IS THERE ANY
BASIS FOR, THE DELISTING OF THE COMPANY COMMON STOCK FROM NASDAQ.
3.
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants to the Company that the following
representations are true and complete as of the date of the Closing, except as
otherwise indicated.
3.1.
AUTHORIZATION.
THE PURCHASER HAS FULL POWER AND AUTHORITY TO ENTER
INTO THIS AGREEMENT.
THIS AGREEMENT, WHEN EXECUTED AND DELIVERED BY THE
PURCHASER, SHALL CONSTITUTE VALID AND LEGALLY BINDING OBLIGATIONS OF THE
PURCHASER, ENFORCEABLE AGAINST THE PURCHASER IN ACCORDANCE WITH ITS RESPECTIVE
TERMS EXCEPT (I) AS LIMITED BY APPLICABLE BANKRUPTCY, INSOLVENCY,
REORGANIZATION, MORATORIUM, FRAUDULENT CONVEYANCE, OR OTHER LAWS OF GENERAL
APPLICATION RELATING TO OR AFFECTING THE ENFORCEMENT OF CREDITORS' RIGHTS
GENERALLY, (II) AS LIMITED BY LAWS RELATING TO THE AVAILABILITY OF SPECIFIC
PERFORMANCE, INJUNCTIVE RELIEF, OR OTHER EQUITABLE REMEDIES, OR (III) TO THE
EXTENT THE INDEMNIFICATION PROVISIONS CONTAINED IN THIS AGREEMENT MAY BE LIMITED
BY APPLICABLE FEDERAL OR STATE SECURITIES LAWS.
5
3.2.
TRADING.
THE PURCHASER HAS NOT TRADED IN COMPANY STOCK, OR
DERIVATIVE SECURITIES, IN THE 30-DAY PERIOD PRIOR TO OR DURING THE 10-DAY PERIOD
OVER WHICH THE ISSUE PRICE IS DETERMINED.
4.
CONDITIONS TO THE PURCHASER'S OBLIGATIONS AT CLOSING
The obligations of the Purchaser to purchase Shares at the Closing are subject
to the fulfillment, on or before the Closing, of each of the following
conditions, unless otherwise waived:
4.1.
REPRESENTATIONS AND WARRANTIES.
THE REPRESENTATIONS AND WARRANTIES
OF THE COMPANY CONTAINED IN SECTION 2 SHALL BE TRUE AND CORRECT IN ALL MATERIAL
RESPECTS AT AND AS OF SUCH CLOSING, EXCEPT THAT ANY SUCH REPRESENTATIONS AND
WARRANTIES SHALL BE TRUE AND CORRECT IN ALL RESPECTS WHERE SUCH REPRESENTATION
AND WARRANTY IS QUALIFIED WITH RESPECT TO MATERIALITY.
4.2.
PERFORMANCE.
THE COMPANY SHALL HAVE PERFORMED AND COMPLIED WITH
ALL COVENANTS, AGREEMENTS, OBLIGATIONS AND CONDITIONS CONTAINED IN THIS
AGREEMENT THAT ARE REQUIRED TO BE PERFORMED OR COMPLIED WITH BY THE COMPANY ON
OR BEFORE SUCH CLOSING, INCLUDING WITHOUT LIMITATION ALL FILINGS NECESSARY FOR
THE SHELF REGISTRATION OF THE SHARES.
4.3.
COMPLIANCE CERTIFICATE.
THE PRESIDENT OF THE COMPANY SHALL DELIVER
TO THE PURCHASER AT THE CLOSING A CERTIFICATE CERTIFYING THAT THE CONDITIONS
SPECIFIED IN SECTIONS 4.1 AND 4.2 HAVE BEEN FULFILLED.
4.4.
QUALIFICATIONS.
ALL AUTHORIZATIONS, APPROVALS OR PERMITS, IF ANY,
OF ANY GOVERNMENTAL AUTHORITY OR REGULATORY BODY OF THE UNITED STATES OR OF ANY
STATE THAT ARE REQUIRED IN CONNECTION WITH THE LAWFUL ISSUANCE, SALE,
REGISTRATION AND LISTING OF THE SHARES PURSUANT TO THIS AGREEMENT SHALL BE
OBTAINED AND EFFECTIVE AS OF SUCH CLOSING.
4.5.
LICENSE AGREEMENT.
THE COMPANY AND PURCHASER SHALL HAVE EXECUTED
AND DELIVERED THE LICENSE AGREEMENT.
4.6.
PROCEEDINGS AND DOCUMENTS.
ALL CORPORATE AND OTHER PROCEEDINGS IN
CONNECTION WITH THE TRANSACTIONS CONTEMPLATED AT THE CLOSING AND ALL DOCUMENTS
INCIDENT THERETO SHALL BE REASONABLY SATISFACTORY IN FORM AND SUBSTANCE TO THE
PURCHASER, AND THE PURCHASER (OR ITS COUNSEL) SHALL HAVE RECEIVED ALL SUCH
COUNTERPART ORIGINAL AND CERTIFIED OR OTHER COPIES OF SUCH DOCUMENTS AS
REASONABLY REQUESTED.
SUCH DOCUMENTS MAY INCLUDE GOOD STANDING