FORTH IN THIS AGREEMENT, IN THE
EVENT THAT THE COMPANY PAYS THE MAKE WHOLE AMOUNT (PLUS INTEREST, IF APPLICABLE)
IN RESPECT OF ANY SETTLEMENT DATE IN ACCORDANCE WITH THIS SECTION 3.7, SUCH
PAYMENT SHALL BE THE INVESTOR'S SOLE REMEDY IN RESPECT OF THE COMPANY'S FAILURE
TO DELIVER SHARES IN RESPECT OF SUCH SETTLEMENT DATE, AND THE COMPANY SHALL NOT
BE OBLIGATED TO DELIVER SUCH SHARES.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby makes the following representations and warranties to the
Investor:
8
SECTION 4.1
ORGANIZATION, GOOD STANDING AND POWER.
THE COMPANY IS A
CORPORATION DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS
OF THE STATE OF DELAWARE AND HAS ALL REQUISITE CORPORATE POWER AND AUTHORITY TO
OWN, LEASE AND OPERATE ITS PROPERTIES AND ASSETS AND TO CARRY ON ITS BUSINESS AS
NOW BEING CONDUCTED.
EXCEPT AS SET FORTH IN THE COMMISSION DOCUMENTS (AS
DEFINED BELOW), AS OF THE DATE HEREOF, THE COMPANY DOES NOT OWN MORE THAN FIFTY
PERCENT (50%) OF THE OUTSTANDING CAPITAL STOCK OF OR CONTROL ANY OTHER BUSINESS
ENTITY, OTHER THAN ANY WHOLLY-OWNED SUBSIDIARY THAT IS NOT "SIGNIFICANT" WITHIN
THE MEANING OF REGULATION S-X PROMULGATED BY THE COMMISSION.
THE COMPANY IS
DULY QUALIFIED AS A FOREIGN CORPORATION TO DO BUSINESS AND IS IN GOOD STANDING
IN EVERY JURISDICTION IN WHICH THE NATURE OF THE BUSINESS CONDUCTED OR PROPERTY
OWNED BY IT MAKES SUCH QUALIFICATION NECESSARY, OTHER THAN THOSE IN WHICH THE
FAILURE TO BE SO QUALIFIED OR BE IN GOOD STANDING WOULD NOT HAVE A MATERIAL
ADVERSE EFFECT.
SECTION 4.2
AUTHORIZATION; ENFORCEMENT.
(I) THE COMPANY HAS THE REQUISITE
CORPORATE POWER AND AUTHORITY TO ENTER INTO AND PERFORM ITS OBLIGATIONS UNDER
THIS AGREEMENT, THE REGISTRATION RIGHTS AGREEMENT AND THE WARRANT AND TO ISSUE
THE SHARES, THE WARRANT, THE WARRANT SHARES AND ANY BLACKOUT SHARES (EXCEPT TO
THE EXTENT THAT THE NUMBER OF BLACKOUT SHARES REQUIRED TO BE ISSUED EXCEEDS THE
NUMBER OF AUTHORIZED SHARES OF COMMON STOCK UNDER THE CHARTER); (II) THE
EXECUTION AND DELIVERY OF THIS AGREEMENT AND THE REGISTRATION RIGHTS AGREEMENT,
AND THE EXECUTION, ISSUANCE AND DELIVERY OF THE WARRANT, BY THE COMPANY AND THE
CONSUMMATION BY IT OF THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY HAVE BEEN
DULY AND VALIDLY AUTHORIZED BY ALL NECESSARY CORPORATE ACTION AND NO FURTHER
CONSENT OR AUTHORIZATION OF THE COMPANY OR ITS BOARD OF DIRECTORS OR
STOCKHOLDERS IS REQUIRED (OTHER THAN AS CONTEMPLATED BY SECTION 6.5); AND
(III) EACH OF THIS AGREEMENT AND THE REGISTRATION RIGHTS AGREEMENT HAS BEEN DULY
EXECUTED AND DELIVERED, AND THE WARRANT HAS BEEN DULY EXECUTED, ISSUED AND
DELIVERED, BY THE COMPANY AND CONSTITUTES A VALID AND BINDING OBLIGATION OF THE
COMPANY ENFORCEABLE AGAINST THE COMPANY IN ACCORDANCE WITH ITS TERMS, EXCEPT AS
SUCH ENFORCEABILITY MAY BE LIMITED BY APPLICABLE BANKRUPTCY, INSOLVENCY,
REORGANIZATION, MORATORIUM, LIQUIDATION, CONSERVATORSHIP, RECEIVERSHIP, OR
SIMILAR LAWS RELATING TO, OR AFFECTING GENERALLY THE ENFORCEMENT OF, CREDITORS'
RIGHTS AND REMEDIES OR INDEMNIFICATION OR BY OTHER EQUITABLE PRINCIPLES OF
GENERAL APPLICATION (INCLUDING ANY LIMITATION OF EQUITABLE REMEDIES).
SECTION