PRIOR
THERETO SUCH INVESTOR SHALL HAVE EXECUTED A WRITTEN AGREEMENT REGARDING THE
CONFIDENTIALITY AND USE OF SUCH INFORMATION.
THE COMPANY UNDERSTANDS AND
CONFIRMS THAT EACH INVESTOR SHALL BE RELYING ON THE FOREGOING REPRESENTATIONS IN
EFFECTING TRANSACTIONS IN SECURITIES OF THE COMPANY.
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4.9
LISTING OF SECURITIES.
THE COMPANY AGREES,
(I) IF THE COMPANY APPLIES TO HAVE THE COMMON STOCK TRADED ON ANY OTHER TRADING
MARKET, IT WILL INCLUDE IN SUCH APPLICATION THE SHARES, AND WILL TAKE SUCH OTHER
ACTION AS IS NECESSARY OR DESIRABLE TO CAUSE THE SHARES TO BE LISTED ON SUCH
OTHER TRADING MARKET AS PROMPTLY AS POSSIBLE, AND (II) IT WILL TAKE ALL ACTION
REASONABLY NECESSARY TO CONTINUE THE LISTING AND TRADING OF ITS COMMON STOCK ON
A TRADING MARKET AND WILL COMPLY IN ALL MATERIAL RESPECTS WITH THE COMPANY'S
REPORTING, FILING AND OTHER OBLIGATIONS UNDER THE BYLAWS OR RULES OF THE TRADING
MARKET.
4.10
USE OF PROCEEDS.
THE COMPANY WILL USE THE NET
PROCEEDS FROM THE SALE OF THE SECURITIES HEREUNDER FOR GENERAL CORPORATE
PURPOSES.
4.11
LOCK-UP AGREEMENTS.
THE COMPANY WILL USE ITS
COMMERCIALLY REASONABLE EFFORTS TO OBTAIN PRIOR TO THE CLOSING DATE AGREEMENTS
FROM EACH OF HARRY GRUBER, ALLEN GRUBER AND DENNIS BERMAN UNDER WHICH EACH SUCH
INDIVIDUAL SHALL AGREE NOT TO SELL OR OTHERWISE DISPOSE OF SHARES OF COMMON
STOCK OWNED OR CONTROLLED BY HIM DURING THE PERIOD COMMENCING ON THE CLOSING
DATE AND ENDING ON THE LATER TO OCCUR OF (I) AUGUST 31, 2004 AND (II) THE
EFFECTIVE DATE (AS THAT TERM IS DEFINED IN THE REGISTRATION RIGHTS AGREEMENT).
ARTICLE V.
CONDITIONS PRECEDENT TO CLOSING
5.1
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF
THE INVESTORS TO PURCHASE SECURITIES.
THE OBLIGATION OF EACH INVESTOR TO
ACQUIRE SECURITIES AT THE CLOSING IS SUBJECT TO THE SATISFACTION OR WAIVER BY
SUCH INVESTOR, 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 IN ALL MATERIAL RESPECTS AS OF THE DATE WHEN MADE AND AS OF THE CLOSING
AS THOUGH MADE ON AND AS OF SUCH DATE, EXCEPT THAT REPRESENTATIONS AND
WARRANTIES THAT ARE QUALIFIED BY MATERIALITY 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 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 GOVERNMENTAL AUTHORITY
OF COMPETENT JURISDICTION THAT PROHIBITS THE CONSUMMATION OF ANY OF THE
TRANSACTIONS CONTEMPLATED BY THE TRANSACTION DOCUMENTS;
(D)
ADVERSE CHANGES.
SINCE THE DATE OF
EXECUTION OF THIS AGREEMENT, NO EVENT OR SERIES OF EVENTS SHALL HAVE OCCURRED
THAT REASONABLY COULD HAVE OR RESULT IN A MATERIAL ADVERSE EFFECT;
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