COMMON SHARES
REPRESENTED BY A CERTIFICATE CAN BE SOLD WITHOUT RESTRICTION AS TO THE NUMBER OF
SECURITIES SOLD UNDER RULE 144(K), THE COMPANY WILL PERMIT THE TRANSFER OF THE
SECURITIES OR WARRANT SHARES, AND THE COMPANY'S TRANSFER AGENT WILL ISSUE ONE OR
MORE CERTIFICATES, FREE FROM ANY RESTRICTIVE LEGEND, IN SUCH NAME AND IN SUCH
DENOMINATIONS AS SPECIFIED BY SUCH HOLDER.
NOTWITHSTANDING ANYTHING HEREIN TO
THE CONTRARY, THE SECURITIES OR WARRANT SHARES MAY BE PLEDGED AS COLLATERAL IN
CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LENDING ARRANGEMENT;
PROVIDED, THAT SUCH PLEDGE WILL NOT ALTER THE PROVISIONS OF THIS ARTICLE V WITH
RESPECT TO THE REMOVAL OF RESTRICTIVE LEGENDS.
5.3
ENFORCEMENT OF PROVISION.
THE COMPANY ACKNOWLEDGES THAT A BREACH
BY IT OF ITS OBLIGATIONS HEREUNDER WILL CAUSE IRREPARABLE HARM TO INVESTOR BY
VITIATING THE INTENT AND PURPOSE OF THE TRANSACTION CONTEMPLATED HEREBY.
ACCORDINGLY, THE COMPANY ACKNOWLEDGES THAT THE REMEDY AT LAW FOR A BREACH OF ITS
OBLIGATIONS UNDER THIS ARTICLE V WILL BE INADEQUATE AND AGREES, IN THE EVENT OF
A BREACH OR THREATENED BREACH BY THE COMPANY OF THE PROVISIONS OF THIS SECTION,
THAT INVESTOR WILL BE ENTITLED, IN ADDITION TO ALL OTHER AVAILABLE REMEDIES, TO
AN INJUNCTION RESTRAINING ANY BREACH AND REQUIRING IMMEDIATE TRANSFER OF THE
SECURITIES AND/OR WARRANT SHARES, AS APPLICABLE, WITHOUT THE NECESSITY OF
SHOWING ECONOMIC LOSS AND WITHOUT ANY BOND OR OTHER SECURITY BEING REQUIRED.
ARTICLE VI
CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL
The obligation of the Company to issue and sell the Securities to Investor at
the Closing is subject to the satisfaction by such Investor, on or before the
Closing Date, of each of the following conditions.
These conditions are for the
Company's sole benefit and may be waived by the Company at any time in its sole
discretion:
6.1
INVESTOR WILL HAVE EXECUTED THIS AGREEMENT, THE REGISTRATION
RIGHTS AGREEMENT, THE WARRANT AND THE LICENSE AGREEMENT AND WILL HAVE DELIVERED
THOSE AGREEMENTS TO THE COMPANY.
6.2
INVESTOR WILL HAVE DELIVERED THE PURCHASE PRICE FOR THE SECURITIES
TO THE COMPANY IN ACCORDANCE WITH THIS AGREEMENT.
6.3
THE REPRESENTATIONS AND WARRANTIES OF INVESTOR MUST BE TRUE AND
CORRECT IN ALL MATERIAL RESPECTS AS OF THE CLOSING DATE AS THOUGH MADE AT THAT
TIME (EXCEPT FOR REPRESENTATIONS AND WARRANTIES
11
THAT SPEAK AS OF A SPECIFIC DATE, WHICH REPRESENTATIONS AND WARRANTIES MUST BE
CORRECT AS OF SUCH DATE), AND INVESTOR WILL HAVE PERFORMED AND COMPLIED IN ALL
MATERIAL RESPECTS WITH THE COVENANTS AND CONDITIONS REQUIRED BY THIS AGREEMENT
TO BE PERFORMED OR COMPLIED WITH BY INVESTOR AT OR PRIOR TO THE CLOSING.
6.4
NO STATUTE, RULE, REGULATION, EXECUTIVE ORDER, DECREE, RULING OR
INJUNCTION WILL HAVE BEEN ENACTED, ENTERED, PROMULGATED OR ENDORSED BY OR IN ANY
COURT OR GOVERNMENTAL AUTHORITY OF COMPETENT JURISDICTION OR ANY SELF-REGULATORY
ORGANIZATION HAVING AUTHORITY OVER THE MATTERS CONTEMPLATED HEREBY WHICH
PROHIBITS THE CONSUMMATION OF ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT, THE REGISTRATION RIGHTS AGREEMENT OR THE WARRANT.
ARTICLE VII
CONDITIONS TO THE INVESTOR'S OBLIGATION TO PURCHASE
The