SHARES AT THE CLOSING IS
SUBJECT TO THE FULFILLMENT TO THE SATISFACTION OF THE COMPANY ON OR PRIOR TO THE
CLOSING DATE OF THE FOLLOWING CONDITIONS, ANY OF WHICH MAY BE WAIVED BY THE
COMPANY:
(A)
REPRESENTATIONS AND WARRANTIES.
THE REPRESENTATIONS AND
WARRANTIES MADE BY THE PURCHASERS IN SECTION 3.2 HEREOF SHALL BE TRUE AND
CORRECT IN ALL MATERIAL RESPECTS AS OF THE DATE WHEN MADE, AND AS OF THE CLOSING
DATE AS THOUGH MADE ON AND AS OF SUCH DATE;
(B)
PERFORMANCE.
THE PURCHASERS 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 THE PURCHASERS 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)
PURCHASERS DELIVERABLES.
EACH PURCHASER SHALL HAVE DELIVERED ITS
PURCHASER DELIVERABLES IN ACCORDANCE WITH SECTION 2.2(B); AND
(E)
TERMINATION.
THIS AGREEMENT SHALL NOT HAVE BEEN TERMINATED AS TO
SUCH PURCHASER IN ACCORDANCE WITH SECTION 6.16 HEREIN.
ARTICLE VI.
MISCELLANEOUS
6.1
FEES AND EXPENSES.
THE COMPANY AND THE PURCHASERS SHALL EACH PAY
THE FEES AND EXPENSES OF THEIR RESPECTIVE ADVISERS, COUNSEL, ACCOUNTANTS AND
OTHER EXPERTS, IF ANY AND ALL OTHER EXPENSES INCURRED BY SUCH PARTY IN
CONNECTION WITH THE NEGOTIATION, PREPARATION, EXECUTION, DELIVERY AND
PERFORMANCE OF THIS AGREEMENT.
THE COMPANY SHALL PAY ALL TRANSFER AGENT FEES,
STAMP TAXES AND OTHER TAXES AND DUTIES LEVIED IN CONNECTION WITH THE SALE AND
ISSUANCE OF THE SHARES TO THE PURCHASERS. EACH PARTY ACKNOWLEDGES THAT
LOWENSTEIN SANDLER PC HAS RENDERED LEGAL ADVICE TO THE COMPANY, AND NOT TO SUCH
PARTY IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY, AND THAT SUCH
PARTY HAS RELIED FOR SUCH MATTERS ON THE ADVICE OF ITS OWN RESPECTIVE COUNSEL.
THE COMPANY FURTHER AGREES TO PAY SUCH FEES AND EXPENSES AS REQUIRED BY IT UNDER
THE ENGAGEMENT AGREEMENT WITH THE PLACEMENT AGENT, INCLUDING WITHOUT LIMITATION,
THE REASONABLE FEES AND EXPENSES OF THE PLACEMENT AGENT'S COUNSEL.
6.2
ENTIRE AGREEMENT.
THE TRANSACTION DOCUMENTS, TOGETHER WITH THE
EXHIBITS AND SCHEDULES THERETO, CONTAIN THE ENTIRE UNDERSTANDING OF THE PARTIES
WITH RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDE ALL PRIOR AGREEMENTS,
UNDERSTANDINGS, DISCUSSIONS AND REPRESENTATIONS, ORAL OR WRITTEN, WITH RESPECT
TO SUCH MATTERS, WHICH THE PARTIES ACKNOWLEDGE HAVE BEEN MERGED INTO SUCH
DOCUMENTS, EXHIBITS AND SCHEDULES.
AT
22
or after the Closing, and without further consideration, the Company and the
Purchasers will execute and deliver to the other such further documents as may
be reasonably requested in order to give practical effect to the intention of
the parties under the Transaction Documents.
6.3
NOTICES.
ANY AND ALL NOTICES OR OTHER COMMUNICATIONS OR
DELIVERIES REQUIRED OR PERMITTED TO BE PROVIDED HEREUNDER SHALL BE IN WRITING
AND SHALL BE DEEMED GIVEN AND EFFECTIVE ON THE EARLIEST OF (A) THE DATE