HAVE BEEN SATISFIED AND
THE COMPANY SHALL HAVE CONSUMMATED THE ACQUISITION OF EAG ON TERMS SET FORTH IN
THE ACQUISITION AGREEMENT.
4.14.
BOARD OF DIRECTORS.
MICHAEL JAKOBOWSKI AND ANDREW M. SNYDER SHALL
HAVE BEEN APPOINTED TO SERVE ON THE COMPANY'S BOARD OF DIRECTORS.
5.
CONDITIONS TO THE COMPANY'S OBLIGATIONS AT THE CLOSING.
THE
OBLIGATIONS OF THE COMPANY UNDER SECTION 1 OF THIS AGREEMENT ARE SUBJECT TO THE
FULFILLMENT ON OR BEFORE THE CLOSING OF EACH OF THE FOLLOWING CONDITIONS UNLESS
WAIVED BY THE COMPANY.
15
5.1.
REPRESENTATIONS AND WARRANTIES.
THE REPRESENTATIONS AND
WARRANTIES OF THE INVESTORS CONTAINED IN SECTION 3 SHALL BE TRUE AND CORRECT ON
AND AS OF THE DATE OF THE CLOSING.
5.2.
PAYMENT OF PURCHASE PRICE.
THE INVESTORS SHALL HAVE DELIVERED
PAYMENT OF THE AGGREGATE PURCHASE PRICE OF THE SECURITIES TO BE PURCHASED BY
THEM AT THE CLOSING AS SET FORTH IN SECTION 1.
5.3.
OTHER AGREEMENTS.
ON OR PRIOR TO THE CLOSING THE REGISTRATION
RIGHTS AGREEMENT SUBSTANTIALLY IN THE FORM OF EXHIBIT D ATTACHED HERETO SHALL
HAVE BEEN EXECUTED AND DELIVERED BY THE INVESTORS, AND THE OTHER PARTIES
THERETO.
5.4.
PROCEEDINGS AND DOCUMENTS.
ALL CORPORATE AND OTHER PROCEEDINGS IN
CONNECTION WITH THE TRANSACTIONS CONTEMPLATED AT THE CLOSING AND ALL DOCUMENTS
INCIDENT THERETO SHALL BE REASONABLY SATISFACTORY IN FORM AND SUBSTANCE TO THE
COMPANY AND THE COMPANY'S COUNSEL, AND THEY SHALL HAVE RECEIVED ALL SUCH
COUNTERPART ORIGINAL AND CERTIFIED OR OTHER COPIES OF SUCH DOCUMENTS AS THEY MAY
REASONABLY REQUEST.
5.5.
CONSUMMATION OF THE EAG ACQUISITION.
THE CONDITIONS SET FORTH IN
THE ACQUISITION AGREEMENT SHALL HAVE BEEN SATISFIED AND THE COMPANY SHALL HAVE
CONSUMMATED THE ACQUISITION OF EAG ON TERMS SET FORTH IN THE ACQUISITION
AGREEMENT.
5.6.
QUALIFICATIONS.
ALL AUTHORIZATIONS, APPROVALS, CONSENTS OR
PERMITS, IF ANY, OF ANY GOVERNMENTAL AUTHORITY OR REGULATORY BODY OF THE UNITED
STATES OR OF ANY STATE OR OF ANY THIRD PARTY THAT ARE REQUIRED IN CONNECTION
WITH THE LAWFUL ISSUANCE AND SALE OF THE SECURITIES TO THE INVESTORS PURSUANT TO
THIS AGREEMENT OR THAT ARE NECESSARY IN CONNECTION WITH THE EXECUTION OF THIS
AGREEMENT SHALL HAVE BEEN DULY OBTAINED AND SHALL BE EFFECTIVE ON AND AS OF THE
CLOSING OTHER THAN THOSE WHICH ARE NOT REQUIRED TO BE OBTAINED BEFORE THE
CLOSING, WHICH WILL BE OBTAINED IN A TIMELY MANNER AFTER THE CLOSING.
6.
PREEMPTIVE RIGHT OF PURCHASE.
6.1.
GRANT.
FOR SO LONG AS AN INVESTOR SHALL HOLD SERIES A PREFERRED
STOCK, THE COMPANY HEREBY GRANTS TO EACH SUCH INVESTOR, THE RIGHT TO PURCHASE
ALL OR PART OF SUCH INVESTOR'S PRO RATA SHARE OF NEW SECURITIES (AS DEFINED
BELOW) WHICH THE COMPANY, FROM TIME TO TIME, PROPOSES TO SELL AND ISSUE.
AN
INVESTOR'S PRO RATA SHARE, FOR PURPOSES OF THIS PURCHASE RIGHT, IS THE RATIO OF
THE NUMBER OF INVESTORS' COMMON SHARES (AS DEFINED BELOW) WHICH SUCH INVESTOR
OWNS OR HAS THE RIGHT TO ACQUIRE FROM THE COMPANY TO THE TOTAL NUMBER OF SHARES
OF COMMON STOCK THEN OUTSTANDING, ON A FULLY DILUTED AND AS CONVERTED BASIS.
6.2.
PREEMPTIVE RIGHT DEFINITIONS.