THE PROVISIONS
OF THE SARBANES-OXLEY ACT OF 2002 WHICH ARE APPLICABLE TO IT, EXCEPT WHERE SUCH
NONCOMPLIANCE WOULD NOT HAVE, INDIVIDUALLY OR IN THE AGGREGATE, A MATERIAL
ADVERSE EFFECT. THE COMPANY MAINTAINS DISCLOSURE CONTROLS AND PROCEDURES (AS
SUCH TERM IS DEFINED IN RULE 13A-15(E) AND 15D-15(E) UNDER THE EXCHANGE ACT).
(W)
CERTAIN FEES. NO PERSON OR ENTITY WILL HAVE, AS A RESULT OF THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, ANY VALID RIGHT, INTEREST OR CLAIM
AGAINST OR UPON THE COMPANY OR A PURCHASER FOR ANY COMMISSION, FEE OR OTHER
COMPENSATION PURSUANT TO ANY AGREEMENT, ARRANGEMENT OR UNDERSTANDING ENTERED
INTO BY OR ON BEHALF OF THE COMPANY, OTHER THAN THE PLACEMENT AGENT WITH RESPECT
TO THE OFFER AND SALE OF THE SHARES (WHICH PLACEMENT AGENT FEES ARE BEING PAID
BY THE COMPANY). THE COMPANY SHALL INDEMNIFY, PAY, AND HOLD EACH PURCHASER
HARMLESS AGAINST, ANY LIABILITY, LOSS OR EXPENSE (INCLUDING, WITHOUT LIMITATION,
ATTORNEYS' FEES AND OUT-OF-POCKET EXPENSES) ARISING IN CONNECTION WITH ANY SUCH
RIGHT, INTEREST OR CLAIM.
(X)
PRIVATE PLACEMENT. ASSUMING THE ACCURACY OF THE PURCHASERS'
REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 3.2 OF THIS AGREEMENT AND
THE ACCURACY OF THE INFORMATION DISCLOSED IN THE ACCREDITED INVESTOR
QUESTIONNAIRES, NO REGISTRATION UNDER THE SECURITIES ACT IS REQUIRED FOR THE
OFFER AND SALE OF THE SHARES BY THE COMPANY TO THE PURCHASERS UNDER THE
TRANSACTION DOCUMENTS.
(Y)
REGISTRATION RIGHTS. OTHER THAN AS SET FORTH IN THE SEC REPORTS
AND OTHER THAN EACH OF THE PURCHASERS OR AS SET FORTH IN SCHEDULE 3.1(Y) HERETO,
NO PERSON HAS ANY RIGHT TO CAUSE THE COMPANY TO EFFECT THE REGISTRATION UNDER
THE SECURITIES ACT OF ANY SECURITIES OF THE COMPANY OTHER THAN THOSE SECURITIES
WHICH ARE CURRENTLY REGISTERED ON AN EFFECTIVE REGISTRATION STATEMENT ON FILE
WITH THE COMMISSION.
(Z)
NO INTEGRATED OFFERING. ASSUMING THE ACCURACY OF THE PURCHASERS'
REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 3.2, NONE OF THE COMPANY,
ITS SUBSIDIARIES NOR, TO THE COMPANY'S KNOWLEDGE, ANY OF ITS AFFILIATES OR ANY
PERSON ACTING ON ITS BEHALF HAS, DIRECTLY OR INDIRECTLY, AT ANY TIME WITHIN THE
PAST SIX MONTHS, MADE ANY OFFERS OR SALES OF ANY COMPANY SECURITY OR SOLICITED
ANY OFFERS TO BUY ANY SECURITY UNDER CIRCUMSTANCES THAT WOULD (I) ELIMINATE THE
AVAILABILITY OF THE EXEMPTION FROM REGISTRATION UNDER REGULATION D UNDER THE
SECURITIES ACT IN CONNECTION WITH THE OFFER AND SALE BY THE COMPANY OF THE
SHARES AS CONTEMPLATED HEREBY OR (II) CAUSE THE OFFERING OF THE SHARES PURSUANT
TO THE TRANSACTION DOCUMENTS
15
TO BE INTEGRATED WITH PRIOR OFFERINGS BY THE COMPANY FOR PURPOSES OF ANY
APPLICABLE LAW, REGULATION OR STOCKHOLDER APPROVAL PROVISIONS, INCLUDING,
WITHOUT LIMITATION, UNDER THE RULES AND REGULATIONS OF ANY TRADING MARKET ON
WHICH ANY OF THE SECURITIES OF THE COMPANY ARE LISTED OR DESIGNATED.
(AA)
LISTING AND MAINTENANCE REQUIREMENTS. THE COMPANY'S COMMON STOCK IS
REGISTERED PURSUANT TO SECTION 12(B) OR 12(G) OF THE EXCHANGE ACT, AND THE
COMPANY HAS TAKEN NO ACTION DESIGNED TO TERMINATE THE REGISTRATION OF THE COMMON
STOCK UNDER THE EXCHANGE ACT NOR HAS THE