REQUIRED
TO BE PERFORMED AT OR PRIOR TO THE CLOSING DATE SHALL HAVE BEEN PERFORMED;
(III)
THE DELIVERY BY THE COMPANY TO SUCH PURCHASER OF THE ITEMS SET
FORTH IN SECTION 2.2(A) OF THIS AGREEMENT;
(IV)
THERE SHALL HAVE BEEN NO MATERIAL ADVERSE EFFECT WITH RESPECT TO
THE COMPANY SINCE THE DATE HEREOF;
(V)
THE CERTIFICATE OF DESIGNATION SHALL HAVE BEEN DULY FILED BY THE
COMPANY WITH THE SECRETARY OF STATE OF THE STATE OF DELAWARE IN ACCORDANCE WITH
THE GENERAL CORPORATION LAW OF THE STATE OF DELAWARE, AND EACH PURCHASER SHALL
HAVE RECEIVED EVIDENCE OF SUCH FILING IN FORM AND SUBSTANCE REASONABLY
SATISFACTORY TO EACH PURCHASER.
(VI)
THE COMPANY SHALL HAVE CAUSED ALLEN BEASLEY (THE "PURCHASER
REPRESENTATIVE") TO HAVE BEEN ELECTED OR APPOINTED TO THE BOARD OF DIRECTORS
EFFECTIVE AS OF THE CLOSING.
SUBJECT TO BEING DEEMED ELIGIBLE TO SERVE ON THE
COMPENSATION COMMITTEE OF THE BOARD OF DIRECTORS PURSUANT TO THE COMMITTEE
CHARTER AND APPLICABLE LISTING STANDARDS AND SECURITIES LAW REQUIREMENTS, THE
COMPANY SHALL HAVE CAUSED THE PURCHASER REPRESENTATIVE TO HAVE BEEN APPOINTED AS
A MEMBER OF THE COMPENSATION COMMITTEE OF THE BOARD OF DIRECTORS, AND SUCH
APPOINTMENT SHALL BE IN FULL FORCE AND EFFECT.
(VII)
THE COMPANY AND REDPOINT OMEGA, L.P. SHALL EACH HAVE ENTERED INTO
A MANAGEMENT RIGHTS LETTER IN THE FORM OF EXHIBIT F HERETO;
(VIII)
PROMPTLY FOLLOWING THE DATE HEREOF AND PRIOR TO THE TIME THAT THE
PURCHASER REPRESENTATIVE IS APPOINTED TO THE BOARD OF DIRECTORS, THE COMPANY
SHALL HAVE EXECUTED THE INDEMNIFICATION AGREEMENT WITH THE PURCHASER
REPRESENTATIVE.
(IX)
AS OF THE CLOSING, THE EXECUTION, DELIVERY AND PERFORMANCE OF THE
TRANSACTION DOCUMENTS BY THE COMPANY WILL NOT VIOLATE OR RESULT IN A BREACH OF
THE COMPANY'S ANTI-TAKEOVER MEASURES AND PROVISIONS; AND
(X)
FROM THE DATE HEREOF TO THE CLOSING DATE, TRADING IN THE COMMON
STOCK SHALL NOT HAVE BEEN SUSPENDED BY THE COMMISSION OR THE COMPANY'S PRINCIPAL
TRADING MARKET (EXCEPT FOR ANY SUSPENSION OF TRADING OF LIMITED DURATION AGREED
TO BY THE COMPANY, WHICH SUSPENSION SHALL BE TERMINATED PRIOR TO THE CLOSING),
AND, AT ANY TIME PRIOR TO THE CLOSING DATE, TRADING IN SECURITIES GENERALLY AS
REPORTED BY BLOOMBERG FINANCIAL MARKETS SHALL NOT HAVE BEEN
6
SUSPENDED OR LIMITED, OR MINIMUM PRICES SHALL NOT HAVE BEEN ESTABLISHED ON
SECURITIES WHOSE TRADES ARE REPORTED BY SUCH SERVICE, OR ON ANY TRADING MARKET,
NOR SHALL A BANKING MORATORIUM HAVE BEEN DECLARED EITHER BY THE UNITED STATES OR
NEW YORK STATE AUTHORITIES NOR SHALL THERE HAVE OCCURRED ANY MATERIAL OUTBREAK
OR ESCALATION OF HOSTILITIES OR OTHER NATIONAL OR INTERNATIONAL CALAMITY OF SUCH
MAGNITUDE IN ITS EFFECT ON, OR ANY MATERIAL ADVERSE CHANGE IN, THE FINANCIAL
MARKETS WHICH, IN EACH CASE, MAKES IT IMPRACTICABLE OR INADVISABLE TO PURCHASE
THE PREFERRED STOCK AND THE WARRANTS AT THE CLOSING.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
3.1
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
EXCEPT AS SET
FORTH UNDER THE CORRESPONDING SECTION OF THE DISCLOSURE SCHEDULES DELIVERED TO
EACH PURCHASER CONCURRENTLY HEREWITH (THE "DISCLOSURE SCHEDULES"), WHICH
DISCLOSURE SCHEDULES SHALL BE DEEMED A