WARRANT SHARES REPRESENTED BY A CERTIFICATE HAVE BEEN REGISTERED UNDER AN
EFFECTIVE REGISTRATION STATEMENT FILED UNDER THE SECURITIES ACT, (B) A HOLDER OF
SECURITIES OR WARRANT SHARES PROVIDES THE COMPANY AND ITS TRANSFER AGENT WITH AN
OPINION OF COUNSEL, IN FORM, SUBSTANCE AND SCOPE CUSTOMARY FOR OPINIONS OF
COUNSEL IN COMPARABLE TRANSACTIONS, TO THE EFFECT THAT A PUBLIC SALE OR TRANSFER
OF SUCH SECURITIES OR WARRANT SHARES MAY BE MADE WITHOUT REGISTRATION UNDER THE
SECURITIES ACT AND SUCH SALE EITHER HAS OCCURRED OR MAY OCCUR WITHOUT
RESTRICTION ON THE MANNER OF SUCH SALE OR TRANSFER, (C) SUCH HOLDER PROVIDES THE
COMPANY AND ITS TRANSFER AGENT WITH REASONABLE ASSURANCES THAT SUCH SECURITIES
OR WARRANT
12
SHARES CAN BE SOLD UNDER RULE 144, OR (D) THE SECURITIES OR WARRANT SHARES
REPRESENTED BY A CERTIFICATE CAN BE SOLD WITHOUT RESTRICTION AS TO THE NUMBER OF
SECURITIES SOLD UNDER RULE 144(K), THE COMPANY WILL PERMIT THE TRANSFER OF THE
SECURITIES OR WARRANT SHARES, AND THE COMPANY'S TRANSFER AGENT WILL ISSUE ONE OR
MORE CERTIFICATES, FREE FROM ANY RESTRICTIVE LEGEND, IN SUCH NAME AND IN SUCH
DENOMINATIONS AS SPECIFIED BY SUCH HOLDER.
NOTWITHSTANDING ANYTHING HEREIN TO
THE CONTRARY, THE SECURITIES OR WARRANT SHARES MAY BE PLEDGED AS COLLATERAL IN
CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LENDING ARRANGEMENT;
PROVIDED, THAT SUCH PLEDGE WILL NOT ALTER THE PROVISIONS OF THIS ARTICLE V WITH
RESPECT TO THE REMOVAL OF RESTRICTIVE LEGENDS.
5.3
ENFORCEMENT OF PROVISION.
THE COMPANY
ACKNOWLEDGES THAT A BREACH BY IT OF ITS OBLIGATIONS HEREUNDER WILL CAUSE
IRREPARABLE HARM TO THE INVESTOR BY VITIATING THE INTENT AND PURPOSE OF THE
TRANSACTION CONTEMPLATED HEREBY.
ACCORDINGLY, THE COMPANY ACKNOWLEDGES THAT THE
REMEDY AT LAW FOR A BREACH OF ITS OBLIGATIONS UNDER THIS ARTICLE V WILL BE
INADEQUATE AND AGREES, IN THE EVENT OF A BREACH OR THREATENED BREACH BY THE
COMPANY OF THE PROVISIONS OF THIS SECTION, THAT THE INVESTOR WILL BE ENTITLED,
IN ADDITION TO ALL OTHER AVAILABLE REMEDIES, TO AN INJUNCTION RESTRAINING ANY
BREACH AND REQUIRING IMMEDIATE TRANSFER OF THE SECURITIES AND/OR WARRANT SHARES,
AS APPLICABLE, WITHOUT THE NECESSITY OF SHOWING ECONOMIC LOSS AND WITHOUT ANY
BOND OR OTHER SECURITY BEING REQUIRED.
ARTICLE VI
CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL
The obligation of the Company to issue and sell the Securities to each Investor
at the Closing is subject to the satisfaction by such Investor, on or before the
Closing Date, of each of the following conditions.
These conditions are for the
Company's sole benefit and may be waived by the Company at any time in its sole
discretion:
6.1
THE INVESTOR WILL HAVE EXECUTED THIS
AGREEMENT, THE INVESTOR QUESTIONNAIRE AND THE REGISTRATION RIGHTS AGREEMENT AND
WILL HAVE DELIVERED THOSE AGREEMENTS TO THE COMPANY.
6.2
THE INVESTOR WILL HAVE DELIVERED THE
PURCHASE PRICE FOR THE SECURITIES TO THE COMPANY IN ACCORDANCE WITH THIS
AGREEMENT.
6.3
THE REPRESENTATIONS AND WARRANTIES OF THE
INVESTOR MUST BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS AS OF THE CLOSING
DATE AS THOUGH MADE AT THAT