AVAILABLE TO THE
INVESTOR; PROVIDED, FURTHER, THAT A FAILURE TO COMPLY WITH THIS SECTION 3.4
SHALL NOT CONSTITUTE A BREACH OF THIS AGREEMENT OR THE FAILURE OF ANY CONDITION
SET FORTH IN SECTION 1.2 TO BE SATISFIED UNLESS THE UNDERLYING COMPANY MATERIAL
ADVERSE EFFECT OR MATERIAL BREACH WOULD INDEPENDENTLY RESULT IN THE FAILURE OF A
CONDITION SET FORTH IN SECTION 1.2 TO BE SATISFIED.
3.5
ACCESS, INFORMATION AND CONFIDENTIALITY.
(A)
FROM THE SIGNING DATE UNTIL THE DATE WHEN THE INVESTOR HOLDS AN
AMOUNT OF PREFERRED SHARES HAVING AN AGGREGATE LIQUIDATION VALUE OF LESS THAN
10% OF THE PURCHASE PRICE, THE COMPANY WILL PERMIT THE INVESTOR AND ITS AGENTS,
CONSULTANTS, CONTRACTORS AND ADVISORS (X) ACTING THROUGH THE APPROPRIATE FEDERAL
BANKING AGENCY, TO EXAMINE THE CORPORATE BOOKS AND MAKE COPIES THEREOF AND TO
DISCUSS THE AFFAIRS, FINANCES AND ACCOUNTS OF THE COMPANY AND THE COMPANY
SUBSIDIARIES WITH THE PRINCIPAL OFFICERS OF THE COMPANY, ALL UPON REASONABLE
NOTICE AND AT SUCH REASONABLE TIMES AND AS OFTEN AS THE INVESTOR MAY REASONABLY
REQUEST AND (Y) TO REVIEW ANY INFORMATION MATERIAL TO THE INVESTOR'S INVESTMENT
IN THE COMPANY PROVIDED BY THE COMPANY TO ITS APPROPRIATE FEDERAL BANKING
AGENCY. ANY INVESTIGATION PURSUANT TO THIS SECTION 3.5 SHALL BE CONDUCTED DURING
NORMAL BUSINESS HOURS AND IN SUCH MANNER AS NOT TO INTERFERE UNREASONABLY WITH
THE CONDUCT OF THE BUSINESS OF THE COMPANY, AND NOTHING HEREIN SHALL REQUIRE THE
COMPANY OR ANY COMPANY SUBSIDIARY TO DISCLOSE ANY INFORMATION TO THE INVESTOR TO
THE EXTENT (I) PROHIBITED BY APPLICABLE LAW OR REGULATION, OR (II) THAT SUCH
DISCLOSURE WOULD REASONABLY BE
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EXPECTED TO CAUSE A VIOLATION OF ANY AGREEMENT TO WHICH THE COMPANY OR ANY
COMPANY SUBSIDIARY IS A PARTY OR WOULD CAUSE A RISK OF A LOSS OF PRIVILEGE TO
THE COMPANY OR ANY COMPANY SUBSIDIARY (PROVIDED THAT THE COMPANY SHALL USE
COMMERCIALLY REASONABLE EFFORTS TO MAKE APPROPRIATE SUBSTITUTE DISCLOSURE
ARRANGEMENTS UNDER CIRCUMSTANCES WHERE THE RESTRICTIONS IN THIS CLAUSE
(II) APPLY).
(B)
THE INVESTOR WILL USE REASONABLE BEST EFFORTS TO HOLD, AND WILL
USE REASONABLE BEST EFFORTS TO CAUSE ITS AGENTS, CONSULTANTS, CONTRACTORS AND
ADVISORS TO HOLD, IN CONFIDENCE ALL NON-PUBLIC RECORDS, BOOKS, CONTRACTS,
INSTRUMENTS, COMPUTER DATA AND OTHER DATA AND INFORMATION (COLLECTIVELY,
"INFORMATION") CONCERNING THE COMPANY FURNISHED OR MADE AVAILABLE TO IT BY THE
COMPANY OR ITS REPRESENTATIVES PURSUANT TO THIS AGREEMENT (EXCEPT TO THE EXTENT
THAT SUCH INFORMATION CAN BE SHOWN TO HAVE BEEN (I) PREVIOUSLY KNOWN BY SUCH
PARTY ON A NON-CONFIDENTIAL BASIS, (II) IN THE PUBLIC DOMAIN THROUGH NO FAULT OF
SUCH PARTY OR (III) LATER LAWFULLY ACQUIRED FROM OTHER SOURCES BY THE PARTY TO
WHICH IT WAS FURNISHED (AND WITHOUT VIOLATION OF ANY OTHER CONFIDENTIALITY
OBLIGATION)); PROVIDED THAT NOTHING HEREIN SHALL PREVENT THE INVESTOR FROM
DISCLOSING ANY INFORMATION TO THE EXTENT REQUIRED BY APPLICABLE LAWS OR
REGULATIONS OR BY ANY SUBPOENA OR SIMILAR LEGAL PROCESS.
ARTICLE IV
ADDITIONAL AGREEMENTS
4.1
PURCHASE FOR INVESTMENT. THE INVESTOR ACKNOWLEDGES THAT THE
PURCHASED SECURITIES AND THE WARRANT SHARES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT