VIOLATE ANY STATUTE, RULE OR REGULATION OR ANY
JUDGMENT, RULING, ORDER, WRIT, INJUNCTION OR DECREE APPLICABLE TO SUCH INVESTOR
OR ANY OF ITS PROPERTIES OR ASSETS EXCEPT, IN THE CASE OF CLAUSES (I)(B) AND
(II), FOR THOSE OCCURRENCES THAT, INDIVIDUALLY OR IN THE AGGREGATE, HAVE NOT HAD
OR WOULD NOT REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT ON SUCH
INVESTOR'S ABILITY TO PERFORM ITS OBLIGATIONS UNDER THE AGREEMENT OR TO
CONSUMMATE THE TRANSACTIONS CONTEMPLATED HEREBY ON A TIMELY BASIS.
(I)
BROKERS AND FINDERS.
EXCEPT AS DISCLOSED IN WRITING BY SUCH
INVESTOR TO THE COMPANY PRIOR TO SUCH INVESTOR'S ENTERING INTO THIS AGREEMENT
(BY WAY OF JOINDER OR OTHERWISE), NEITHER SUCH INVESTOR NOR ITS AFFILIATES, ANY
OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS HAS EMPLOYED ANY
BROKER OR FINDER OR INCURRED ANY LIABILITY FOR ANY FINANCIAL ADVISORY FEES,
BROKERAGE FEES, COMMISSIONS OR FINDER'S FEES, AND NO BROKER OR FINDER HAS ACTED
DIRECTLY OR INDIRECTLY FOR SUCH INVESTOR, IN CONNECTION WITH THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT.
(J)
NON-RELIANCE.
SUCH INVESTOR IS NOT RELYING UPON, AND HAS NOT
RELIED UPON, ANY STATEMENT, REPRESENTATION OR WARRANTY MADE BY ANY PERSON,
EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES BY THE COMPANY CONTAINED IN THIS
AGREEMENT.
SECTION 5.
DELIVERIES AT CLOSING.
(A)
COMPANY DELIVERABLES.
AT THE CLOSING, THE COMPANY SHALL DELIVER
TO EACH INVESTOR THE FOLLOWING:
(I)
CERTIFICATES REPRESENTING THE NUMBER OF SHARES OF CONVERTIBLE
PREFERRED STOCK TO BE PURCHASED AT THE CLOSING BY SUCH INVESTOR AS SPECIFIED IN
THE ATTACHED ANNEX A, AGAINST PAYMENT OF THE PURCHASE PRICE THEREFOR BY WIRE
TRANSFER OF IMMEDIATELY AVAILABLE FUNDS MADE PAYABLE TO THE ORDER OF THE
COMPANY; AND
(II)
A CERTIFICATE OF A SENIOR OFFICER OF THE COMPANY ON ITS BEHALF TO
THE EFFECT THAT THE CLOSING CONDITIONS IN SECTION 7(A)(I) AND (II) ARE MET AS OF
THE CLOSING.
(B)
INVESTOR DELIVERABLES.
AT THE CLOSING, EACH INVESTOR SHALL
DELIVER TO THE COMPANY THE FOLLOWING:
(I)
PAYMENT OF THE PURCHASE PRICE IN UNITED STATES DOLLARS BY WIRE
TRANSFER OF IMMEDIATELY AVAILABLE FUNDS TO AN ACCOUNT SPECIFIED IN WRITING BY
THE COMPANY; AND
18
(II)
A CERTIFICATE OF A SENIOR OFFICER OF EACH INVESTOR ON ITS BEHALF
TO THE EFFECT THAT THE CLOSING CONDITIONS IN SECTION 7(B)(I) AND (II) ARE MET AS
OF THE CLOSING.
SECTION 6.
COVENANTS.
(A)
PUBLIC STATEMENTS.
NEITHER THE COMPANY NOR ANY INVESTOR SHALL
ISSUE OR CAUSE THE PUBLICATION OF ANY PRESS RELEASE OR OTHER PUBLIC ANNOUNCEMENT
WITH RESPECT TO, OR OTHERWISE MAKE ANY PUBLIC STATEMENT CONCERNING, THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT WITHOUT THE PRIOR CONSENT (WHICH
SHALL NOT BE UNREASONABLY WITHHELD OR DELAYED) OF THE OTHER; PROVIDED, HOWEVER,
THAT ANY PARTY MAY, WITHOUT THE PRIOR CONSENT OF THE OTHER PARTIES ISSUE OR
CAUSE THE PUBLICATION OF ANY PRESS RELEASE OR OTHER PUBLIC ANNOUNCEMENT TO THE
EXTENT REQUIRED BY LAW OR BY THE RULES AND REGULATIONS OF THE NASDAQ STOCK
MARKET.
(B)
REGULATORY APPROVALS.
EACH INVESTOR SHALL USE ITS REASONABLE BEST
EFFORTS TO OBTAIN, AS PROMPTLY AS PRACTICABLE, ALL GOVERNMENTAL,
QUASI-GOVERNMENTAL,