SUCH FISCAL
QUARTER;
(III)
WITHIN FIVE (5) DAYS OF THE END OF EACH
MONTH, AN UNAUDITED INCOME STATEMENT AND SCHEDULE AS TO THE SOURCES AND
APPLICATION OF FUNDS AND BALANCE SHEET FOR AND AS OF THE END OF SUCH MONTH, IN
REASONABLE DETAIL AND, WITHIN TEN (10) DAYS OF THE END OF EACH MONTH, ADDITIONAL
SUPPORTING DOCUMENTS AND SCHEDULES REASONABLY REQUESTED BY THE PURCHASER, EACH
PREPARED USING ACCOUNTING POLICIES REASONABLY ACCEPTABLE TO THE PURCHASER;
(IV)
AS SOON AS PRACTICABLE, BUT IN ANY EVENT
FIFTEEN (15) DAYS PRIOR TO THE END OF EACH FISCAL YEAR OR FISCAL QUARTER, AS
APPLICABLE, A BUDGET AND BUSINESS PLAN FOR THE NEXT FISCAL YEAR OR FISCAL
QUARTER, AS APPLICABLE, PREPARED ON A MONTHLY BASIS, INCLUDING BALANCE SHEETS
AND SOURCES AND APPLICATIONS OF FUNDS STATEMENTS FOR SUCH MONTHS AND, AS SOON AS
PREPARED, ANY OTHER BUDGETS OR REVISED BUDGETS PREPARED BY THE COMPANY
(V)
WITH RESPECT TO THE FINANCIAL STATEMENTS
CALLED FOR IN SUBSECTIONS (I), (II) AND (III) OF THIS SECTION 5.4(B), AN
INSTRUMENT EXECUTED BY THE CHIEF FINANCIAL OFFICER OR CHIEF EXECUTIVE OFFICER OF
THE COMPANY AND CERTIFYING THAT SUCH FINANCIALS WERE PREPARED IN ACCORDANCE WITH
GAAP CONSISTENTLY APPLIED WITH PRIOR PRACTICE FOR EARLIER PERIODS (WITH THE
EXCEPTION OF FOOTNOTES THAT MAY BE REQUIRED BY GAAP) AND FAIRLY PRESENT THE
FINANCIAL CONDITION OF THE COMPANY AND ITS RESULTS OF OPERATION FOR THE PERIOD
SPECIFIED, SUBJECT TO YEAR-END AUDIT ADJUSTMENT;
(VI)
A COPY OF EACH REPORT, SCHEDULE, REGISTRATION
STATEMENT AND OTHER DOCUMENT FILED, PUBLISHED, ANNOUNCED OR RECEIVED BY THE
COMPANY PURSUANT TO THE REQUIREMENTS OF FEDERAL OR STATE LAWS, AS APPLICABLE;
AND
(VII)
SUCH OTHER INFORMATION RELATING TO THE FINANCIAL
CONDITION, BUSINESS, PROPERTIES, PERSONNEL, PROSPECTS OR CORPORATE AFFAIRS OF
THE COMPANY AS THE PURCHASER MAY FROM TIME TO TIME REQUEST.
*CONFIDENTIAL TREATMENT REQUESTED
38
The Purchaser will hold any information obtained pursuant to this Section 5.4 in
confidence in accordance with, and will otherwise be subject to, the provisions
of the Confidentiality Agreement (it being understood that the Purchaser shall
be permitted to disclose such information to the extent required by applicable
Requirements of Law or the rules of any applicable securities exchange).
Any
investigation by the Purchaser shall not affect the representations and
warranties of the Company or the conditions to its obligations to consummate the
transactions contemplated by this Agreement.
5.5
NOTICE TO STOCKHOLDERS.
AS SOON AS
PRACTICABLE AFTER THE EXECUTION OF THIS AGREEMENT (BUT IN NO EVENT LATER THAN
THREE (3) DAYS AFTER THE DATE HEREOF), THE COMPANY SHALL (I) MAIL TO ALL OF ITS
STOCKHOLDERS A WRITTEN NOTICE COMPLYING WITH THE NASDAQ VOTING EXCEPTION
PROVISIONS, IN SUCH FORM AS SHALL BE REASONABLY ACCEPTABLE TO THE PURCHASER (THE
"COMPANY STOCKHOLDER NOTICE"), AND (II) MAKE A PUBLIC ANNOUNCEMENT, IN SUCH FORM
AS SHALL BE REASONABLY ACCEPTABLE TO THE PURCHASER, COMPLYING WITH THE NASDAQ
VOTING EXCEPTION PROVISIONS (THE "NASDAQ ANNOUNCEMENT").
ARTICLE 6
OTHER AGREEMENTS
6.1
PREEMPTIVE RIGHTS.
DURING THE RESTRICTED
PERIOD, IN THE EVENT THAT THE COMPANY PROPOSES TO SELL OR OTHERWISE ISSUE