OR WILL INCUR ANY
LIABILITY OR OBLIGATION, DIRECT OR CONTINGENT, NOT IN THE ORDINARY COURSE OF
BUSINESS, THAT IS MATERIAL TO THE COMPANY AND ITS SUBSIDIARY TAKEN AS A WHOLE;
(III) THERE HAS NOT BEEN ANY MATERIAL ADVERSE CHANGE IN THE BUSINESS,
PROPERTIES, MANAGEMENT, FINANCIAL POSITION, STOCKHOLDERS' EQUITY, OR RESULTS OF
OPERATIONS OF THE COMPANY AND ITS SUBSIDIARY, TAKEN AS A WHOLE; AND (IV) NEITHER
THE COMPANY NOR ITS SUBSIDIARY HAVE SUSTAINED ANY MATERIAL LOSS OR INTERFERENCE
WITH ITS BUSINESS FROM FIRE, EXPLOSION, FLOOD OR OTHER CALAMITY, WHETHER OR NOT
COVERED BY INSURANCE, OR FROM ANY LABOR DISTURBANCE OR DISPUTE OR ANY ACTION,
ORDER OR DECREE OF ANY COURT OR ARBITRATOR OR GOVERNMENTAL OR REGULATORY
AUTHORITY.
(J)
CAPITALIZATION.
THE ISSUED AND
OUTSTANDING SHARES OF CAPITAL STOCK OF THE COMPANY HAVE BEEN VALIDLY ISSUED, ARE
FULLY PAID AND NONASSESSABLE AND, OTHER THAN AS DISCLOSED IN OR CONTEMPLATED BY
THE REGISTRATION STATEMENT OR THE PROSPECTUS, ARE NOT SUBJECT TO ANY PREEMPTIVE
RIGHTS, RIGHTS OF FIRST REFUSAL OR SIMILAR RIGHTS.
THE COMPANY HAS AN
AUTHORIZED, ISSUED AND OUTSTANDING CAPITALIZATION AS SET FORTH IN THE
REGISTRATION STATEMENT AND THE PROSPECTUS AS OF THE DATES REFERRED TO THEREIN
(OTHER THAN THE GRANT OF ADDITIONAL OPTIONS UNDER THE COMPANY'S EXISTING STOCK
OPTION PLANS, OR CHANGES IN THE NUMBER OF OUTSTANDING SHARES OF COMMON STOCK OF
THE COMPANY DUE TO THE ISSUANCE OF SHARES UPON THE EXERCISE OR CONVERSION OF
SECURITIES EXERCISABLE FOR, OR CONVERTIBLE INTO, SHARES OF COMMON STOCK
OUTSTANDING ON THE DATE
7
HEREOF) AND SUCH AUTHORIZED CAPITAL STOCK CONFORMS TO THE DESCRIPTION THEREOF
SET FORTH IN THE REGISTRATION STATEMENT AND THE PROSPECTUS.
THE DESCRIPTION OF
THE SECURITIES OF THE COMPANY IN THE REGISTRATION STATEMENT AND THE PROSPECTUS
IS COMPLETE AND ACCURATE IN ALL MATERIAL RESPECTS.
EXCEPT AS DISCLOSED IN OR
CONTEMPLATED BY THE REGISTRATION STATEMENT OR THE PROSPECTUS, AS OF THE DATE
REFERRED TO THEREIN, THE COMPANY DOES NOT HAVE OUTSTANDING ANY OPTIONS TO
PURCHASE, OR ANY RIGHTS OR WARRANTS TO SUBSCRIBE FOR, OR ANY SECURITIES OR
OBLIGATIONS CONVERTIBLE INTO, OR EXCHANGEABLE FOR, OR ANY CONTRACTS OR
COMMITMENTS TO ISSUE OR SELL, ANY SHARES OF CAPITAL STOCK OR OTHER SECURITIES.
(K)
AUTHORIZATION; ENFORCEABILITY.
THE COMPANY
HAS FULL LEGAL RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND
PERFORM THE TRANSACTIONS CONTEMPLATED HEREBY.
THIS AGREEMENT HAS BEEN DULY
AUTHORIZED, EXECUTED AND DELIVERED BY THE COMPANY AND IS A LEGAL, VALID AND
BINDING AGREEMENT OF THE COMPANY ENFORCEABLE IN ACCORDANCE WITH ITS TERMS,
EXCEPT TO THE EXTENT THAT (I) ENFORCEABILITY MAY BE LIMITED BY BANKRUPTCY,
INSOLVENCY, REORGANIZATION, MORATORIUM OR SIMILAR LAWS AFFECTING CREDITORS'
RIGHTS GENERALLY AND BY GENERAL EQUITABLE PRINCIPLES AND (II) THE
INDEMNIFICATION AND CONTRIBUTION PROVISIONS OF SECTION 10 HEREOF MAY BE LIMITED
BY FEDERAL OR STATE SECURITIES LAWS AND PUBLIC POLICY CONSIDERATIONS IN RESPECT
THEREOF.
(L)
AUTHORIZATION OF PLACEMENT SHARES.
THE
PLACEMENT SHARES, WHEN ISSUED AND DELIVERED PURSUANT TO THE TERMS APPROVED BY
THE BOARD OF DIRECTORS OR A DULY DESIGNATED COMMITTEE THEREOF, AGAINST PAYMENT
THEREFOR AS PROVIDED HEREIN, WILL BE DULY