OR A TRANSFER OF ALL OR SUBSTANTIALLY
ALL THE ASSETS OF THE COMPANY TO ANOTHER ENTITY (A "CONSOLIDATION EVENT") UNLESS
THE RESULTING SUCCESSOR OR ACQUIRING ENTITY (IF NOT THE COMPANY) ASSUMES BY
WRITTEN INSTRUMENT THE OBLIGATION TO DELIVER TO THE INVESTOR SUCH SHARES OF
STOCK AND/OR SECURITIES AS THE INVESTOR IS ENTITLED TO RECEIVE PURSUANT TO THIS
AGREEMENT.
SECTION 6.9.
ISSUANCE OF THE COMPANY'S COMMON
STOCK.
THE SALE OF THE SHARES OF COMMON STOCK SHALL BE MADE IN ACCORDANCE WITH
THE PROVISIONS AND REQUIREMENTS OF REGULATION D AND ANY APPLICABLE STATE
SECURITIES LAW.
16
ARTICLE VII.
CONDITIONS FOR ADVANCE AND CONDITIONS TO CLOSING
SECTION 7.1.
CONDITIONS PRECEDENT TO THE
OBLIGATIONS OF THE COMPANY.
THE OBLIGATION HEREUNDER OF THE COMPANY TO ISSUE
AND SELL THE SHARES OF COMMON STOCK TO THE INVESTOR INCIDENT TO EACH CLOSING IS
SUBJECT TO THE SATISFACTION, OR WAIVER BY THE COMPANY, AT OR BEFORE EACH SUCH
CLOSING, OF EACH OF THE CONDITIONS SET FORTH BELOW.
(A)
ACCURACY OF THE INVESTOR'S REPRESENTATIONS
AND WARRANTIES.
THE REPRESENTATIONS AND WARRANTIES OF THE INVESTOR SHALL BE
TRUE AND CORRECT IN ALL MATERIAL RESPECTS.
(B)
PERFORMANCE BY THE INVESTOR.
THE INVESTOR
SHALL HAVE PERFORMED, SATISFIED AND COMPLIED IN ALL RESPECTS WITH ALL COVENANTS,
AGREEMENTS AND CONDITIONS REQUIRED BY THIS AGREEMENT AND THE REGISTRATION RIGHTS
AGREEMENT TO BE PERFORMED, SATISFIED OR COMPLIED WITH BY THE INVESTOR AT OR
PRIOR TO SUCH CLOSING.
SECTION 7.2.
CONDITIONS PRECEDENT TO THE RIGHT
OF THE COMPANY TO DELIVER AN ADVANCE NOTICE AND THE OBLIGATION OF THE INVESTOR
TO PURCHASE SHARES OF COMMON STOCK.
THE RIGHT OF THE COMPANY TO DELIVER AN
ADVANCE NOTICE AND THE OBLIGATION OF THE INVESTOR HEREUNDER TO ACQUIRE AND PAY
FOR SHARES OF THE COMPANY'S COMMON STOCK INCIDENT TO A CLOSING IS SUBJECT TO THE
FULFILLMENT BY THE COMPANY, ON (I) THE DATE OF DELIVERY OF SUCH ADVANCE NOTICE
AND (II) THE APPLICABLE ADVANCE DATE (EACH A "CONDITION SATISFACTION DATE"), OF
EACH OF THE FOLLOWING CONDITIONS:
(A)
REGISTRATION OF THE COMMON STOCK WITH THE
SEC.
THE COMPANY SHALL HAVE FILED WITH THE SEC A REGISTRATION STATEMENT WITH
RESPECT TO THE RESALE OF THE REGISTRABLE SECURITIES IN ACCORDANCE WITH THE TERMS
OF THE REGISTRATION RIGHTS AGREEMENT.
AS SET FORTH IN THE REGISTRATION RIGHTS
AGREEMENT, THE REGISTRATION STATEMENT SHALL HAVE PREVIOUSLY BECOME EFFECTIVE AND
SHALL REMAIN EFFECTIVE ON EACH CONDITION SATISFACTION DATE AND (I) NEITHER THE
COMPANY NOR THE INVESTOR SHALL HAVE RECEIVED NOTICE THAT THE SEC HAS ISSUED OR
INTENDS TO ISSUE A STOP ORDER WITH RESPECT TO THE REGISTRATION STATEMENT OR THAT
THE SEC OTHERWISE HAS SUSPENDED OR WITHDRAWN THE EFFECTIVENESS OF THE
REGISTRATION STATEMENT, EITHER TEMPORARILY OR PERMANENTLY, OR INTENDS OR HAS
THREATENED TO DO SO (UNLESS THE SEC'S CONCERNS HAVE BEEN ADDRESSED AND THE
INVESTOR IS REASONABLY SATISFIED THAT THE SEC NO LONGER IS CONSIDERING OR
INTENDS TO TAKE SUCH ACTION), AND (II) NO OTHER SUSPENSION OF THE USE OR
WITHDRAWAL OF THE EFFECTIVENESS OF THE REGISTRATION STATEMENT OR RELATED
PROSPECTUS SHALL EXIST.
THE REGISTRATION STATEMENT MUST HAVE BEEN