"BASE PROSPECTUS")
AND (2) A PROSPECTUS SUPPLEMENT (THE "PROSPECTUS SUPPLEMENT" AND TOGETHER WITH
THE BASE PROSPECTUS, THE "PROSPECTUS") CONTAINING CERTAIN SUPPLEMENTAL
INFORMATION REGARDING THE SHARES AND TERMS OF THE OFFERING THAT WILL BE FILED
WITH THE COMMISSION AND DELIVERED TO THE
4
PURCHASER (OR MADE AVAILABLE TO THE PURCHASER BY THE FILING BY THE COMPANY OF AN
ELECTRONIC VERSION THEREOF WITH THE COMMISSION).
(B) UPON SATISFACTION OF THE CONDITIONS SET FORTH IN SECTION 2.2, (I) EACH
PURCHASER SHALL DELIVER TO THE COMPANY SUCH PURCHASER'S SUBSCRIPTION AMOUNT BY
WIRE TRANSFER OF IMMEDIATELY AVAILABLE FUNDS TO AN ACCOUNT DESIGNATED BY THE
COMPANY AS SET FORTH ON SCHEDULE I HERETO, WHICH FUNDS WILL BE DELIVERED TO THE
COMPANY IN CONSIDERATION OF THE SHARES AND THE WARRANTS ISSUED AT THE CLOSING
AND (II) THE COMPANY SHALL DELIVER TO EACH PURCHASER DULY EXECUTED CERTIFICATES
EVIDENCING THE SHARES AND THE WARRANTS PROVIDED HOWEVER THAT THE COMPANY MAY
DELIVER
THE SHARES THROUGH THE DEPOSITORY TRUST COMPANY DEPOSIT/WITHDRAWAL AT
CUSTODIAN ("DWAC") SYSTEM TO THE ACCOUNT THAT THE PURCHASER HAS SPECIFIED IN
WRITING TO THE COMPANY.
DELIVERY OF THE SHARES MAY BE BY ELECTRONIC BOOK-ENTRY
AT THE DEPOSITORY TRUST COMPANY ("DTC"), REGISTERED IN THE PURCHASER'S NAME AND
ADDRESS AS SET FORTH ON SCHEDULE I, AND RELEASED BY THE COMPANY'S TRANSFER AGENT
TO THE PURCHASER AT THE CLOSING.
THE CLOSING SHALL OCCUR AT THE OFFICES OF
MANATT PHELPS & PHILLIPS, LLP, OR SUCH OTHER LOCATION AS THE PARTIES SHALL
MUTUALLY AGREE.
(C) IT IS THE PURCHASER'S RESPONSIBILITY TO (A) MAKE THE NECESSARY WIRE TRANSFER
OR CONFIRM THE PROPER ACCOUNT BALANCE IN A TIMELY MANNER AND (B) IF THE SHARES
ARE TO BE DELIVERED THROUGH THE DWAC SYSTEM, ARRANGE FOR SETTLEMENT BY WAY OF
DWAC IN A TIMELY MANNER.
IF THE PURCHASER DOES NOT DELIVER THE AGGREGATE
SUBSCRIPTION AMOUNT FOR THE SHARES OR DOES NOT MAKE PROPER ARRANGEMENTS FOR
SETTLEMENT IN A TIMELY MANNER, AS APPLICABLE, THE SHARES MAY NOT BE DELIVERED AT
CLOSING TO THE PURCHASER OR THE PURCHASER MAY BE EXCLUDED FROM THE CLOSING
ALTOGETHER.
2.2 CLOSING CONDITIONS; DELIVERIES.
(A) CONDITIONS TO THE PURCHASERS' OBLIGATIONS. THE OBLIGATION OF EACH PURCHASER
TO PURCHASE THE SHARES AND WARRANTS AT THE CLOSING IS SUBJECT TO THE FULFILLMENT
TO THE PURCHASERS' REASONABLE SATISFACTION, ON OR PRIOR TO THE CLOSING DATE, OF
THE FOLLOWING CONDITIONS, ANY OF WHICH MAY BE WAIVED IN WRITING BY THE
PURCHASERS:
(I)
THE REPRESENTATIONS AND WARRANTIES MADE BY THE COMPANY IN SECTION
3.1 HEREOF SHALL BE TRUE AND CORRECT EXCEPT WHERE THE FAILURE TO BE SO TRUE AND
CORRECT DOES NOT HAVE A MATERIAL ADVERSE EFFECT.
THE COMPANY SHALL HAVE
PERFORMED IN ALL MATERIAL RESPECTS ALL OBLIGATIONS AND CONDITIONS HEREIN
REQUIRED TO BE PERFORMED OR OBSERVED BY IT ON OR PRIOR TO THE CLOSING DATE.
(II)
THE COMPANY SHALL HAVE OBTAINED IN A TIMELY FASHION ANY AND ALL
MATERIAL CONSENTS, PERMITS, APPROVALS, REGISTRATIONS AND WAIVERS NECESSARY OR
APPROPRIATE FOR CONSUMMATION OF THE PURCHASE AND SALE OF THE SHARES AND
WARRANTS, ALL OF WHICH SHALL BE AND REMAIN SO