contemplated by the Certificate of Designations (including for conversion of shares beyond permitted limits). (iii) The Certificate of Designations Designation shall have been filed with the Secretary of State of Delaware Minnesota and shall have become effective. (iv) The Company shall have delivered to each Investor one or more certificates representing the New Shares acquired by such Investor hereunder, registered in such names as the Investor may have requested, and bearing the same restrictive legend as the Old Shares. (v) No judgment, writ, order, injunction, award or decree of or by any court, or judge, justice or magistrate, including any bankruptcy court or judge, or any order of or by any governmental authority, shall have been issued, and no action or proceeding shall have been instituted by any governmental authority, enjoining or preventing the consummation of the transactions contemplated hereby. (vi) No stop order or suspension of trading shall have been imposed by Nasdaq, the SEC or any other governmental or regulatory body with respect to public trading in the Common Stock. (b) The obligations of the Company hereunder are subject to the fulfillment to the Company’s satisfaction, on or prior to the Closing Date, of the following conditions, any of which may be waived by it: (i) The representations and warranties made by the Investors in Section 5 hereof shall be true and correct in all material respects when made, and shall be true and correct in all material respects on the Closing Date with the same force and effect as if they had been made on and as of said date. The Investors shall have performed in all material respects all obligations and covenants herein required to be performed by them on or prior to the Closing Date. (ii) The Investors shall have delivered to the Company the certificates representing the Old SharesShares to be exchanged hereunder, accompanied by appropriate stock powers executed in blank (without medallion signature guarantees), or, in each case accompanied by such executed stock powers or other transfer instruments reasonably requested by the Companyevent of a lost certificate, a customary indemnification agreement. (c) The obligations of the Company, on the one hand, and the Investors, on the other hand, to effect the Closing shall terminate as follows: (i) Upon the mutual written consent of the Company and the Investors; (ii) By the Company if any of the conditions set forth in Section 6(b) shall have become incapable of fulfillment, and shall not have been waived by the Company; (iii) By an Investor (with respect to itself only) if any of the conditions set forth in Section 6(a) shall have become incapable of fulfillment, and shall not have been waived by the Investor; or (iv) By either the Company or any Investor (with respect to itself only) if the Closing has not occurred on or prior to December 31March 20, 20072015; provided, however, that, except in the case of clause (i) above, the party seeking to terminate its obligation to effect the Closing shall not then be in breach of any of its representations, warranties, covenants or agreements contained in this Agreement or the other Transaction Documents if such breach has resulted in the circumstances giving rise to such party’s seeking to terminate its obligation to effect the Closing. (d) In the event of termination by the Company or any Investor of its obligations to effect the Closing pursuant to this Section 6, written notice thereof shall forthwith be given to the other Investors and the other Investors shall have the right to terminate their obligations to effect the Closing upon written notice to the Company and the other Investors. Nothing in this Section 6 shall be deemed to release any party from any liability for any breach by such party of the terms and provisions of this Agreement or to impair the right of any party to compel specific performance by any other party of its obligations under this Agreement.