SUCH INVESTOR
PURSUANT TO SECTION 2.2(A)(I);
(III)
A CERTIFICATE OF THE TRANSFER AGENT WITH RESPECT TO THE
OUTSTANDING COMMON STOCK NUMBER OF THE COMPANY AS OF THE MOST RECENT PRACTICABLE
DATE;
(IV)
AN OFFICER'S CERTIFICATE AND SECRETARY CERTIFICATE, IN AGREED
FORM, DULY EXECUTED BY SUCH OFFICERS OF THE COMPANY;
(V)
CERTIFICATES OF GOOD STANDING OF THE COMPANY IN ITS JURISDICTION
OF INCORPORATION AND IN EACH JURISDICTION IN WHICH QUALIFICATION TO DO BUSINESS
AS A FOREIGN CORPORATION IS REQUIRED, EXCEPT WHERE FAILURE TO SO QUALIFY WOULD
NOT HAVE A MATERIAL ADVERSE EFFECT;
(VI)
THE LEGAL OPINION OF COMPANY COUNSEL, IN AGREED FORM, ADDRESSED TO
THE INVESTORS;
(VII)
THE REGISTRATION RIGHTS AGREEMENT, DULY EXECUTED BY THE COMPANY;
AND
(VIII)
WITH RESPECT TO EACH INVESTOR THAT IS A PRIOR INVESTOR, THE
WARRANT AMENDMENT AGREEMENT, DULY EXECUTED BY THE COMPANY.
(B)
AT THE CLOSING, EACH INVESTOR SHALL DELIVER OR CAUSE TO BE
DELIVERED TO THE COMPANY THE FOLLOWING (THE "INVESTOR DELIVERABLES"):
(I)
ITS INVESTMENT AMOUNT, IN UNITED STATES DOLLARS AND IN
IMMEDIATELY AVAILABLE FUNDS, BY WIRE TRANSFER TO AN ACCOUNT DESIGNATED IN
WRITING BY THE COMPANY FOR SUCH PURPOSE;
(II)
THE REGISTRATION RIGHTS AGREEMENT, DULY EXECUTED BY SUCH
INVESTOR; AND
(III)
WITH RESPECT TO EACH INVESTOR THAT IS A PRIOR INVESTOR, THE
WARRANT AMENDMENT AGREEMENT, DULY EXECUTED BY SUCH INVESTOR.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
3.1
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
THE COMPANY HEREBY
MAKES THE FOLLOWING REPRESENTATIONS AND WARRANTIES TO EACH INVESTOR:
(A)
SUBSIDIARIES.
THE COMPANY HAS NO DIRECT OR INDIRECT SUBSIDIARIES
OTHER THAN AS SPECIFIED IN THE SEC REPORTS.
THE COMPANY OWNS, DIRECTLY OR
INDIRECTLY, ALL OF THE
5
CAPITAL STOCK OF EACH SUBSIDIARY FREE AND CLEAR OF ANY AND ALL LIENS, AND ALL
THE ISSUED AND OUTSTANDING SHARES OF CAPITAL STOCK OF EACH SUBSIDIARY ARE
VALIDLY ISSUED AND ARE FULLY PAID, NON-ASSESSABLE AND FREE OF PREEMPTIVE AND
SIMILAR RIGHTS.
NEITHER THE COMPANY NOR ANY SUBSIDIARY IS PARTY TO ANY MATERIAL
JOINT VENTURE, NOR HAS ANY OWNERSHIP INTEREST IN ANY ENTITY THAT IS MATERIAL TO
THE COMPANY OR AS DISCLOSED IN THE SEC REPORTS.
(B)
ORGANIZATION AND QUALIFICATION.
THE COMPANY AND EACH SUBSIDIARY
ARE DULY INCORPORATED OR OTHERWISE ORGANIZED AND VALIDLY EXISTING UNDER THE LAWS
OF THE JURISDICTION OF ITS INCORPORATION OR ORGANIZATION (AS APPLICABLE), WITH
THE REQUISITE POWER AND AUTHORITY TO OWN AND USE ITS PROPERTIES AND ASSETS AND
TO CARRY ON ITS BUSINESS AS CURRENTLY CONDUCTED.
NEITHER THE COMPANY NOR ANY
SUBSIDIARY IS IN VIOLATION OF ANY OF THE MATERIAL PROVISIONS OF ITS RESPECTIVE
CERTIFICATE OR ARTICLES OF INCORPORATION, BYLAWS OR OTHER ORGANIZATIONAL OR
CHARTER DOCUMENTS.
THE COMPANY AND EACH SUBSIDIARY ARE DULY QUALIFIED TO
CONDUCT ITS RESPECTIVE BUSINESSES AND ARE 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, HAVE OR REASONABLY