AGREEMENT, TRUST
INDENTURE OR OTHER AGREEMENT OR INSTRUMENT TO WHICH THE COMPANY IS A PARTY OR BY
WHICH IT IS BOUND OR TO WHICH ANY OF ITS PROPERTIES OR ASSETS IS SUBJECT; OR
(C)
ANY DECREE, ORDER, STATUTE, LAW, RULE, REGULATION OR JUDGMENT
APPLICABLE TO THE COMPANY.
4.4
ISSUANCE AND DELIVERY OF THE SECURITIES.
THE SHARES OF COMMON
STOCK TO BE ISSUED AT THE CLOSING HAVE BEEN DULY AUTHORIZED AND, WHEN ISSUED AND
PAID FOR IN COMPLIANCE WITH THE PROVISIONS OF THIS AGREEMENT, WILL BE VALIDLY
ISSUED, FULLY PAID AND NONASSESSABLE.
THE WARRANTS AND THE ADDITIONAL WARRANTS,
WHEN ISSUED AND PAID FOR IN COMPLIANCE WITH THE PROVISIONS OF THIS AGREEMENT,
WILL CONSTITUTE A LEGAL, VALID AND BINDING OBLIGATION OF THE COMPANY,
ENFORCEABLE IN ACCORDANCE WITH THEIR TERMS, EXCEPT THAT (A) ENFORCEABILITY MAY
BE LIMITED BY APPLICABLE BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM OR
SIMILAR LAWS RELATING TO OR AFFECTING THE ENFORCEMENT OF CREDITORS' RIGHTS
GENERALLY, AND (B) ENFORCEABILITY MAY BE LIMITED BY EQUITABLE PRINCIPLES
GENERALLY.
THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THE WARRANTS
AND THE ADDITIONAL WARRANTS (THE "WARRANT SHARES") HAVE BEEN DULY AUTHORIZED
AND, WHEN ISSUED IN COMPLIANCE WITH THE WARRANTS AND THE ADDITIONAL WARRANTS,
WILL BE VALIDLY ISSUED, FULLY PAID AND NONASSESSABLE.
THE ISSUANCE AND DELIVERY
OF THE SECURITIES AND ANY WARRANT SHARES IS NOT SUBJECT TO PREEMPTIVE, CO-SALE,
RIGHT OF FIRST REFUSAL OR ANY OTHER SIMILAR RIGHTS OF OR IN FAVOR OF ANY PERSON,
GROUP OR ENTITY.
4.5
SEC DOCUMENTS; FINANCIAL STATEMENTS; NO MATERIAL MISSTATEMENTS.
THE COMPANY HAS FILED IN A TIMELY MANNER ALL DOCUMENTS REQUIRED TO BE FILED BY
IT WITH THE SECURITIES AND EXCHANGE COMMISSION (THE "COMMISSION" OR THE "SEC")
UNDER SECTIONS 13, 14(A) OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED (THE "EXCHANGE ACT").
SUCH DOCUMENTS ARE REFERRED TO COLLECTIVELY
HEREIN AS THE "SEC DOCUMENTS."
AS OF THEIR RESPECTIVE FILING DATES (OR, IF
AMENDED OR SUPPLEMENTED PRIOR TO THE DATE OF THIS AGREEMENT, WHEN SO AMENDED OR
SUPPLEMENTED), ALL SEC DOCUMENTS COMPLIED IN ALL MATERIAL RESPECTS WITH THE
REQUIREMENTS OF THE EXCHANGE ACT.
NONE OF THE SEC DOCUMENTS AS OF ITS
RESPECTIVE DATE OF FILING CONTAINED ANY UNTRUE STATEMENT OF MATERIAL FACT OR
OMITTED TO STATE A MATERIAL FACT REQUIRED TO BE STATED THEREIN OR NECESSARY TO
MAKE THE STATEMENTS MADE THEREIN, IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY
WERE MADE, NOT MISLEADING.
THE FINANCIAL STATEMENTS OF THE COMPANY INCLUDED IN
THE SEC DOCUMENTS (AS RESTATED PRIOR TO THE DATE OF THIS AGREEMENT, THE
"FINANCIAL STATEMENTS") COMPLY AS TO FORM IN ALL MATERIAL RESPECTS WITH
APPLICABLE ACCOUNTING REQUIREMENTS AND WITH THE PUBLISHED RULES AND REGULATIONS
OF THE SEC WITH RESPECT THERETO.
THE FINANCIAL STATEMENTS HAVE BEEN PREPARED IN
ACCORDANCE WITH UNITED STATES GENERALLY ACCEPTED ACCOUNTING PRINCIPLES ("GAAP")
CONSISTENTLY APPLIED FOR THE PERIODS PRESENTED AND FAIRLY PRESENT THE FINANCIAL
POSITION OF THE COMPANY AT AND AS OF THE DATES THEREOF AND THE RESULTS OF ITS
OPERATIONS AND CASH FLOWS FOR THE PERIODS THEN ENDED (SUBJECT, IN THE CASE OF
UNAUDITED