AND WARRANTIES SET FORTH IN SECTION 3.2, NO REGISTRATION UNDER
THE SECURITIES ACT IS REQUIRED FOR THE OFFER AND SALE OF THE SECURITIES BY THE
COMPANY TO THE PURCHASERS AS CONTEMPLATED HEREBY.
THE ISSUANCE AND SALE OF THE
SECURITIES HEREUNDER DOES NOT CONTRAVENE THE RULES AND REGULATIONS OF ANY
TRADING MARKET AND NO STOCKHOLDER APPROVAL IS REQUIRED FOR THE COMPANY TO
FULFILL ITS OBLIGATIONS UNDER THE TRANSACTION DOCUMENTS, INCLUDING ISSUING AND
DELIVERING TO THE PURCHASERS THE MAXIMUM NUMBER OF SECURITIES CONTEMPLATED BY
THIS AGREEMENT AND THE MAXIMUM NUMBER OF WARRANT SHARES ISSUABLE UPON EXERCISE
IN FULL OF THE WARRANTS BASED ON THEIR PRESENT EXERCISE PRICE.
(V)
LISTING AND MAINTENANCE REQUIREMENTS.
THE COMPANY HAS NOT, IN THE
TWO YEARS PRECEDING THE DATE HEREOF, RECEIVED NOTICE (WRITTEN OR ORAL) FROM ANY
TRADING MARKET ON WHICH THE COMMON STOCK IS OR HAS BEEN LISTED OR QUOTED TO THE
EFFECT THAT THE COMPANY IS NOT IN COMPLIANCE WITH THE LISTING OR MAINTENANCE
REQUIREMENTS OF SUCH TRADING MARKET.
THE COMPANY IS, AND HAS NO REASON TO
BELIEVE THAT IT WILL NOT IN THE FORESEEABLE FUTURE CONTINUE TO BE, IN COMPLIANCE
WITH ALL SUCH LISTING AND MAINTENANCE REQUIREMENTS OF THE TRADING MARKET.
(W)
INVESTMENT COMPANY. THE COMPANY IS NOT, AND IS NOT AN AFFILIATE OF,
AN "INVESTMENT COMPANY" WITHIN THE MEANING OF THE INVESTMENT COMPANY ACT OF
1940, AS AMENDED.
(X)
REGISTRATION RIGHTS.
THE COMPANY HAS NOT GRANTED OR AGREED TO
GRANT TO ANY PERSON ANY RIGHTS (INCLUDING "PIGGY-BACK" REGISTRATION RIGHTS) TO
HAVE ANY SECURITIES OF THE COMPANY REGISTERED WITH THE COMMISSION OR ANY OTHER
GOVERNMENTAL AUTHORITY THAT HAVE NOT BEEN SATISFIED.
(Y)
DISCLOSURE.
THE COMPANY CONFIRMS THAT, NEITHER THE COMPANY NOR
ANY OTHER PERSON ACTING ON ITS BEHALF HAS PROVIDED ANY OF THE PURCHASERS OR
THEIR AGENTS OR COUNSEL WITH ANY INFORMATION THAT CONSTITUTES OR MIGHT
CONSTITUTE MATERIAL, NON-PUBLIC INFORMATION.
THE COMPANY UNDERSTANDS AND
CONFIRMS THAT THE PURCHASERS WILL RELY ON THE FOREGOING REPRESENTATIONS AND
COVENANTS IN EFFECTING TRANSACTIONS IN SECURITIES OF THE COMPANY.
ALL
DISCLOSURE PROVIDED TO THE PURCHASERS REGARDING THE COMPANY, ITS BUSINESS AND
THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING THE DISCLOSURE SCHEDULES TO THIS
AGREEMENT, FURNISHED BY OR ON BEHALF OF THE COMPANY ARE TRUE AND CORRECT AND DO
NOT CONTAIN ANY UNTRUE STATEMENT OF A MATERIAL FACT OR OMIT TO STATE ANY
MATERIAL FACT NECESSARY IN ORDER TO MAKE THE STATEMENTS MADE THEREIN, IN LIGHT
OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING.
(Z)
FORM S-3 ELIGIBILITY.
THE COMPANY IS ELIGIBLE TO REGISTER FOR
RESALE OF ITS COMMON STOCK FOR RESALE BY THE PURCHASERS UNDER FORM S-3
PROMULGATED UNDER THE SECURITIES ACT.
11
3.2
Representations and Warranties of the Purchasers.
Each Purchaser hereby, for itself and for no other Purchaser, represents and
warrants to the Company as follows:
(A)
ORGANIZATION; AUTHORITY.
SUCH PURCHASER IS AN ENTITY DULY
ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE
JURISDICTION OF ITS ORGANIZATION WITH THE REQUISITE CORPORATE OR PARTNERSHIP
POWER AND AUTHORITY TO ENTER INTO AND TO CONSUMMATE THE