BY THE COMPANY TO SUCH INVESTOR PURSUANT TO THIS AGREEMENT OR ANY
OTHER TRANSACTION DOCUMENT, OR PURSUANT TO VISITATION OR INSPECTION RIGHTS
GRANTED HEREUNDER OR THEREUNDER ("CONFIDENTIAL INFORMATION").
NOTWITHSTANDING
THE PRECEDING SENTENCE, EACH INVESTOR MAY (A) DISCLOSE CONFIDENTIAL INFORMATION
TO THE EXTENT REQUIRED BY LAW OR GOVERNMENTAL ORDER OR REGULATION, OR WHEN
REQUIRED BY A SUBPOENA OR OTHER PROCESS, PROVIDED THAT SUCH INVESTOR FIRST GIVES
THE COMPANY ADVANCE NOTICE OF SUCH DISCLOSURE AS SOON AS PRACTICABLE, (B)
DISCLOSE CONFIDENTIAL INFORMATION TO THE EXTENT NECESSARY TO ENFORCE THIS
AGREEMENT, (C) DISCLOSE CONFIDENTIAL INFORMATION TO ITS ATTORNEYS, ACCOUNTANTS,
CONSULTANTS AND OTHER PROFESSIONALS TO THE EXTENT NECESSARY TO OBTAIN THEIR
SERVICES IN CONNECTION WITH ITS INVESTMENT IN THE COMPANY, AND (D) DISCLOSE
CONFIDENTIAL INFORMATION AS MAY BE REQUIRED BY ANY PROSPECTIVE PURCHASER OF ANY
SECURITIES FROM SUCH INVESTOR, PROVIDED THAT SUCH PROSPECTIVE PURCHASER SHALL
FIRST EXECUTE A CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT IN FORM ACCEPTABLE
TO COUNSEL FOR THE COMPANY.
AN INVESTOR MAY ALSO DISCLOSE CONFIDENTIAL
INFORMATION TO ANY AFFILIATE OF SUCH INVESTOR PROVIDED THAT THE REQUIREMENTS OF
THIS SUBSECTION SHALL IN TURN BE BINDING ON ANY SUCH AFFILIATE, OR TO A PARTNER,
MEMBER, SHAREHOLDER OR SUBSIDIARY OF SUCH INVESTOR, AND FURTHER PROVIDED THAT
SUCH PARTNER, MEMBER, SHAREHOLDER OR SUBSIDIARY AGREES TO BE BOUND BY THE
PROVISIONS OF THIS SUBSECTION.
13
4.
CONDITIONS TO THE INVESTORS' OBLIGATIONS AT THE CLOSING.
THE
OBLIGATIONS OF THE INVESTORS UNDER SECTION 1 OF THIS AGREEMENT TO PURCHASE THE
SECURITIES AT THE CLOSING ARE SUBJECT TO THE FULFILLMENT ON OR BEFORE SUCH
CLOSING OF EACH OF THE FOLLOWING CONDITIONS UNLESS WAIVED BY THE INVESTORS IN
ACCORDANCE WITH SECTION 7.5 HEREOF:
4.1.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
THE
REPRESENTATIONS AND WARRANTIES OF THE COMPANY CONTAINED IN SECTION 2 SHALL BE
TRUE AND CORRECT ON AND AS OF THE DATE OF THE CLOSING.
4.2.
PERFORMANCE.
THE COMPANY SHALL HAVE PERFORMED AND COMPLIED WITH
ALL AGREEMENTS, OBLIGATIONS AND CONDITIONS CONTAINED IN THIS AGREEMENT THAT ARE
REQUIRED TO BE PERFORMED OR COMPLIED WITH BY IT ON OR BEFORE THE CLOSING.
4.3.
COMPLIANCE CERTIFICATE.
THE PRESIDENT AND CHIEF EXECUTIVE OFFICER
OF THE COMPANY SHALL DELIVER TO THE INVESTORS AT THE
CLOSING A CERTIFICATE
CERTIFYING THAT THE CONDITIONS SPECIFIED IN THIS SECTION 4 HAVE BEEN FULFILLED.
4.4.
CERTIFICATE OF INCORPORATION.
ON OR PRIOR TO THE CLOSING, THE
COMPANY SHALL HAVE FILED WITH THE SECRETARY OF STATE OF THE STATE OF DELAWARE
THE CERTIFICATE OF DESIGNATION IN THE FORM ATTACHED HERETO AS EXHIBIT B WHICH
SHALL CONTINUE TO BE IN FULL FORCE AND EFFECT AS OF THE CLOSING.
4.5.
QUALIFICATIONS.
ALL AUTHORIZATIONS, APPROVALS, CONSENTS OR
PERMITS, IF ANY, OF ANY GOVERNMENTAL AUTHORITY OR REGULATORY BODY OF THE UNITED
STATES OR OF ANY STATE OR OF ANY THIRD PARTY THAT ARE REQUIRED IN CONNECTION
WITH THE LAWFUL ISSUANCE AND SALE OF THE SECURITIES TO THE INVESTORS PURSUANT TO
THIS AGREEMENT OR THAT ARE NECESSARY IN CONNECTION WITH THE EXECUTION OF THIS
AGREEMENT SHALL HAVE BEEN DULY OBTAINED AND SHALL BE EFFECTIVE ON AND AS OF