Section 9.16;
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(m)
The Rights Plan Termination shall have been approved by the
Company's Board of Directors, the Company shall have taken all of the steps
specified in Section 23(c) or Section 23(d) of the Rights Plan, and the Company
shall have entered into a written agreement with the Rights Agent (as defined in
the Rights Plan) providing for the termination of the Rights Plan immediately,
without further action or deed, upon completion of the redemption procedures
specified in Section 23 of the Rights Plan.
8.2.
CONDITIONS TO OBLIGATIONS OF THE COMPANY. THE COMPANY'S OBLIGATION
TO SELL AND ISSUE THE SECURITIES AT CLOSING IS SUBJECT TO THE FULFILLMENT TO THE
SATISFACTION BY THE COMPANY ON OR PRIOR TO THE RELEVANT CLOSING DATE OF THE
FOLLOWING CONDITIONS, ANY OF WHICH MAY BE WAIVED IN WRITING BY THE COMPANY:
(A)
THE REPRESENTATIONS AND WARRANTIES MADE BY THE INVESTORS IN
SECTION 6 HEREOF SHALL BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS WHEN MADE,
AND SHALL BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS ON THE RELEVANT CLOSING
DATE WITH THE SAME FORCE AND EFFECT AS IF THEY HAD BEEN MADE ON AND AS OF SAID
DATE.
(B)
THE INVESTORS SHALL HAVE EXECUTED AND DELIVERED THE REGISTRATION
RIGHTS AGREEMENT TO THE COMPANY.
(C)
EACH OF THE INVESTORS SHALL HAVE DELIVERED TO LEAD INVESTOR
COUNSEL THE "AGGREGATE PURCHASE PRICE" SET FORTH OPPOSITE SUCH INVESTOR'S NAME
ON SCHEDULE I AND SCHEDULE II AFFIXED HERETO.
(D)
NO JUDGMENT, WRIT, ORDER, INJUNCTION, AWARD OR DECREE OF OR BY ANY
COURT, OR JUDGE, JUSTICE OR MAGISTRATE, INCLUDING ANY BANKRUPTCY COURT OR JUDGE,
OR ANY ORDER OF OR BY ANY GOVERNMENTAL AUTHORITY, SHALL HAVE BEEN ISSUED, AND NO
ACTION OR PROCEEDING SHALL HAVE BEEN INSTITUTED BY ANY GOVERNMENTAL AUTHORITY,
OR SELF-REGULATORY ORGANIZATION ENJOINING OR PREVENTING THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED HEREBY OR IN THE OTHER TRANSACTION DOCUMENTS.
9.
COVENANTS AND AGREEMENTS OF THE COMPANY.
9.1.
RESERVATION OF COMMON STOCK.
THE COMPANY SHALL AT ALL TIMES
RESERVE AND KEEP AVAILABLE OUT OF ITS AUTHORIZED BUT UNISSUED SHARES OF COMMON
STOCK, SOLELY FOR THE PURPOSE OF PROVIDING FOR THE CONVERSION OF THE PREFERRED
STOCK AND THE EXERCISE OF THE WARRANTS, SUCH NUMBER OF SHARES OF COMMON STOCK AS
SHALL FROM TIME TO TIME EQUAL THE NUMBER OF SHARES SUFFICIENT TO PERMIT THE
CONVERSION OF THE PREFERRED STOCK AND THE EXERCISE OF THE WARRANTS ISSUED
PURSUANT TO THIS AGREEMENT IN ACCORDANCE WITH THEIR RESPECTIVE TERMS, WITHOUT
REGARD TO ANY EXERCISE LIMITATIONS CONTAINED THEREIN.
9.2.
REPORTS.
THE COMPANY WILL FURNISH TO THE INVESTORS AND/OR THEIR
ASSIGNEES SUCH INFORMATION RELATING TO THE COMPANY AND ITS SUBSIDIARIES AS FROM
TIME TO TIME MAY REASONABLY BE REQUESTED BY ANY INVESTOR AND/OR THEIR ASSIGNEES;
PROVIDED, HOWEVER, THAT THE COMPANY SHALL NOT DISCLOSE MATERIAL NONPUBLIC
INFORMATION TO THE INVESTORS, OR TO ADVISORS TO OR REPRESENTATIVES OF THE
INVESTORS, UNLESS PRIOR TO DISCLOSURE OF SUCH INFORMATION THE COMPANY
27
IDENTIFIES SUCH INFORMATION AS BEING MATERIAL NONPUBLIC INFORMATION AND PROVIDES
THE INVESTORS, SUCH ADVISORS AND REPRESENTATIVES,