ITS OBLIGATIONS UNDER SECTION 4.3, THE COMPANY IN WRITING
REQUESTS AN INVESTOR TO ENTER INTO A WRITTEN CONFIDENTIALITY AGREEMENT REGARDING
INFORMATION WHICH THE COMPANY DESIRES TO DISCLOSE TO SUCH INVESTOR AND WHICH THE
COMPANY BELIEVES IS MATERIAL AND NON-PUBLIC AND SUCH INVESTOR INFORMS THE
COMPANY THAT IT WOULD NOT BE WILLING TO ENTER INTO SUCH CONFIDENTIALITY
AGREEMENT, THEN SUCH INVESTOR SHALL BE DEEMED TO HAVE WAIVED ITS PARTICIPATION
RIGHTS UNDER SECTION 4.3 AS TO THE NOTICE IN QUESTION.
4.11
LISTING OF SECURITIES.
THE COMPANY AGREES, (I) IF THE COMPANY
APPLIES TO HAVE THE COMMON STOCK TRADED ON ANY OTHER TRADING MARKET, IT WILL
INCLUDE IN SUCH APPLICATION THE SHARES AND WARRANT SHARES, AND WILL TAKE SUCH
OTHER ACTION AS IS NECESSARY OR DESIRABLE TO CAUSE THE SHARES AND WARRANT SHARES
TO BE LISTED ON SUCH OTHER TRADING MARKET AS PROMPTLY AS POSSIBLE, AND (II) IT
WILL TAKE ALL ACTION REASONABLY NECESSARY TO CONTINUE THE LISTING AND TRADING OF
ITS COMMON STOCK ON A TRADING MARKET AND WILL COMPLY IN ALL MATERIAL RESPECTS
WITH THE COMPANY'S REPORTING, FILING AND OTHER OBLIGATIONS UNDER THE BYLAWS OR
RULES OF THE TRADING MARKET.
4.12
USE OF PROCEEDS.
THE COMPANY WILL USE THE NET PROCEEDS FROM THE
SALE OF THE SECURITIES HEREUNDER FOR WORKING CAPITAL PURPOSES AND FOR CAPITAL
EXPENDITURES, AND NOT TO REDEEM ANY COMMON STOCK OR COMMON STOCK EQUIVALENTS.
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4.13
DELIVERY OF INVESTMENT AMOUNT.
AT THE CLOSING, EACH INVESTOR SHALL
DELIVER TO THE ESCROW ACCOUNT SPECIFIED IN THE ESCROW AGREEMENT, FOR DEPOSIT AND
DISTRIBUTION IN ACCORDANCE WITH THE TERMS OF THE ESCROW AGREEMENT, SUCH
INVESTOR'S INVESTMENT AMOUNT, IN UNITED STATES DOLLARS AND IN IMMEDIATELY
AVAILABLE FUNDS.
ARTICLE V.
CONDITIONS PRECEDENT TO CLOSINGS
5.1
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE INVESTORS TO
PURCHASE SECURITIES.
THE OBLIGATION OF EACH INVESTOR TO ACQUIRE SECURITIES AT
THE CLOSING IS SUBJECT TO THE SATISFACTION OR WAIVER BY SUCH INVESTOR, AT OR
BEFORE THE CLOSING, OF EACH OF THE FOLLOWING CONDITIONS:
(A)
REPRESENTATIONS AND WARRANTIES.
THE REPRESENTATIONS AND
WARRANTIES OF THE COMPANY CONTAINED HEREIN SHALL BE TRUE AND CORRECT IN ALL
MATERIAL RESPECTS AS OF THE DATE WHEN MADE AND AS OF THE CLOSING AS THOUGH MADE
ON AND AS OF SUCH DATE;
(B)
PERFORMANCE.
THE COMPANY SHALL HAVE PERFORMED, SATISFIED AND
COMPLIED IN ALL MATERIAL RESPECTS WITH ALL COVENANTS, AGREEMENTS AND CONDITIONS
REQUIRED BY THE TRANSACTION DOCUMENTS TO BE PERFORMED, SATISFIED OR COMPLIED
WITH BY IT AT OR PRIOR TO THE CLOSING;
(C)
NO INJUNCTION.
NO STATUTE, RULE, REGULATION, EXECUTIVE ORDER,
DECREE, RULING OR INJUNCTION SHALL HAVE BEEN ENACTED, ENTERED, PROMULGATED OR
ENDORSED BY ANY COURT OR GOVERNMENTAL AUTHORITY OF COMPETENT JURISDICTION THAT
PROHIBITS THE CONSUMMATION OF ANY OF THE TRANSACTIONS CONTEMPLATED BY THE
TRANSACTION DOCUMENTS;
(D)
ADVERSE CHANGES.
SINCE THE DATE OF EXECUTION OF THIS AGREEMENT,
NO EVENT OR SERIES OF EVENTS SHALL HAVE OCCURRED THAT REASONABLY COULD HAVE OR
RESULT IN A MATERIAL ADVERSE EFFECT;
(E)
NO SUSPENSIONS OF TRADING IN COMMON STOCK; LISTING.
TRADING IN
THE COMMON STOCK SHALL NOT HAVE BEEN