PURCHASER'S DESIGNEES.
2.3
SECOND CLOSING ADJUSTMENTS.
IN THE EVENT THAT, AT OR PRIOR TO THE
SECOND CLOSING, (I) THE NUMBER OF SHARES OF COMMON STOCK OR SECURITIES
CONVERTIBLE OR EXCHANGEABLE INTO OR EXERCISABLE FOR SHARES OF COMMON STOCK
ISSUED AND OUTSTANDING IS CHANGED AS A RESULT OF ANY RECLASSIFICATION, STOCK
SPLIT (INCLUDING REVERSE SPLIT), STOCK DIVIDEND OR DISTRIBUTION (INCLUDING ANY
DIVIDEND OR DISTRIBUTION OF SECURITIES CONVERTIBLE OR EXCHANGEABLE INTO OR
EXERCISABLE FOR SHARES OF COMMON STOCK), MERGER, TENDER OR EXCHANGE OFFER OR
OTHER SIMILAR TRANSACTION, OR (II) THE COMPANY FIXES A RECORD DATE THAT IS AT OR
PRIOR TO THE SECOND CLOSING DATE FOR THE PAYMENT OF ANY NON-STOCK DIVIDEND OR
DISTRIBUTION ON THE COMMON STOCK, THEN AT THE PURCHASER'S OPTION, WHICH MAY BE
EXERCISED IN THE PURCHASER'S SOLE DISCRETION, THE NUMBER OF SHARES OF COMMON
STOCK TO BE ISSUED TO THE PURCHASER AT THE SECOND CLOSING UNDER THIS AGREEMENT
SHALL BE EQUITABLY ADJUSTED AND/OR THE SHARES OF COMMON STOCK TO BE ISSUED TO
THE PURCHASER AT THE SECOND CLOSING UNDER THIS AGREEMENT SHALL BE EQUITABLY
SUBSTITUTED WITH SHARES OF OTHER STOCK OR SECURITIES OR PROPERTY (INCLUDING
CASH), IN EACH CASE, TO PROVIDE THE PURCHASER WITH SUBSTANTIALLY THE SAME
ECONOMIC BENEFIT FROM THIS AGREEMENT AS THE PURCHASER HAD PRIOR TO THE
APPLICABLE TRANSACTION.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE
CONTRARY, IN NO EVENT SHALL THE PURCHASER BE REQUIRED TO MAKE ANY PAYMENT BY
VIRTUE OF THE FOREGOING.
3.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY. EXCEPT AS SET FORTH IN THE
COMPANY'S FORM 10-K FOR THE FISCAL YEAR ENDED DECEMBER 31, 2008 SUBSEQUENT
QUARTERLY REPORTS ON FORM 10-Q AND SUBSEQUENT CURRENT REPORTS ON FORM 8-K, EACH
AS PUBLICLY FILED AND AVAILABLE PRIOR TO THE DATE HEREOF (EXCLUDING ANY RISK
FACTOR DISCLOSURES CONTAINED IN SUCH DOCUMENTS UNDER THE HEADING "RISK FACTORS"
AND ANY DISCLOSURE OF RISKS, UNCERTAINTIES OR CONTINGENCIES INCLUDED IN ANY
"FORWARD-LOOKING STATEMENTS" DISCLAIMER OR OTHER STATEMENTS THAT ARE
NON-SPECIFIC OR ARE PREDICTIVE OR FORWARD-LOOKING IN NATURE) (SUCH FORM 10-K,
FORM 10-QS AND FORM 8-KS, THE "CURRENT SEC REPORTS") AND IN THE SCHEDULES
ATTACHED HERETO, THE COMPANY HEREBY REPRESENTS AND WARRANTS TO THE PURCHASER AS
FOLLOWS:
3.1
ORGANIZATION AND QUALIFICATION.
THE COMPANY IS AN ENTITY DULY ORGANIZED,
VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE JURISDICTION OF ITS
INCORPORATION OR ORGANIZATION (AS APPLICABLE), WITH THE REQUISITE CORPORATE
AUTHORITY TO OWN AND USE ITS PROPERTIES AND ASSETS AND TO CARRY ON ITS BUSINESS
AS CURRENTLY CONDUCTED.
THE COMPANY IS NOT IN VIOLATION OF ANY OF THE
PROVISIONS OF ITS CERTIFICATE OF INCORPORATION, BYLAWS OR OTHER ORGANIZATIONAL
OR CHARTER DOCUMENTS.
THE COMPANY IS DULY QUALIFIED TO DO BUSINESS AND IS IN
GOOD STANDING AS A FOREIGN CORPORATION OR OTHER ENTITY IN EACH JURISDICTION IN
WHICH THE NATURE OF THE BUSINESS CONDUCTED OR PROPERTY OWNED BY IT MAKES SUCH
QUALIFICATION NECESSARY, EXCEPT WHERE THE FAILURE TO BE SO QUALIFIED OR IN GOOD
STANDING, AS THE CASE MAY BE, COULD NOT, INDIVIDUALLY OR IN THE AGGREGATE,
(I) MATERIALLY AND ADVERSELY AFFECT