ALL OTHER TAX RETURNS, REPORTS AND
DECLARATIONS REQUIRED BY ANY JURISDICTION TO WHICH IT IS SUBJECT, AND HAS PAID
ALL TAXES AND OTHER GOVERNMENTAL ASSESSMENTS AND CHARGES THAT ARE MATERIAL IN
AMOUNT, SHOWN OR DETERMINED TO BE DUE ON SUCH RETURNS, REPORTS AND DECLARATIONS,
EXCEPT THOSE BEING CONTESTED IN GOOD FAITH AND HAS SET ASIDE ON ITS BOOKS
PROVISION REASONABLY ADEQUATE FOR THE PAYMENT OF ALL TAXES FOR PERIODS
SUBSEQUENT TO THE PERIODS TO WHICH SUCH RETURNS, REPORTS OR DECLARATIONS APPLY.
THERE ARE NO UNPAID TAXES IN ANY MATERIAL AMOUNT CLAIMED TO BE DUE BY THE TAXING
AUTHORITY OF ANY JURISDICTION, AND THE OFFICERS OF THE COMPANY KNOW OF NO BASIS
FOR ANY SUCH CLAIM.
THERE ARE NO ONGOING OR PENDING TAX AUDITS BY ANY TAXING
AUTHORITY AGAINST THE COMPANY.
ARTICLE IV
COVENANTS.
4.1
FORM D AND BLUE SKY.
THE COMPANY AGREES TO FILE A FORM D WITH
RESPECT TO THE SHARES AS REQUIRED UNDER REGULATION D AND TO PROVIDE UPON REQUEST
A COPY THEREOF TO DIGITAL RIVER PROMPTLY AFTER SUCH FILING.
THE COMPANY SHALL,
ON OR BEFORE THE CLOSING DATE, TAKE SUCH ACTION AS THE COMPANY SHALL REASONABLY
DETERMINE IS NECESSARY IN ORDER TO OBTAIN AN EXEMPTION FOR OR TO QUALIFY THE
SHARES FOR SALE TO DIGITAL RIVER PURSUANT TO THIS AGREEMENT UNDER APPLICABLE
SECURITIES OR "BLUE SKY" LAWS OF THE STATES OF THE UNITED STATES, AND SHALL
PROVIDE EVIDENCE OF ANY SUCH ACTION SO TAKEN TO DIGITAL RIVER ON OR PRIOR TO THE
CLOSING DATE.
THE COMPANY SHALL MAKE ALL FILINGS AND REPORTS RELATING TO THE
OFFER AND SALE OF THE SECURITIES REQUIRED UNDER APPLICABLE SECURITIES OR "BLUE
SKY" LAWS OF THE STATES OF THE UNITED STATES FOLLOWING THE CLOSING DATE.
4.2
EXPENSES; FEES.
EACH PARTY SHALL EACH PAY THEIR OWN EXPENSES IN
CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
7
ARTICLE V
CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL.
The obligation of the Company hereunder to issue and sell the Shares to Digital
River at the Closing is subject to the satisfaction, at or before the Closing
Date, of each of the following conditions, provided that these conditions are
for the Company's sole benefit and may be waived by the Company at any time in
its sole discretion by providing Digital River with prior written notice
thereof:
5.1
DIGITAL RIVER SHALL HAVE EXECUTED AND DELIVERED TO THE COMPANY
EACH OF THE TRANSACTION DOCUMENTS.
5.2
DIGITAL RIVER SHALL HAVE DELIVERED TO THE COMPANY THE PURCHASE
PRICE FOR THE SHARES BEING PURCHASED BY DIGITAL RIVER AT THE CLOSING BY WIRE
TRANSFER OF IMMEDIATELY AVAILABLE FUNDS PURSUANT TO THE WIRE INSTRUCTIONS
PROVIDED BY THE COMPANY.
5.3
THE REPRESENTATIONS AND WARRANTIES OF DIGITAL RIVER SHALL BE TRUE
AND CORRECT IN ALL MATERIAL RESPECTS AS OF THE DATE WHEN MADE AND AS OF THE
CLOSING DATE AS THOUGH MADE AT THAT TIME, AND DIGITAL RIVER SHALL HAVE
PERFORMED, SATISFIED AND COMPLIED IN ALL MATERIAL RESPECTS WITH THE COVENANTS,
AGREEMENTS AND CONDITIONS REQUIRED BY THIS AGREEMENT TO BE PERFORMED, SATISFIED
OR