THE DATE HEREOF, AND ANY AND ALL APPLICABLE RULES AND
REGULATIONS PROMULGATED BY THE COMMISSION THEREUNDER THAT ARE EFFECTIVE AS OF
THE DATE HEREOF, EXCEPT WHERE SUCH NONCOMPLIANCE WOULD NOT HAVE, INDIVIDUALLY OR
IN THE AGGREGATE, A MATERIAL ADVERSE EFFECT.
Section 2.2
Representations, Warranties and
Covenants of the Purchasers.
Each of the Purchasers hereby makes the following
representations, warranties and covenants to and for the benefit of the Company
with respect solely to itself and not with respect to any other Purchaser:
(A)
ORGANIZATION AND STANDING OF THE
PURCHASERS. IF THE PURCHASER IS AN ENTITY, SUCH PURCHASER IS A CORPORATION,
LIMITED LIABILITY COMPANY OR PARTNERSHIP DULY INCORPORATED OR ORGANIZED, VALIDLY
EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE JURISDICTION OF ITS
INCORPORATION OR ORGANIZATION.
(B)
AUTHORIZATION AND POWER. EACH PURCHASER HAS
THE REQUISITE POWER AND AUTHORITY TO ENTER INTO AND PERFORM THIS AGREEMENT, THE
REGISTRATION RIGHTS AGREEMENT, THE WARRANTS, AND THE OTHER AGREEMENTS AND
DOCUMENTS CONTEMPLATED HEREBY AND THEREBY AND EXECUTED BY THE PURCHASER OR TO
WHICH THE PURCHASER IS PARTY (COLLECTIVELY, THE "PURCHASER TRANSACTION
DOCUMENTS") AND TO PURCHASE THE SHARES AND WARRANTS BEING SOLD TO IT HEREUNDER.
THE EXECUTION, DELIVERY AND PERFORMANCE OF THE PURCHASER TRANSACTION DOCUMENTS
BY EACH PURCHASER AND THE CONSUMMATION BY IT OF THE TRANSACTIONS CONTEMPLATED
HEREBY HAVE BEEN DULY AUTHORIZED BY ALL NECESSARY CORPORATE OR PARTNERSHIP
ACTION, AND NO FURTHER CONSENT OR AUTHORIZATION OF SUCH PURCHASER OR ITS BOARD
OF DIRECTORS, STOCKHOLDERS, OR PARTNERS, AS THE CASE MAY BE, IS REQUIRED. THIS
AGREEMENT HAS BEEN DULY AUTHORIZED, EXECUTED AND DELIVERED BY EACH PURCHASER.
EACH OF THE PURCHASER TRANSACTION DOCUMENTS CONSTITUTES, OR SHALL CONSTITUTE
WHEN EXECUTED AND DELIVERED, VALID AND BINDING OBLIGATIONS OF EACH PURCHASER
ENFORCEABLE AGAINST SUCH PURCHASER IN ACCORDANCE WITH ITS TERMS, EXCEPT AS SUCH
ENFORCEABILITY MAY BE LIMITED BY APPLICABLE BANKRUPTCY, INSOLVENCY,
REORGANIZATION, MORATORIUM, LIQUIDATION, CONSERVATORSHIP,
11
RECEIVERSHIP OR SIMILAR LAWS RELATING TO, OR AFFECTING GENERALLY THE ENFORCEMENT
OF, CREDITOR'S RIGHTS AND REMEDIES OR BY EQUITABLE PRINCIPLES OR REMEDIES OF
GENERAL APPLICATION.
(C)
ACQUISITION FOR INVESTMENT. EACH PURCHASER
IS PURCHASING THE SECURITIES SOLELY FOR ITS OWN ACCOUNT FOR THE PURPOSE OF
INVESTMENT AND NOT WITH A VIEW TO OR FOR SALE IN CONNECTION WITH ANY
DISTRIBUTION THEREOF. EACH PURCHASER DOES NOT HAVE A PRESENT INTENTION TO SELL
ANY OF THE SECURITIES, NOR A PRESENT ARRANGEMENT (WHETHER OR NOT LEGALLY
BINDING) OR INTENTION TO EFFECT ANY DISTRIBUTION OF ANY OF THE SECURITIES TO OR
THROUGH ANY PERSON OR ENTITY; PROVIDED, HOWEVER, THAT BY MAKING THE
REPRESENTATIONS HEREIN AND SUBJECT TO SECTION 2.2(E) BELOW, EACH PURCHASER DOES
NOT AGREE TO HOLD ANY OF THE SECURITIES FOR ANY MINIMUM OR OTHER SPECIFIC TERM
AND RESERVES THE RIGHT TO DISPOSE OF ANY OF THE SECURITIES AT ANY TIME IN
ACCORDANCE WITH FEDERAL AND STATE SECURITIES LAWS APPLICABLE TO SUCH DISPOSITION
PROVIDED THAT THE COMPANY RECEIVES AN OPINION OF THE PURCHASER'S COUNSEL, WHICH
OPINION AND COUNSEL SHALL BE REASONABLY SATISFACTORY TO THE COMPANY, TO THE
EFFECT THAT SUCH DISPOSITION COMPLIES WITH SUCH LAWS. EACH PURCHASER