ASSUMES
23
THE DUE AND PUNCTUAL PERFORMANCE AND OBSERVANCE OF EACH AND EVERY COVENANT AND
CONDITION OF THIS AGREEMENT TO BE PERFORMED AND OBSERVED BY THE COMPANY.
(M)
TAX TREATMENT.
THE COMPANY SHALL NOT TREAT THE CONVERTIBLE
PREFERRED STOCK AS "PREFERRED STOCK" FOR PURPOSES OF SECTION 305 OF THE CODE
(AND ANY SIMILAR PROVISION OF STATE OR LOCAL TAX LAW), SHALL PREPARE AND FILE
ALL OF ITS TAX RETURNS ON A BASIS CONSISTENT WITH SUCH TREATMENT, AND SHALL TAKE
NO ACTION AND CAUSE PERSONS UNDER ITS CONTROL TO TAKE NO POSITION INCONSISTENT
WITH SUCH TREATMENT FOR TAX PURPOSES, UNLESS OTHERWISE REQUIRED PURSUANT TO A
"DETERMINATION" WITHIN THE MEANING OF SECTION 1313 OF THE CODE.
SECTION 7.
CONDITIONS TO CLOSING.
(a)
The respective obligations of each Investor to severally
consummate the purchase of the shares of Convertible Preferred Stock at the
Closing as contemplated hereunder are subject to the fulfillment, prior to or on
the Closing Date, of the following conditions:
(I)
THE REPRESENTATIONS AND WARRANTIES OF THE COMPANY IN SECTION 3
SHALL BE TRUE AND CORRECT AS OF THE DATE HEREOF AND AT AND AS OF THE CLOSING
DATE AS IF MADE ON SUCH DATE, PROVIDED, HOWEVER, THAT NOTWITHSTANDING ANYTHING
HEREIN TO THE CONTRARY, THE CONDITION SET FORTH IN THIS SECTION 7(A)(I) SHALL BE
DEEMED TO HAVE BEEN SATISFIED OTHER THAN WITH RESPECT TO SECTION 3(Q)(III) EVEN
IF ANY REPRESENTATIONS AND WARRANTIES OF THE COMPANY ARE NOT SO TRUE AND CORRECT
(WITHOUT GIVING EFFECT TO ANY MATERIALITY OR MATERIAL ADVERSE EFFECT OR SIMILAR
QUALIFIER SET FORTH THEREIN) UNLESS THE FAILURE OF SUCH REPRESENTATIONS AND
WARRANTIES OF THE COMPANY TO BE SO TRUE AND CORRECT, INDIVIDUALLY OR IN THE
AGGREGATE, HAS NOT HAD AND WOULD NOT REASONABLY BE EXPECTED TO HAVE A MATERIAL
ADVERSE EFFECT.
(II)
THE COMPANY SHALL HAVE COMPLIED IN ALL MATERIAL RESPECTS WITH ITS
OBLIGATIONS HEREUNDER THAT ARE REQUIRED TO BE COMPLIED WITH AT OR PRIOR TO THE
CLOSING.
(III)
NO JUDGMENT, INJUNCTION, DECREE OR OTHER LEGAL RESTRAINT SHALL
PROHIBIT OR ENJOIN THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT.
(IV)
SUCH INVESTOR SHALL HAVE OBTAINED ALL NECESSARY REGULATORY
APPROVALS APPLICABLE TO IT OR, IN THE CASE OF A REQUESTING INVESTOR, SUCH
REQUESTING INVESTOR SHALL HAVE RECEIVED WRITTEN CONFIRMATION FROM THE FEDERAL
RESERVE BOARD OF ITS NON-CONTROL DETERMINATION AS TO SUCH REQUESTING INVESTOR;
PROVIDED, HOWEVER, THAT NO SUCH REGULATORY APPROVAL OR NON-CONTROL DETERMINATION
SHALL (A) IMPOSE ANY CONDITION OR REQUIREMENT THAT WOULD REASONABLY BE EXPECTED
TO BE MATERIALLY BURDENSOME TO THE INVESTOR (INCLUDING ANY MATERIAL CONSTRAINTS
OR RESTRICTIONS ON THE REQUESTING INVESTOR'S CURRENT BUSINESS OR INVESTMENTS BUT
EXCLUDING, FOR THE AVOIDANCE OF DOUBT, ANY PASSIVITY COMMITMENTS REQUIRED AS
CONTEMPLATED BY SECTION 6(B)(II)), OR (B) IMPOSE ANY RESTRAINT OR CONDITION ON
ANY LIMITED PARTNER OF THE REQUESTING INVESTOR (INCLUDING A REQUIREMENT TO FILE
ANY APPLICATION OR NOTICE UNDER THE BHC ACT, THE CHANGE IN BANK CONTROL ACT OR
ANY OTHER FEDERAL OR STATE BANKING LAW) (EACH A "BURDENSOME CONDITION"); AND
PROVIDED FURTHER THAT THE IMPOSITION OF A