BY THE COMPANY TO THE BOARD.
THE COMPANY
SHALL BEAR ALL REASONABLE EXPENSES PURSUANT TO THIS SECTION 4.9.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE TRANSACTION DOCUMENTS, ANY
OBSERVER DESIGNATED BY PHOENIX MAY BE EXCLUDED FROM ANY MEETING OF THE BOARD AND
ANY COMMITTEE OF THE BOARD IF NECESSARY, BASED ON A WRITTEN OPINION OF COUNSEL
TO THE COMPANY, TO PROTECT THE ATTORNEY-CLIENT PRIVILEGE.
4.10
CERTAIN OTHER ACTIONS REQUIRING CONSENT.
UNTIL THE EARLIER OCCURRENCE OF
EITHER (I) THE INVESTORS NO LONGER HOLD COMMON SHARES REPRESENTING BOTH (A) AT
LEAST 50% OF THE REGISTRABLE SECURITIES AND (B) AT LEAST 5% OF ALL SHARES OF THE
OUTSTANDING CAPITAL STOCK OF THE COMPANY, OR (II) 24 MONTHS AFTER THE EFFECTIVE
DATE, THE COMPANY SHALL NOT SELL, TRANSFER OR OTHERWISE DISPOSE OF ANY OF ITS
MATERIAL PROPERTIES, ASSETS AND RIGHTS INCLUDING, WITHOUT LIMITATION, ITS
SOFTWARE AND INTELLECTUAL PROPERTY, TO ANY PERSON, EXCEPT FOR SALES TO CUSTOMERS
IN THE ORDINARY COURSE OF BUSINESS, WITHOUT THE CONSENT OF PHOENIX.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, SHARES HELD BY AN ASSIGNEE OF
AN INVESTOR SHALL NOT BE COUNTED IN THE CALCULATION SET FORTH IN THIS SECTION
4.10 AND PHOENIX MAY NOT ASSIGN ITS RIGHTS UNDER THIS SECTION 4.10 EXCEPT TO A
CONTROLLED OR CONTROLLING AFFILIATE OF PHOENIX.
4.11
INFORMATION RIGHTS.
SO LONG AS THE INVESTORS HOLD COMMON SHARES
REPRESENTING (I) AT LEAST 50% OF THE REGISTRABLE SECURITIES AND (II) AT LEAST 5%
OF ALL SHARES OF THE OUTSTANDING CAPITAL STOCK OF THE COMPANY, THE COMPANY SHALL
PROVIDE PHOENIX WITH (A) TRUE AND COMPLETE COPIES OF THE MONTHLY, QUARTERLY AND
YEARLY FINANCIAL STATEMENTS OF THE COMPANY AS SOON AS REASONABLY PRACTICABLE
AFTER THEY BECOME AVAILABLE, BUT IN NO EVENT MORE THAN THIRTY (30) DAYS
FOLLOWING THE END OF EACH CALENDAR MONTH, FORTY-FIVE (45) DAYS FOLLOWING THE END
OF EACH CALENDAR QUARTER, OR NINETY (90) DAYS FOLLOWING THE END OF EACH CALENDAR
YEAR, RESPECTIVELY; AND (B) TRUE AND COMPLETE COPIES OF SUCH OTHER REPORTS AND
UPDATES REGARDING SALES, REVENUES, BACKLOG, PIPELINE AND OTHER OPERATING DATA AS
THE COMPANY'S MANAGEMENT REGULARLY PROVIDES TO ITS BOARD.
PHOENIX MAY SHARE THE
INFORMATION DISCLOSED UNDER THIS SECTION 4.11 WITH OTHER INVESTORS PROVIDED THAT
SUCH INVESTOR HAS PREVIOUSLY ENTERED INTO THIS AGREEMENT OR A CONFIDENTIALITY
AGREEMENT, WHICH ACKNOWLEDGES SUCH INVESTOR'S OBLIGATION TO REFRAIN FROM TRADING
ON THE BASIS OF MATERIAL NON-PUBLIC INFORMATION.
4.12
ADVISORY FEE.
UPON CLOSING, THE COMPANY SHALL PAY TO PHOENIX THE ADVISORY
FEE AS DIRECTED BY PHOENIX.
ARTICLE V
CONDITIONS
5.1
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE INVESTORS.
THE OBLIGATION
OF EACH INVESTOR TO ACQUIRE SECURITIES AT THE CLOSING IS SUBJECT TO THE
SATISFACTION OR WAIVER BY SUCH INVESTOR, AT OR BEFORE THE CLOSING, OF EACH OF
THE FOLLOWING CONDITIONS:
(A)
REPRESENTATIONS AND WARRANTIES.
THE REPRESENTATIONS AND WARRANTIES OF THE
COMPANY CONTAINED HEREIN SHALL BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS
(EXCEPT AS TO THOSE
23
REPRESENTATIONS AND WARRANTIES QUALIFIED BY MATERIALITY) AS OF THE DATE WHEN
MADE AND AS OF THE CLOSING AS THOUGH MADE ON AND