such
disclosure.
Subject to the foregoing, neither the Company nor the Investor
shall issue any press releases or any other public statements with respect to
the transactions contemplated hereby; provided, however, that the Company shall
be entitled, with the prior approval of the Investor (not to be unreasonably
withheld or delayed), to make any press release or other public disclosure with
respect to such transactions (i) in substantial conformity with the 8-K Filing
and contemporaneously therewith and (ii) as is required by applicable law and
regulations, including the applicable rules and regulations of the Principal
Market (provided that in the case of clause (i) the Investor shall be consulted
by the Company (although the consent of the Investor shall not be required) in
connection with any such press release or other public disclosure prior to its
release).
(B)
REGISTRATION STATEMENT.
IF REQUIRED PURSUANT TO THE RULES AND
REGULATIONS OF THE 1933 ACT, THE COMPANY SHALL PREPARE, AND, AS SOON AS
PRACTICABLE BUT IN NO EVENT LATER THAN TWO (2) BUSINESS DAYS AFTER THE DATE
HEREOF, FILE WITH THE SEC A PROSPECTUS SUPPLEMENT PURSUANT TO SECTION 424(B) OF
THE 1933 ACT REFLECTING THE CHANGES SET FORTH IN THIS AGREEMENT.
5.
CONDITIONS TO COMPANY'S OBLIGATIONS
HEREUNDER.
The obligations of the Company hereunder are subject to the satisfaction 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 the Investor with prior written notice thereof:
(A)
THE INVESTOR SHALL HAVE EXECUTED THIS AGREEMENT AND DELIVERED THE
SAME TO THE COMPANY.
(B)
THE INVESTOR SHALL HAVE DELIVERED TO THE COMPANY THE INVESTOR'S
NOTES.
(C)
THE REPRESENTATIONS AND WARRANTIES OF THE INVESTOR 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 SPEAK AS OF A
SPECIFIC DATE), AND SUCH INVESTOR SHALL HAVE PERFORMED, SATISFIED AND COMPLIED
IN ALL MATERIAL RESPECTS WITH THE COVENANTS, AGREEMENTS AND
4
CONDITIONS REQUIRED BY THIS AGREEMENT TO BE PERFORMED, SATISFIED OR COMPLIED
WITH BY SUCH INVESTOR AT OR PRIOR TO THE CLOSING DATE.
(D)
THE COMPANY SHALL HAVE ENTERED INTO SEPARATE BUT SUBSTANTIALLY
IDENTICAL CONVERSION AND AMENDMENT AGREEMENTS WITH EACH OF THE OTHER INVESTORS
AND ALL CONDITIONS TO THE CLOSINGS CONTEMPLATED BY SUCH AGREEMENTS SHALL HAVE
BEEN SATISFIED OR WAIVED.
6.
CONDITIONS TO INVESTOR'S OBLIGATIONS
HEREUNDER.
The obligations of the Investor hereunder are subject to the satisfaction of
each of the following conditions, provided that these conditions are for the
Investor's sole benefit and may be waived by the Investor at any time in its
sole discretion by providing the Company with prior written notice thereof:
(A)
THE COMPANY SHALL HAVE EXECUTED AND DELIVERED TO THE INVESTOR (I)
THIS AGREEMENT AND (II) THE AMENDED AND RESTATED NOTES (IN SUCH PRINCIPAL
AMOUNTS AS SUCH INVESTOR SHALL REQUEST).
(B)
THE COMPANY SHALL HAVE CREDITED THE INVESTOR CONVERSION SHARES TO