SUCH PURCHASER AS INDICATED ON SCHEDULE A HERETO UNDER THE HEADING
"INITIAL UNITS-INITIAL WARRANT SHARES;"
(III)
A UNIT WARRANT, REGISTERED IN THE NAME OF
SUCH PURCHASER, AS SET FORTH IN SECTION 2.1(B) ABOVE, ENTITLING SUCH PURCHASER
TO SUBSCRIBE FOR (I) THAT NUMBER OF SHARES AS INDICATED ON SCHEDULE A HERETO
UNDER THE HEADING "ADDITIONAL UNITS -ADDITIONAL SHARES", AND (II) A WARRANT
EXERCISABLE FOR THAT NUMBER OF SHARES OF COMMON STOCK AS INDICATED ON SCHEDULE A
HERETO UNDER THE HEADING "ADDITIONAL UNITS-ADDITIONAL WARRANT SHARES;"
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(IV)
EVIDENCE THAT THE CERTIFICATE OF DESIGNATIONS
HAS BEEN FILED AND BECOME EFFECTIVE ON OR PRIOR TO THE CLOSING DATE WITH THE
SECRETARY OF STATE OF THE STATE OF DELAWARE, IN FORM AND SUBSTANCE MUTUALLY
AGREED TO BY THE PARTIES;
(V)
THE LEGAL OPINION OF COMPANY COUNSEL, IN THE
FORM OF EXHIBIT E-1, EXECUTED BY SUCH COUNSEL AND DELIVERED TO THE PURCHASERS;
AND THE LEGAL OPINION OF THE GENERAL COUNSEL OF THE COMPANY, IN THE FORM OF
EXHIBIT E-2, EXECUTED BY SUCH COUNSEL AND DELIVERED TO THE PURCHASERS;
(VI)
THE REGISTRATION RIGHTS AGREEMENT DULY
EXECUTED BY THE COMPANY;
(VII)
DULY EXECUTED TRANSFER AGENT INSTRUCTIONS
ACKNOWLEDGED BY THE COMPANY'S TRANSFER AGENT; AND
(VIII)
ANY OTHER DOCUMENTS REASONABLY REQUESTED BY THE
PURCHASERS OR PROSKAUER ROSE LLP IN CONNECTION WITH THE CLOSING.
(B)
AT THE CLOSING, EACH PURCHASER SHALL DELIVER
OR CAUSE TO BE DELIVERED TO THE COMPANY THE FOLLOWING:
(I)
THE PURCHASE PRICE SET FORTH OPPOSITE
SUCH PURCHASER'S NAME ON SCHEDULE A HERETO UNDER THE HEADING "PURCHASE PRICE,"
IN UNITED STATES DOLLARS AND IN IMMEDIATELY AVAILABLE FUNDS, BY WIRE TRANSFER TO
AN ACCOUNT DESIGNATED IN WRITING BY THE COMPANY FOR SUCH PURPOSE; AND
(II)
THE REGISTRATION RIGHTS AGREEMENT DULY
EXECUTED BY SUCH PURCHASER.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1
REPRESENTATIONS AND WARRANTIES OF THE
COMPANY.
THE COMPANY HEREBY MAKES THE FOLLOWING REPRESENTATIONS AND WARRANTIES
TO EACH OF THE PURCHASERS:
(A)
SUBSIDIARIES.
THE COMPANY DOES NOT
DIRECTLY OR INDIRECTLY CONTROL OR OWN ANY INTEREST IN ANY OTHER CORPORATION,
PARTNERSHIP, JOINT VENTURE OR OTHER BUSINESS ASSOCIATION OR ENTITY (OTHER THAN
INVESTMENTS IN FUNDS), OTHER THAN THOSE LISTED IN SCHEDULE 3.1(A).
EXCEPT AS
DISCLOSED IN SCHEDULE 3.1(A), THE COMPANY OWNS, DIRECTLY OR INDIRECTLY, ALL OF
THE CAPITAL STOCK OF EACH SUBSIDIARY FREE AND CLEAR OF ANY LIEN, AND ALL THE
ISSUED AND OUTSTANDING SHARES OF CAPITAL STOCK OF EACH SUBSIDIARY ARE VALIDLY
ISSUED AND ARE FULLY PAID, NON-ASSESSABLE AND FREE OF PREEMPTIVE AND SIMILAR
RIGHTS.
(B)
ORGANIZATION AND QUALIFICATION.
EACH OF THE
COMPANY AND THE SUBSIDIARIES IS AN ENTITY DULY INCORPORATED OR OTHERWISE
ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE
JURISDICTION OF ITS INCORPORATION OR ORGANIZATION (AS APPLICABLE), WITH THE
REQUISITE POWER AND AUTHORITY TO OWN AND USE ITS PROPERTIES AND ASSETS AND TO
CARRY ON ITS BUSINESS AS CURRENTLY CONDUCTED.
NEITHER THE COMPANY NOR ANY
SUBSIDIARY IS IN VIOLATION OF ANY
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OF THE PROVISIONS OF ITS RESPECTIVE CERTIFICATE OR ARTICLES OF INCORPORATION,
BYLAWS OR OTHER ORGANIZATIONAL OR CHARTER DOCUMENTS.
EACH OF THE