REGULATORY ACTIONS, SUITS OR PROCEEDINGS PENDING, NOR, TO THE
COMPANY'S KNOWLEDGE, ANY LEGAL, GOVERNMENTAL OR REGULATORY INVESTIGATIONS, TO
WHICH THE COMPANY OR ANY SUBSIDIARY IS A PARTY OR TO WHICH ANY PROPERTY OF THE
COMPANY OR ANY SUBSIDIARY IS THE SUBJECT THAT, INDIVIDUALLY OR IN THE AGGREGATE,
WOULD REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT OR MATERIALLY AND
ADVERSELY AFFECT THE ABILITY OF THE COMPANY TO PERFORM ITS OBLIGATIONS UNDER THE
AGREEMENT; TO THE COMPANY'S KNOWLEDGE, NO SUCH ACTIONS, SUITS OR PROCEEDINGS ARE
THREATENED OR CONTEMPLATED BY ANY GOVERNMENTAL OR REGULATORY AUTHORITY OR
THREATENED BY OTHERS; AND THERE ARE NO CURRENT OR PENDING LEGAL, GOVERNMENTAL OR
REGULATORY INVESTIGATIONS, ACTIONS, SUITS OR PROCEEDINGS THAT ARE REQUIRED UNDER
THE ACT TO BE DESCRIBED IN THE PROSPECTUS THAT ARE NOT SO DESCRIBED.
(W)
THE COMPANY AND EACH SUBSIDIARY HAS, AND AT THE CLOSING DATE WILL
HAVE, (I) ALL GOVERNMENTAL LICENSES, PERMITS, CONSENTS, ORDERS, APPROVALS AND
OTHER AUTHORIZATIONS NECESSARY TO CARRY ON ITS RESPECTIVE BUSINESS AS PRESENTLY
CONDUCTED EXCEPT WHERE THE FAILURE TO HAVE SUCH GOVERNMENTAL LICENSES, PERMITS,
CONSENTS, ORDERS, APPROVALS AND OTHER AUTHORIZATIONS WOULD NOT HAVE A MATERIAL
ADVERSE EFFECT, (II) COMPLIED WITH ALL LAWS, REGULATIONS AND ORDERS APPLICABLE
TO EITHER IT OR ITS BUSINESS, EXCEPT WHERE THE FAILURE TO SO
6
COMPLY WOULD NOT HAVE A MATERIAL ADVERSE EFFECT, AND (III) PERFORMED ALL ITS
OBLIGATIONS REQUIRED TO BE PERFORMED, AND IS NOT, AND AT THE CLOSING DATE WILL
NOT BE, IN DEFAULT, UNDER ANY INDENTURE, MORTGAGE, DEED OF TRUST, VOTING TRUST
AGREEMENT, LOAN AGREEMENT, BOND, DEBENTURE, NOTE AGREEMENT, LEASE, CONTRACT OR
OTHER AGREEMENT OR INSTRUMENT (COLLECTIVELY, A "CONTRACT OR OTHER AGREEMENT") TO
WHICH IT IS A PARTY OR BY WHICH ITS PROPERTY IS BOUND OR AFFECTED, EXCEPT WHERE
SUCH DEFAULT WOULD NOT HAVE A MATERIAL ADVERSE EFFECT, AND, TO THE COMPANY'S
BEST KNOWLEDGE, NO OTHER PARTY UNDER ANY MATERIAL CONTRACT OR OTHER AGREEMENT TO
WHICH IT IS A PARTY IS IN DEFAULT IN ANY RESPECT THEREUNDER.
THE COMPANY AND
ITS SUBSIDIARIES ARE NOT IN VIOLATION OF ANY PROVISION OF THEIR RESPECTIVE
ORGANIZATIONAL OR GOVERNING DOCUMENTS.
(X)
THE COMPANY HAS ALL CORPORATE POWER AND AUTHORITY TO ENTER INTO
THIS AGREEMENT, AND TO CARRY OUT THE PROVISIONS AND CONDITIONS HEREOF, AND ALL
CONSENTS, AUTHORIZATIONS, APPROVALS AND ORDERS REQUIRED IN CONNECTION HEREWITH
HAVE BEEN OBTAINED, EXCEPT SUCH AS MAY BE REQUIRED UNDER STATE SECURITIES OR
BLUE SKY LAWS OR THE BY-LAWS AND RULES OF THE NATIONAL ASSOCIATION OF SECURITIES
DEALERS, INC. (THE "NASD") OR THE NASDAQ GLOBAL MARKET IN CONNECTION WITH THE
TRANSACTIONS CONTEMPLATED BY THE PLACEMENT AGENCY AGREEMENT.
(Y)
NEITHER THE EXECUTION OF THIS AGREEMENT, NOR THE ISSUANCE,
OFFERING OR SALE OF THE SHARES, NOR THE CONSUMMATION OF ANY OF THE TRANSACTIONS
CONTEMPLATED HEREIN, NOR THE COMPLIANCE BY THE COMPANY WITH THE TERMS AND
PROVISIONS HEREOF WILL CONFLICT WITH, OR WILL RESULT IN A BREACH OF, ANY OF THE
TERMS AND PROVISIONS OF, OR HAS CONSTITUTED OR WILL CONSTITUTE A DEFAULT UNDER,
OR HAS RESULTED IN OR WILL RESULT IN THE