Conditions to Sellers’ Obligations. The obligations of Sellers under this Agreement are subject to the satisfaction of the following conditions precedent on or before the Closing Date, any one or more of which may be waived (but only in writing) by Sellers (provided, that no such waiver shall be deemed to have cured any breach of any representation, warranty or covenant made in this Agreement):

Sellers’ Warranties. Each Seller severally, and not jointly, hereby represent and warrant to the Company, as to itself, that:

By the execution and delivery of this Agreement, each Seller hereby irrevocably constitutes and appoints Gary C. Evans (in such capacity, the “Sellers’ Representative”) as the true and lawful agent and attorney-in-fact of such Seller with full powers of substitution to act in the name, place and stead of thereof with respect to the performance on behalf of such Seller under the terms and provisions of this Agreement and the Ancillary Documents, as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Seller, if any, as the Sellers’ Representative will deem necessary or appropriate in connection with any of the transactions contemplated under this Agreement or any of the Ancillary Documents, including: # agree upon or compromise any matter related to the calculation of any adjustments to the Purchase Price; # direct the distribution of the Purchase Price among Sellers; # act for Sellers with respect to all indemnification matters referred to in this Agreement, including the right to compromise on behalf of Sellers any indemnification claim made by or against Sellers, if any; # act for Sellers with respect to all post-Closing matters; # terminate, amend or waive any provision of this Agreement; provided, that any such action, if material to the rights and obligations of Sellers in the reasonable judgment of the Sellers’ Representative, will be taken in the same manner with respect to all Sellers unless otherwise agreed by each Seller who is subject to any disparate treatment of a potentially adverse nature; # employ and obtain the advice of legal counsel, accountants and other professional advisors as the Sellers’ Representative, in his or her sole discretion, deems necessary or advisable in the performance of his or her duties as the Sellers’ Representative and to rely on their advice and counsel; # incur and pay expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing; # receive all or any portion of the Purchase Price and to distribute the same to Sellers according to this Agreement; # sign any releases or other documents with respect to and dispute or remedy arising under this Agreement or the Ancillary Documents; and # do or refrain from doing any further act or deed on behalf of Sellers which the Sellers’ Representative deems necessary or appropriate in his or her sole discretion relating to the subject matter of this Agreement as fully and completely as any Seller could do if personally present and acting. The Sellers’ Representative hereby accepts his or her appointment and authorization as the Sellers’ Representative under this Agreement.

Conditions to Obligations of Sellers. The Seller’s obligations to consummate the Exchange Transaction and to perform this Agreement are subject to the fulfillment of all of the following conditions, unless waived by Sellers in writing:

iii.
Conditions Precedent to the Sellers’ Obligations

CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLERS TO CLOSE.

Performance of Agreement. The Sellers shall have performed and observed in all material respects all obligations and conditions to be performed or observed by Sellers under this Agreement at or prior to the Closing.

The Sellers’ Obligations at Closing. At the Closing, in addition to fulfilling the conditions to Closing appearing in Section 8 herein:

Conditions to the Agent’s Obligations. The obligations of the Agent hereunder with respect to a Placement will be subject to the continuing accuracy and completeness of the representations and warranties made by the Company herein (other than those representations and warranties made as of a specified date or time), to the due performance in all material respects by the Company of its obligations hereunder, to the completion by the Agent of a due diligence review satisfactory to it in its reasonable judgment, and to the continuing reasonable satisfaction (or waiver by the Agent in its sole discretion) of the following additional conditions:

The Buyer’s obligations under this Agreement are subject to the satisfaction of each of the following conditions, each of which is material, for the sole benefit of the Buyer and may be waived only in writing by the Buyer: