AFFILIATES OF THE COMPANY SEEKING TO RESTRAIN,
PREVENT OR CHANGE THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY OTHER
TRANSACTION DOCUMENTS, OR SEEKING DAMAGES IN CONNECTION WITH SUCH TRANSACTIONS.
27
(VII)
SUCH OTHER CONDITIONS AS ARE MUTUALLY AGREEABLE BETWEEN THE
PURCHASER AND THE COMPANY.
7.
CONDITIONS TO THE PURCHASER'S OBLIGATION TO PURCHASE ON THE
CLOSING DATES.
(a)
Conditions to the Purchaser's Obligation to Purchase on the
Initial Closing Date.
The obligation of the Purchaser hereunder to purchase the
applicable Preferred Shares from the Company at the Initial Closing is subject
to the satisfaction, at or before the Initial Closing Date, of each of the
following conditions.
These conditions are for the Purchaser's sole benefit and
may be waived by the Purchaser at any time in its sole discretion:
(I)
THE PURCHASER SHALL HAVE RECEIVED A FACSIMILE COPY OF A FORM OF
STOCK CERTIFICATE REPRESENTING THE SERIES A PREFERRED STOCK TO BE ISSUED TO THE
PURCHASER ON THE INITIAL CLOSING DATE, WITH THE ORIGINAL CERTIFICATE HELD IN
TRUST BY COUNSEL FOR THE COMPANY UNTIL DELIVERY THEREOF ON THE FOURTH (4TH)
BUSINESS DAY FOLLOWING THE INITIAL CLOSING.
(II)
THE CERTIFICATE OF DESIGNATIONS SHALL HAVE BEEN FILED WITH THE
SECRETARY OF STATE OF THE STATE OF DELAWARE, AND COPIES THEREOF SHALL HAVE BEEN
CERTIFIED BY SUCH SECRETARY OF STATE SHALL HAVE BEEN DELIVERED TO THE PURCHASER.
(III)
THE REPRESENTATIONS AND WARRANTIES OF THE COMPANY SHALL BE TRUE
AND CORRECT IN ALL MATERIAL RESPECTS AS OF THE DATE WHEN MADE AND AS OF THE
INITIAL CLOSING DATE (BOTH BEFORE AND AFTER GIVING EFFECT TO THE INITIAL
CLOSING) AS THOUGH MADE AT THAT TIME (EXCEPT TO THE EXTENT THAT ANY OF SUCH
REPRESENTATIONS AND WARRANTIES IS ALREADY QUALIFIED AS TO MATERIALITY OR
MATERIAL ADVERSE EFFECT IN SECTION 3 ABOVE, IN WHICH CASE, SUCH REPRESENTATIONS
AND WARRANTIES SHALL BE TRUE AND CORRECT IN ALL RESPECTS).
(IV)
THE COMPANY SHALL HAVE PERFORMED, SATISFIED AND COMPLIED IN ALL
MATERIAL RESPECTS WITH THE COVENANTS, AGREEMENTS AND CONDITIONS REQUIRED BY THE
TRANSACTION DOCUMENTS TO BE PERFORMED, SATISFIED OR COMPLIED WITH BY THE COMPANY
AT OR PRIOR TO THE INITIAL CLOSING DATE.
(V)
THE PURCHASER SHALL HAVE RECEIVED A CERTIFICATE, EXECUTED BY BOTH
THE CHIEF EXECUTIVE OFFICER AND CHIEF FINANCIAL OFFICER OF THE COMPANY, DATED AS
OF THE INITIAL CLOSING DATE AND INCLUDING AN UPDATE AS OF SUCH CLOSING DATE,
CERTIFYING AS TO THE MATTERS IN CLAUSES (I) AND (II) OF THE REPRESENTATION
CONTAINED IN SECTION 3(C) AND CERTIFYING AS TO THE SATISFACTION OF SECTIONS
7(B)(III) AND 7(B)(IV) (SUBJECT TO UPDATE OF CLAUSES (I) AND (II) OF
SECTION 3(C)).
(VI)
THE PURCHASER SHALL HAVE RECEIVED THE OPINION OF STRADLING, YOCCA,
CARLSON & RAUTH, COUNSEL TO THE COMPANY, DATED AS OF THE INITIAL CLOSING DATE,
IN FORM, SCOPE AND SUBSTANCE REASONABLY SATISFACTORY TO THE PURCHASER AND IN
SUBSTANTIALLY THE FORM OF EXHIBIT D ATTACHED HERETO.
(VII)
THE COMPANY SHALL HAVE EXECUTED AND DELIVERED TO THE PURCHASER THE
PREFERRED STOCK CERTIFICATES (IN SUCH DENOMINATIONS AS THE PURCHASER SHALL
REQUEST) FOR THE PREFERRED