IN ALL MATERIAL RESPECTS AS OF THE CLOSING DATE AS IF MADE ON SUCH
DATE (EXCEPT THAT TO THE EXTENT THAT ANY SUCH REPRESENTATION OR WARRANTY RELATES
TO A PARTICULAR DATE, SUCH REPRESENTATION OR WARRANTY SHALL BE TRUE AND CORRECT
IN ALL MATERIAL RESPECTS AS OF THAT DATE);
23
5.2.2
SUCH INVESTOR SHALL HAVE COMPLIED WITH OR PERFORMED
ALL OF THE AGREEMENTS, OBLIGATIONS AND CONDITIONS SET FORTH IN THIS AGREEMENT
THAT ARE REQUIRED TO BE COMPLIED WITH OR PERFORMED BY SUCH INVESTOR ON OR BEFORE
THE CLOSING;
5.2.3
THERE SHALL BE NO INJUNCTION, RESTRAINING ORDER OR
DECREE OF ANY NATURE OF ANY COURT OR GOVERNMENT AUTHORITY OF COMPETENT
JURISDICTION THAT IS IN EFFECT THAT RESTRAINS OR PROHIBITS THE CONSUMMATION OF
THE TRANSACTIONS CONTEMPLATED HEREBY AND BY THE OTHER TRANSACTION DOCUMENTS;
5.2.4
SUCH INVESTOR SHALL HAVE EXECUTED EACH TRANSACTION
DOCUMENT TO WHICH IT IS A PARTY AND SHALL HAVE DELIVERED THE SAME TO THE
COMPANY; AND
5.2.5
SUCH INVESTOR SHALL HAVE TENDERED TO THE COMPANY
THE PURCHASE PRICE FOR THE SHARES AND THE WARRANTS BEING PURCHASED BY IT AT THE
CLOSING BY WIRE TRANSFER OF IMMEDIATELY AVAILABLE FUNDS IN ACCORDANCE WITH THE
WIRE TRANSFER INSTRUCTIONS SET FORTH ON EXHIBIT E HERETO.
6.
MISCELLANEOUS.
6.1
SURVIVAL; SEVERABILITY.
THE REPRESENTATIONS, WARRANTIES,
COVENANTS AND INDEMNITIES MADE BY THE PARTIES HEREIN AND IN THE OTHER
TRANSACTION DOCUMENTS SHALL SURVIVE THE CLOSING (PROVIDED THAT SUCH
REPRESENTATIONS AND WARRANTIES SHALL SURVIVE ONLY FOR A PERIOD OF TWO YEARS
AFTER THE CLOSING), NOTWITHSTANDING ANY DUE DILIGENCE INVESTIGATION MADE BY OR
ON BEHALF OF THE PARTY SEEKING TO RELY THEREON.
IN THE EVENT THAT ANY PROVISION
OF THIS AGREEMENT BECOMES OR IS DECLARED BY A COURT OF COMPETENT JURISDICTION TO
BE ILLEGAL, UNENFORCEABLE OR VOID, THIS AGREEMENT SHALL CONTINUE IN FULL FORCE
AND EFFECT WITHOUT SAID PROVISION; PROVIDED THAT IN SUCH CASE THE PARTIES SHALL
NEGOTIATE IN GOOD FAITH TO REPLACE SUCH PROVISION WITH A NEW PROVISION WHICH IS
NOT ILLEGAL, UNENFORCEABLE OR VOID, AS LONG AS SUCH NEW PROVISION DOES NOT
MATERIALLY CHANGE THE ECONOMIC BENEFITS OF THIS AGREEMENT TO THE PARTIES.
6.2
SUCCESSORS AND ASSIGNS.
THE TERMS AND CONDITIONS OF THIS
AGREEMENT SHALL INURE TO THE BENEFIT OF AND BE BINDING UPON THE RESPECTIVE
SUCCESSORS AND PERMITTED ASSIGNS OF THE PARTIES.
NOTHING IN THIS AGREEMENT,
EXPRESS OR IMPLIED, IS INTENDED TO CONFER UPON ANY PARTY OTHER THAN THE PARTIES
HERETO OR THEIR RESPECTIVE SUCCESSORS AND PERMITTED ASSIGNS ANY RIGHTS,
REMEDIES, OBLIGATIONS OR LIABILITIES UNDER OR BY REASON OF THIS AGREEMENT,
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT.
THE INVESTORS MAY ASSIGN THEIR
RESPECTIVE RIGHTS AND OBLIGATIONS HEREUNDER, IN CONNECTION WITH ANY PRIVATE SALE
OR TRANSFER OF THE SHARES OR WARRANTS IN ACCORDANCE WITH THE TERMS HEREOF, AS
LONG AS, AS A CONDITION PRECEDENT TO SUCH TRANSFER, THE TRANSFEREE EXECUTES AN
ACKNOWLEDGMENT AGREEING TO BE BOUND BY THE APPLICABLE PROVISIONS OF THIS
AGREEMENT, IN WHICH CASE THE TERM "INVESTOR" SHALL BE DEEMED TO REFER TO SUCH
TRANSFEREE AS THOUGH SUCH TRANSFEREE WERE AN ORIGINAL SIGNATORY HERETO.
THE