THE RESULTS OF
OPERATIONS, ASSETS, BUSINESS OR FINANCIAL CONDITION OF THE COMPANY AND THE
SUBSIDIARIES, TAKEN AS A WHOLE, OR (III) ADVERSELY IMPAIR THE COMPANY'S ABILITY
TO PERFORM FULLY ON A TIMELY BASIS ITS OBLIGATIONS UNDER ANY OF THE TRANSACTION
DOCUMENTS (ANY OF (I), (II) OR (III), A "MATERIAL ADVERSE EFFECT").
(B)
FILINGS, CONSENTS AND APPROVALS; ISSUANCE OF
SECURITIES.
NEITHER THE COMPANY NOR ANY SUBSIDIARY IS REQUIRED TO OBTAIN ANY
CONSENT, WAIVER, AUTHORIZATION OR ORDER OF, GIVE ANY NOTICE TO, OR MAKE ANY
FILING OR REGISTRATION WITH, ANY COURT OR OTHER FEDERAL, STATE, LOCAL OR OTHER
GOVERNMENTAL AUTHORITY OR OTHER PERSON IN CONNECTION WITH THE EXECUTION,
DELIVERY AND PERFORMANCE BY THE COMPANY OF THE TRANSACTION DOCUMENTS, OTHER THAN
(I) THE FILINGS OF A FORM 8-K DISCLOSING THE TRANSACTION CONTEMPLATED HEREBY,
(II) THE FILING WITH THE SEC OF THE PROSPECTUS SUPPLEMENT REQUIRED BY THE
REGISTRATION STATEMENT PURSUANT TO RULE 424(B) UNDER THE SECURITIES ACT OF 1933
ACT, AS AMENDED (THE "1933 ACT") (THE "PROSPECTUS SUPPLEMENT") SUPPLEMENTING THE
BASE PROSPECTUS FORMING PART OF THE REGISTRATION STATEMENT (THE "PROSPECTUS"),
(III) THE APPLICATION(S) TO THE NASDAQ NATIONAL MARKET (THE "PRINCIPAL MARKET")
FOR THE LISTING OF THE PURCHASED SHARES AND THE WARRANT SHARES FOR TRADING
THEREON IN THE TIME AND MANNER REQUIRED THEREBY, AND (IV) APPLICABLE BLUE SKY
FILINGS (COLLECTIVELY, THE "REQUIRED APPROVALS"). "PERSON" MEANS AN INDIVIDUAL
OR CORPORATION, PARTNERSHIP, TRUST, INCORPORATED OR UNINCORPORATED ASSOCIATION,
JOINT VENTURE, LIMITED LIABILITY COMPANY, JOINT STOCK COMPANY, GOVERNMENT (OR AN
AGENCY OR SUBDIVISION THEREOF) OR OTHER ENTITY OF ANY KIND. THE SECURITIES ARE
DULY AUTHORIZED AND, WHEN ISSUED AND PAID FOR IN ACCORDANCE WITH THE APPLICABLE
TRANSACTION DOCUMENTS, WILL BE DULY AND VALIDLY ISSUED, FULLY PAID AND
NONASSESSABLE, FREE AND CLEAR OF ALL LIENS. THE COMPANY HAS RESERVED FROM ITS
DULY AUTHORIZED CAPITAL STOCK A SUFFICIENT NUMBER OF WARRANT SHARES TO ENABLE IT
TO COMPLY WITH ITS EXERCISE OBLIGATIONS UNDER THE WARRANTS. THE ISSUANCE BY THE
COMPANY OF THE SECURITIES HAS BEEN REGISTERED UNDER THE 1933 ACT AND ALL OF THE
SECURITIES ARE FREELY TRANSFERABLE AND TRADABLE BY THE PURCHASER WITHOUT
RESTRICTION.
3
THE SHARES AND WARRANTS ARE BEING ISSUED PURSUANT TO THE REGISTRATION STATEMENT
AND THE ISSUANCE OF THE SHARES, THE WARRANTS AND THE WARRANT SHARES HAS BEEN
REGISTERED BY THE COMPANY UNDER THE 1933 ACT. THE REGISTRATION STATEMENT IS
EFFECTIVE AND AVAILABLE FOR THE ISSUANCE OF THE SECURITIES THEREUNDER AND THE
COMPANY HAS NOT RECEIVED ANY NOTICE THAT THE SEC HAS ISSUED OR INTENDS TO ISSUE
A STOP-ORDER WITH RESPECT TO THE REGISTRATION STATEMENT OR THAT THE SEC
OTHERWISE HAS SUSPENDED OR WITHDRAWN THE EFFECTIVENESS OF THE REGISTRATION
STATEMENT, EITHER TEMPORARILY OR PERMANENTLY, OR INTENDS OR HAS THREATENED IN
WRITING TO DO SO. THE "PLAN OF DISTRIBUTION" SECTION UNDER THE REGISTRATION
STATEMENT PERMITS THE ISSUANCE AND SALE OF THE SECURITIES HEREUNDER AND UNDER
THE WARRANTS. UPON RECEIPT OF THE SECURITIES, THE PURCHASER WILL HAVE GOOD AND
MARKETABLE TITLE TO SUCH SECURITIES AND THE SHARES AND, UPON EXERCISE OF THE
WARRANTS, THE WARRANT SHARES WILL BE FREELY