COMPLIED WITH BY DIGITAL RIVER AT OR PRIOR TO THE CLOSING DATE.
5.4
THE COMPANY SHALL HAVE FILED THE CERTIFICATE OF DESIGNATIONS WITH
THE SECRETARY OF STATE OF THE STATE OF DELAWARE.
ARTICLE VI
CONDITIONS TO DIGITAL RIVER'S OBLIGATION TO PURCHASE.
The obligation of Digital River hereunder to purchase the Shares is subject to
the satisfaction, at or before the Closing Date, of each of the following
conditions, provided that these conditions are for Digital River's sole benefit
and may be waived by Digital River at any time in its sole discretion by
providing the Company with prior written notice thereof:
6.1
THE COMPANY SHALL HAVE EXECUTED AND DELIVERED TO DIGITAL RIVER
EACH OF THE TRANSACTION DOCUMENTS.
6.2
DIGITAL RIVER SHALL HAVE RECEIVED THE OPINION OF THE COMPANY'S
COUNSEL DATED AS OF THE CLOSING DATE, IN SUBSTANTIALLY THE FORM ATTACHED HERETO
AS EXHIBIT E.
6.3
THE REPRESENTATIONS AND WARRANTIES OF THE COMPANY SHALL BE TRUE
AND CORRECT AS OF THE DATE WHEN MADE AND AS OF THE CLOSING DATE AS THOUGH MADE
AT THAT TIME (EXCEPT FOR REPRESENTATIONS AND WARRANTIES THAT REFERENCE A
SPECIFIC DATE WHICH SHALL HAVE BEEN TRUE AND CORRECT IN ALL MATERIAL RESPECTS AS
OF SUCH DATE) AND THE COMPANY SHALL HAVE PERFORMED, SATISFIED AND COMPLIED IN
ALL 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 CLOSING DATE.
8
6.4
THE COMPANY SHALL HAVE FILED THE CERTIFICATE OF DESIGNATIONS WITH
THE SECRETARY OF STATE OF THE STATE OF DELAWARE.
ARTICLE VII
MISCELLANEOUS
7.1
GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, REGARDLESS OF THE LAWS
THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS
THEREOF.
7.2
COUNTERPARTS.
THIS AGREEMENT MAY BE EXECUTED IN TWO OR MORE
IDENTICAL COUNTERPARTS, ALL OF WHICH SHALL BE CONSIDERED ONE AND THE SAME
AGREEMENT AND SHALL BECOME EFFECTIVE WHEN COUNTERPARTS HAVE BEEN SIGNED BY EACH
PARTY AND DELIVERED TO THE OTHER PARTY; PROVIDED THAT A FACSIMILE SIGNATURE
SHALL BE CONSIDERED DUE EXECUTION AND SHALL BE BINDING UPON THE SIGNATORY
THERETO WITH THE SAME FORCE AND EFFECT AS IF THE SIGNATURE WERE AN ORIGINAL, NOT
A FACSIMILE SIGNATURE.
7.3
HEADINGS.
THE HEADINGS OF THIS AGREEMENT ARE FOR CONVENIENCE OF
REFERENCE AND SHALL NOT FORM PART OF, OR AFFECT THE INTERPRETATION OF, THIS
AGREEMENT.
7.4
SEVERABILITY.
IF ANY PROVISION OF THIS AGREEMENT SHALL BE INVALID
OR UNENFORCEABLE IN ANY JURISDICTION, SUCH INVALIDITY OR UNENFORCEABILITY SHALL
NOT AFFECT THE VALIDITY OR ENFORCEABILITY OF THE REMAINDER OF THIS AGREEMENT IN
THAT JURISDICTION OR THE VALIDITY OR ENFORCEABILITY OF ANY PROVISION OF THIS
AGREEMENT IN ANY OTHER JURISDICTION.
7.5
ENTIRE AGREEMENT; AMENDMENTS.
THIS AGREEMENT SUPERSEDES ALL OTHER
PRIOR ORAL OR WRITTEN AGREEMENTS BETWEEN DIGITAL RIVER, THE COMPANY, THEIR
AFFILIATES AND PERSONS ACTING ON THEIR BEHALF WITH RESPECT TO THE MATTERS
DISCUSSED HEREIN, AND THIS AGREEMENT AND THE INSTRUMENTS REFERENCED HEREIN,
TOGETHER WITH THAT