AND TO DO ALL THINGS NECESSARY, PROPER, OR
ADVISABLE IN ORDER TO CONSUMMATE AND MAKE EFFECTIVE THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT (INCLUDING SATISFACTION, BUT NOT WAIVER, OF THE
CONDITIONS TO EACH CLOSING SET FORTH IN SECTIONS 6(A) AND/OR 6(B) AND SECTIONS
7(B) AND/OR 7(C), AS APPLICABLE; PROVIDED, HOWEVER, THAT NOTHING IN THIS
SECTION 4(A) SHALL BE DEEMED TO REQUIRE THE PURCHASER TO PURCHASE, OR THE
COMPANY TO SELL, THE PREFERRED SHARES UNLESS AND UNTIL THE CONDITIONS SET FORTH
IN SECTIONS 6(A) AND/OR 6(B) AND SECTION 7(B) AND/OR 7(C), RESPECTIVELY, ARE
SATISFIED OR, IN THE SOLE DISCRETION OF THE COMPANY OR PURCHASER, AS THE CASE
MAY BE, WAIVED.
(II)
NOTICES AND CONSENTS.
THE COMPANY WILL GIVE ANY NOTICES TO THIRD
PARTIES AND GOVERNMENTAL ENTITIES AND SHALL USE COMMERCIALLY REASONABLE EFFORTS
TO OBTAIN ANY THIRD PARTY CONSENTS THAT THE PURCHASER MAY REASONABLY REQUEST IN
CONNECTION WITH THE MATTERS REFERRED TO IN SECTION 3(F) HEREOF.
EACH OF THE
PARTIES WILL GIVE ANY NOTICES TO, MAKE ANY FILINGS WITH, AND USE ITS
COMMERCIALLY REASONABLE EFFORTS TO OBTAIN ANY AUTHORIZATIONS, CONSENTS, AND
APPROVALS OF GOVERNMENT ENTITIES IN CONNECTION WITH THE MATTERS REFERRED TO IN
SECTION 3(F) HEREOF.
19
(III)
FULL ACCESS.
THE COMPANY WILL PERMIT REPRESENTATIVES OF THE
PURCHASER TO HAVE REASONABLE ACCESS AT REASONABLE TIMES TO ITS PREMISES,
PROPERTIES, PERSONNEL AND OTHER THIRD PARTIES WHOSE CONSENT IS REQUIRED IN ORDER
TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED HEREBY, AND TO THE BOOKS AND
DOCUMENTS OF OR PERTAINING TO THE COMPANY.
(IV)
NOTICE OF DEVELOPMENTS.
THE COMPANY WILL GIVE PROMPT WRITTEN
NOTICE TO THE PURCHASER OF ANY DEVELOPMENT CAUSING A BREACH OF ANY OF THE
REPRESENTATIONS AND WARRANTIES IN SECTION 3.
THE PURCHASER SHALL GIVE PROMPT
WRITTEN NOTICE TO THE COMPANY OF ANY DEVELOPMENT CAUSING A BREACH OF ANY OF ITS
OWN REPRESENTATIONS AND WARRANTIES IN SECTION 2.
NO DISCLOSURE BY ANY PARTY
PURSUANT TO THIS SECTION 4(A)(IV), HOWEVER, SHALL BE DEEMED TO AMEND OR
SUPPLEMENT THE SCHEDULES HERETO OR TO PREVENT OR CURE ANY MISREPRESENTATION,
BREACH OF WARRANTY, OR BREACH OF COVENANT, UNLESS THE OTHER PARTIES CONSENT TO
THE INCORPORATION OF SUCH AMENDMENT OR SUPPLEMENT OR DISCLOSURE BY CONSUMMATING
THE TRANSACTIONS CONTEMPLATED HEREBY.
(V)
BOARD OF DIRECTORS; INDEMNIFICATION AGREEMENT.
EFFECTIVE UPON THE
INITIAL CLOSING THE COMPANY WILL CAUSE ANN H. LAMONT AND ANDREW ADAMS (OR OTHER
DESIGNEES OF THE PURCHASER) (THE "PURCHASER DESIGNEES") TO BE APPOINTED TO FILL
SUCH VACANCIES.
CONCURRENTLY WITH THE APPOINTMENT OF THE PURCHASER DESIGNEES,
THE COMPANY, THE PURCHASER AND THE PURCHASER DESIGNEES SHALL ENTER INTO AN
INDEMNIFICATION AGREEMENT IN FORM AND SUBSTANCE MUTUALLY AGREEABLE TO THE
PURCHASER AND ITS COUNSEL ON THE ONE HAND, AND THE COMPANY AND ITS COUNSEL, ON
THE OTHER HAND, FOR THE BENEFIT OF THE PURCHASER DESIGNEES (THE "INDEMNIFICATION
AGREEMENT").
IT IS UNDERSTOOD THAT THE APPOINTMENT OF ANDREW ADAMS AS A
DIRECTOR WILL BE SUBJECT TO SATISFACTION OF THE "INDEPENDENT DIRECTOR"
REQUIREMENTS AS SUCH TERM IS DEFINED IN THE RULES AND REGULATIONS PROMULGATED BY
NASDAQ, AS WELL AS ALL LEGAL AND GOVERNANCE REQUIREMENTS REGARDING SERVICE AS