THE COMPANY ELECTS TO PERMIT THE PURCHASERS TO VOTE SUCH SHARES IN
THEIR OWN DISCRETION.
THIS SECTION 4.19 SHALL NOT APPLY TO ANY OF THE MATTERS
SET FORTH IN THE LAST SENTENCE OF SECTION 11 OR SECTION 21(D) OF THE CERTIFICATE
OF DESIGNATIONS.
4.20
LOCK-UP.
IF THE COMPANY HAS SELECTED AN
UNDERWRITER IN CONNECTION WITH A PUBLIC OFFERING OF ITS COMMON STOCK, THEN EACH
PURCHASER THAT BENEFICIALLY OWNS GREATER THAN 5% OF THE OUTSTANDING COMMON STOCK
AT SUCH TIME SHALL AGREE TO EXECUTE A LOCK-UP LETTER IN CUSTOMARY FORM
REASONABLY ACCEPTABLE TO SUCH UNDERWRITER, PROVIDED THAT EACH OF THE FOLLOWING
CONDITIONS ARE SATISFIED (I) SUCH UNDERWRITER REQUIRES EACH OTHER SHAREHOLDER OF
THE COMPANY WHO OWNS GREATER THAN 5% OF THE OUTSTANDING COMMON STOCK TO EXECUTE
AN IDENTICAL LOCK-UP LETTER AND (II) SUCH LOCK-UP LETTER SHALL NOT CONTAIN
RESTRICTIONS FOR A PERIOD GREATER THAN 6 MONTHS FOLLOWING SUCH PUBLIC OFFERING.
FOR SUCH PURPOSES, BENEFICIAL OWNERSHIP SHALL BE DETERMINED IN ACCORDANCE WITH
SECTION 13(D) OF THE EXCHANGE ACT AND THE RULES AND REGULATIONS PROMULGATED
THEREUNDER.
ARTICLE V
CONDITIONS
5.1
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF
THE PURCHASERS.
THE OBLIGATION OF EACH PURCHASER TO ACQUIRE THE INITIAL UNITS
AND THE UNIT WARRANTS AT THE CLOSING IS SUBJECT TO THE SATISFACTION OR WAIVER BY
SUCH PURCHASER, 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 AS OF THE DATE WHEN MADE AND AS OF THE CLOSING AS THOUGH MADE ON AND AS
OF SUCH DATE;
(B)
PERFORMANCE.
THE COMPANY AND EACH OTHER
PURCHASER SHALL HAVE PERFORMED, SATISFIED AND COMPLIED IN ALL MATERIAL RESPECTS
WITH ALL COVENANTS, AGREEMENTS AND CONDITIONS REQUIRED BY THE TRANSACTION
DOCUMENTS TO BE PERFORMED, SATISFIED OR COMPLIED WITH BY IT AT OR PRIOR TO THE
CLOSING;
(C)
NO INJUNCTION.
NO STATUTE, RULE,
REGULATION, EXECUTIVE ORDER, DECREE, RULING OR INJUNCTION SHALL HAVE BEEN
ENACTED, ENTERED, PROMULGATED OR ENDORSED BY ANY COURT OR
30
GOVERNMENTAL AUTHORITY OF COMPETENT JURISDICTION THAT PROHIBITS THE CONSUMMATION
OF ANY OF THE TRANSACTIONS CONTEMPLATED BY THE TRANSACTION DOCUMENTS;
(D)
NO SUSPENSIONS OF TRADING IN COMMON STOCK;
LISTING.
THE COMMON STOCK (I) SHALL BE DESIGNATED FOR QUOTATION OR LISTED ON
THE TRADING MARKET AND (II) SHALL NOT HAVE BEEN SUSPENDED BY THE COMMISSION OR
THE TRADING MARKET FROM TRADING ON THE TRADING MARKET NOR SHALL SUSPENSION BY
THE COMMISSION OR THE TRADING MARKET HAVE BEEN THREATENED EITHER (A) IN WRITING
BY THE COMMISSION OR THE TRADING MARKET OR (B) BY FALLING BELOW THE MINIMUM
LISTING MAINTENANCE REQUIREMENTS OF THE TRADING MARKET; AND
(E)
ADVERSE CHANGES.
SINCE THE DATE OF
EXECUTION OF THIS AGREEMENT, NO EVENT OR SERIES OF EVENTS SHALL HAVE OCCURRED
THAT REASONABLY COULD BE EXPECTED TO HAVE OR RESULT IN A MATERIAL ADVERSE
EFFECT.
5.2
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF
THE COMPANY.
THE OBLIGATION OF THE COMPANY TO SELL THE INITIAL UNITS AND THE
UNIT WARRANTS AT THE CLOSING IS SUBJECT TO THE SATISFACTION OR