PURCHASE
AGREEMENT BY AND AMONG THE COMPANY AND THE PURCHASERS (THE "PURCHASERS") IN THE
OFFERING (THE "SECURITIES PURCHASE AGREEMENT," TOGETHER WITH THIS AGREEMENT AND
THE WARRANTS, THE "TRANSACTION DOCUMENTS"), THE COMPANY SHALL PREPARE AND FILE,
WITHIN THIRTY (30) DAYS AFTER THE CLOSING DATE (AS DEFINED BELOW), A
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, WHICH REGISTRATION STATEMENT
SHALL COVER THE OFFER AND RESALE OF THE SHARES, THE COMMON STOCK WARRANTS AND
THE WARRANT SHARES.
THE COMPANY SHALL USE ITS BEST EFFORTS TO CAUSE THE
REGISTRATION STATEMENT TO BECOME EFFECTIVE UNDER THE SECURITIES ACT IN
ACCORDANCE WITH THE SECURITIES PURCHASE AGREEMENT.
2.
REPRESENTATIONS AND WARRANTIES OF THE PLACEMENT AGENT.
IN
OFFERING THE UNITS FOR SALE, THE PLACEMENT AGENT PROPOSES TO OFFER THE UNITS
SOLELY AS AGENT FOR THE COMPANY FOR SALE TO ACCREDITED INVESTORS UPON THE TERMS
SET FORTH IN THE EXECUTIVE SUMMARY.
THE PLACEMENT AGENT REPRESENTS AND WARRANTS
TO THE COMPANY THAT, ASSUMING COMPLIANCE BY THE COMPANY WITH ALL RELEVANT
PROVISIONS OF THE SECURITIES ACT, THE PLACEMENT AGENT WILL CONDUCT ALL OFFERS
AND SALES OF THE UNITS IN COMPLIANCE WITH THE RELEVANT PROVISIONS OF THE
SECURITIES ACT AND THE RULES AND REGULATIONS, ALL APPLICABLE STATE SECURITIES
LAWS AND REGULATIONS AND THE BYLAWS AND RULES OF THE NATIONAL ASSOCIATION OF
SECURITIES DEALERS, INC. (THE "NASD").
THE PLACEMENT AGENT REPRESENTS AND
WARRANTS TO THE COMPANY THAT THE PLACEMENT AGENT IS AUTHORIZED TO ENTER INTO
THIS AGREEMENT AND TO ACT IN THE MANNER PROVIDED IN THIS AGREEMENT.
3.
REPRESENTATIONS AND WARRANTIES.
THE COMPANY (WHICH FOR PURPOSES
OF THIS SECTION 3 INCLUDES ITS SUBSIDIARIES, AS APPLICABLE) HEREBY REPRESENTS
AND WARRANTS TO THE PLACEMENT AGENT THAT, EXCEPT AS DISCLOSED IN THE COMMISSION
DOCUMENTS:
(A)
THE COMPANY IS A CORPORATION DULY ORGANIZED, VALIDLY EXISTING AND
IN GOOD STANDING UNDER THE LAWS OF THE STATE OF DELAWARE. THE COMPANY HAS FULL
CORPORATE POWER AND AUTHORITY TO OWN AND HOLD ITS PROPERTIES AND TO CONDUCT ITS
BUSINESS.
THE COMPANY IS DULY LICENSED OR QUALIFIED TO DO BUSINESS, AND IN GOOD
STANDING, IN EACH JURISDICTION IN WHICH THE NATURE OF ITS BUSINESS REQUIRES
LICENSING, QUALIFICATION OR GOOD STANDING, EXCEPT FOR ANY FAILURE TO BE SO
LICENSED OR QUALIFIED OR IN GOOD STANDING THAT WOULD NOT HAVE A MATERIAL ADVERSE
EFFECT ON THE COMPANY AND EACH SUBSIDIARY OF THE COMPANY TAKEN AS A WHOLE (EACH
SUCH CORPORATION, PARTNERSHIP OR OTHER ENTITY BEING REFERRED TO HEREIN AS A
"SUBSIDIARY" AND, TOGETHER, THE "SUBSIDIARIES") OR ITS CONSOLIDATED RESULTS OF
OPERATIONS, ASSETS, OR FINANCIAL CONDITION OR ON ITS ABILITY TO PERFORM ITS
OBLIGATIONS UNDER THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (A
"MATERIAL ADVERSE EFFECT").
2
(B)
SCHEDULE 6.1(B) OF THE SECURITIES PURCHASE AGREEMENT CONTAINS A
LIST OF THE NAMES OF EACH SUBSIDIARY.
SCHEDULE 6.1(B) OF THE SECURITIES
PURCHASE AGREEMENT SETS FORTH, WITH RESPECT TO EACH SUBSIDIARY, ITS TYPE OF
ENTITY AND THE JURISDICTION OF ITS ORGANIZATION.
EACH SUBSIDIARY IS WHOLLY
OWNED BY THE COMPANY.
EACH OF THE OUTSTANDING SHARES OF CAPITAL STOCK OF EACH
OF THE SUBSIDIARIES IS DULY AUTHORIZED, VALIDLY ISSUED,