FUNDS TO AN ACCOUNT SPECIFIED BY THE COMPANY AND (B) THE COMPANY SHALL ISSUE AND
DELIVER TO THE INVESTOR, FREE AND CLEAR OF ALL LIENS, ONE OR MORE STOCK
CERTIFICATES, DULY EXECUTED BY THE COMPANY AND REGISTERED IN THE COMPANY'S STOCK
LEDGER IN THE INVESTOR'S OR ITS NOMINEE'S NAME, EVIDENCING THE INITIAL SERIES A
PREFERRED SHARES
7
2.3.
WARRANT.
AT THE CLOSING, SUBJECT TO THE TERMS
AND THE CONDITIONS SET FORTH HEREIN, INCLUDING THE REPRESENTATIONS AND
WARRANTIES SET FORTH HEREIN AND THE CLOSING DOCUMENTS DELIVERED PURSUANT HERETO,
THE COMPANY SHALL ISSUE TO THE INVESTOR THE WARRANT TO PURCHASE, ON THE TERMS
AND CONDITIONS SET FORTH THEREIN, AN ADDITIONAL 190,000 SHARES OF SERIES A
PREFERRED STOCK (THE "WARRANT SHARES" AND, TOGETHER WITH THE INITIAL SERIES A
PREFERRED SHARES, THE "SERIES A PREFERRED SHARES").
2.4.
CLOSING.
THE CLOSING OF THE PURCHASE AND SALE
OF THE INITIAL SERIES A PREFERRED SHARES AND THE ISSUANCE OF THE WARRANT (THE
"CLOSING") SHALL TAKE PLACE AT THE OFFICES OF SIDLEY AUSTIN BROWN & WOOD LLP,
BANK ONE PLAZA, 10 SOUTH DEARBORN STREET, CHICAGO, ILLINOIS 60603 AT 10:00 A.M.,
LOCAL TIME, ON THE DATE OF THIS AGREEMENT, OR AT SUCH OTHER PLACE OR TIME OR ON
SUCH OTHER DATE AS SHALL BE AGREED TO BY THE COMPANY AND THE INVESTOR.
THE TIME
AND DATE ON WHICH THE INITIAL CLOSING IS ACTUALLY HELD ARE SOMETIMES REFERRED TO
HEREIN AS THE "CLOSING DATE."
ARTICLE III
CONDITIONS OF THE INVESTOR'S OBLIGATIONS AT THE CLOSING
The obligation of the Investor to purchase the Initial Series A Preferred Shares
at the Closing is subject to the fulfillment to the reasonable satisfaction of
the Investor at or prior to the Closing of each of the following conditions:
3.1.
REPRESENTATIONS AND WARRANTIES.
EACH OF THE
REPRESENTATIONS AND WARRANTIES OF THE COMPANY CONTAINED IN ARTICLE VII SHALL BE
TRUE, CORRECT AND COMPLETE ON AND AS OF THE CLOSING DATE AS THOUGH THEN MADE
(EXCEPT FOR REPRESENTATIONS AND WARRANTIES THAT SPEAK AS OF A SPECIFIC DATE IN
WHICH CASE SUCH REPRESENTATIONS OR WARRANTIES ONLY NEED BE TRUE AND CORRECT AS
OF THE SPECIFIED DATE).
3.2.
PERFORMANCE.
ALL COVENANTS, AGREEMENTS AND
CONDITIONS CONTAINED IN THIS AGREEMENT TO BE PERFORMED OR COMPLIED WITH BY THE
COMPANY ON OR PRIOR TO THE CLOSING DATE SHALL HAVE BEEN PERFORMED OR COMPLIED
WITH.
3.3.
GOVERNMENTAL AUTHORITY.
ON OR PRIOR TO THE
CLOSING DATE, ANY AUTHORIZATIONS, CONSENTS, APPROVALS OR PERMITS OF ANY
GOVERNMENTAL AUTHORITY THAT ARE REQUIRED BY LAW IN CONNECTION WITH THE LAWFUL
SALE AND ISSUANCE OF THE SERIES A PREFERRED SHARES OR THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, THE REGISTRATION RIGHTS AGREEMENT
AND THE WARRANT, SHALL HAVE BEEN DULY OBTAINED BY THE COMPANY, AND SHALL BE
EFFECTIVE ON AND AS OF THE CLOSING DATE.
3.4.
CONSENTS.
ON OR PRIOR TO THE CLOSING DATE, THE
COMPANY SHALL HAVE RECEIVED AND DELIVERED TO SPECIAL COUNSEL TO THE INVESTOR,
COPIES OF ALL CONSENTS AND APPROVALS OF THIRD PARTIES REQUIRED UNDER ALL
CONTRACTS TO WHICH THE COMPANY IS A PARTY