or authority shall be
pending or, to the knowledge of the Company, threatened, challenging or imposing
a material limitation on the execution, delivery or performance of this
Agreement, the consummation of any of the transactions contemplated thereby or
the operation by the Company of its businesses as now conducted.
5.3
Approval of Documents.
All proceedings
taken in connection with the transactions contemplated hereby and all documents
incident to such transactions shall be reasonably satisfactory in form and
substance to each Investor and its counsel.
5.4
Compliance with Laws.
The purchase of the
Shares by each Investor hereunder shall be legally permitted by all laws and
regulations to which each Investor or the Company is subject.
5.5
No Material Adverse Change.
Except as
described in the SEC Reports or in Schedule 2.7, there shall have been no event
that has had or could reasonably be expected to have a Materially Adverse Effect
since December 31, 2004.
5.6
Opinion of Counsel.
Investor shall have
received an opinion of counsel to the Company in substantially the form attached
as Schedule 5.6 hereto.
5.7
Minimum Investment.
The Investors shall
have agreed to purchase on the Closing Date shares of Common Stock at a minimum
purchase price of $30,000,000 in the aggregate on the terms set forth herein.
11
6.
Certain Covenants of the Company.
6.1
LISTING OF COMMON STOCK.
THE COMPANY SHALL
USE ITS BEST EFFORTS TO CAUSE THE COMMON STOCK TO BE LISTED ON THE AMERICAN
STOCK EXCHANGE (OR, IF SUCH LISTING CANNOT BE OBTAINED, UPON NASDAQ OR ANOTHER
EXCHANGE) AS SOON AS PRACTICABLE FOLLOWING THE DATE HEREOF.
THE COMPANY SHALL
CAUSE THE SHARES TO BE LISTED OR INCLUDED ON EACH SECURITIES EXCHANGE OR
AUTOMATED QUOTATION SYSTEM ON WHICH SIMILAR SECURITIES ISSUED BY THE COMPANY ARE
THEN LISTED OR INCLUDED.
6.2
SHELF REGISTRATION.
THE COMPANY SHALL
PREPARE AND FILE OR CAUSE TO BE PREPARED AND FILED WITH THE SEC, AS SOON AS
PRACTICABLE BUT IN ANY EVENT NO LATER THAN THIRTY (30) DAYS AFTER THE DATE
HEREOF (THE "FILING DEADLINE"), A REGISTRATION STATEMENT ON FORM SB-2 (OR SUCH
OTHER FORM AS THE COMPANY IS THEN ELIGIBLE TO USE) FOR AN OFFERING TO BE MADE ON
A DELAYED OR CONTINUOUS BASIS PURSUANT TO RULE 415 OF THE SECURITIES ACT
REGISTERING THE RESALE FROM TIME TO TIME BY THE INVESTORS OF THE SHARES PURSUANT
TO PLANS OF DISTRIBUTION REASONABLY ACCEPTABLE TO THE INVESTORS (THE
"REGISTRATION STATEMENT").
EACH INVESTOR AGREES TO PROMPTLY PROVIDE TO THE
COMPANY, IN WRITING, SUCH INFORMATION AS THE COMPANY MAY REASONABLY REQUEST FOR
INCLUSION IN THE REGISTRATION STATEMENT.
THE COMPANY SHALL USE ITS BEST EFFORTS
TO CAUSE THE REGISTRATION STATEMENT TO BE DECLARED EFFECTIVE UNDER THE
SECURITIES ACT NO LATER THAN FIVE (5) BUSINESS DAYS AFTER RECEIPT OF NOTICE OF
"NO REVIEW" BY THE SEC OR NINETY (90) DAYS FROM THE DATE HEREOF IN THE EVENT OF
SEC REVIEW (THE "EFFECTIVENESS DEADLINE"), AND TO KEEP SUCH REGISTRATION
STATEMENT CONTINUOUSLY EFFECTIVE UNDER THE SECURITIES ACT UNTIL THE EARLIER OF
(I) THE DATE