Trust Co., Inc. or any successor transfer
agent for the Company.
"Transfer Agent Instructions" means, with respect to the Company, the
Irrevocable Transfer Agent Instructions, in the form of Exhibit E, executed by
the Company and delivered to and acknowledged in writing by the Transfer Agent.
"Warrants" has the meaning set forth in the Preamble.
"Warrant Shares" has the meaning set forth in the Preamble.
ARTICLE II
PURCHASE AND SALE
2.1
CLOSING.
SUBJECT TO THE TERMS AND
CONDITIONS SET FORTH IN THIS AGREEMENT, AT THE CLOSING, THE COMPANY SHALL CAUSE
TO BE SOLD TO EACH INVESTOR, AND EACH INVESTOR SHALL, SEVERALLY AND NOT JOINTLY,
PURCHASE FROM THE COMPANY, SUCH NUMBER OF COMMON SHARES AND WARRANTS SET FORTH
OPPOSITE SUCH INVESTOR'S NAME ON EXHIBIT A.
THE DATE AND TIME OF THE CLOSING
SHALL BE 10:00 A.M., NEW YORK CITY TIME, ON THE CLOSING DATE.
THE CLOSING SHALL
TAKE PLACE AT THE OFFICES OF THE COMPANY'S COUNSEL.
2.2
CLOSING DELIVERIES.
(A)
AT THE CLOSING, THE COMPANY SHALL DELIVER
OR CAUSE TO BE DELIVERED TO EACH INVESTOR THE FOLLOWING:
5
(I)
ONE OR MORE STOCK CERTIFICATES,
REGISTERED IN THE NAME OF SUCH INVESTOR, FREE AND CLEAR OF ALL RESTRICTIVE AND
OTHER LEGENDS (EXCEPT AS EXPRESSLY PROVIDED IN SECTION 4.1(B) HEREOF),
EVIDENCING SUCH NUMBER OF COMMON SHARES SET FORTH OPPOSITE SUCH INVESTOR'S NAME
ON EXHIBIT A HERETO.
(II)
A WARRANT, ISSUED IN THE NAME OF SUCH
INVESTOR, PURSUANT TO WHICH SUCH INVESTOR SHALL HAVE THE RIGHT TO ACQUIRE SUCH
NUMBER OF WARRANT SHARES SET FORTH OPPOSITE SUCH INVESTOR'S NAME ON EXHIBIT A
HERETO.
(III)
A LEGAL OPINION OF COMPANY COUNSEL, IN THE
FORM OF EXHIBIT C, EXECUTED BY SUCH COUNSEL AND DELIVERED TO THE INVESTORS;
(IV)
DULY EXECUTED TRANSFER AGENT INSTRUCTIONS
ACKNOWLEDGED BY THE COMPANY'S TRANSFER AGENT; AND
(v)
the Lock-up Agreements.
(B)
AT THE CLOSING, EACH INVESTOR SHALL DELIVER
OR CAUSE TO BE DELIVERED TO THE COMPANY THE PURCHASE PRICE FOR THE COMMON SHARES
AND THE WARRANTS BEING PURCHASED HEREUNDER BY THAT INVESTOR IN UNITED STATES
DOLLARS AND IN IMMEDIATELY AVAILABLE FUNDS, BY WIRE TRANSFER TO AN ACCOUNT
DESIGNATED IN WRITING TO SUCH INVESTOR BY THE COMPANY FOR SUCH PURPOSE.
2.3
PURCHASE PRICE.
THE PURCHASE PRICE TO BE
PAID BY THE INVESTORS FOR THE SECURITIES IS ALSO SET FORTH IN EXHIBIT A ATTACHED
HERETO.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1
REPRESENTATIONS AND WARRANTIES OF THE
COMPANY.
THE COMPANY HEREBY REPRESENTS AND WARRANTS TO THE INVESTORS AS FOLLOWS
(WHICH REPRESENTATIONS AND WARRANTIES SHALL BE DEEMED TO APPLY, WHERE
APPROPRIATE, TO EACH SUBSIDIARY OF THE COMPANY):
(A)
SUBSIDIARIES.
THE COMPANY HAS NO DIRECT OR
INDIRECT SUBSIDIARIES OTHER THAN THOSE LISTED IN SCHEDULE 3.1(A) HERETO.
EXCEPT
AS DISCLOSED IN SCHEDULE 3.1(A) HERETO, THE COMPANY OWNS, DIRECTLY OR
INDIRECTLY, ALL OF THE CAPITAL STOCK OR COMPARABLE EQUITY INTERESTS OF EACH
SUBSIDIARY FREE AND CLEAR OF ANY LIEN AND ALL THE ISSUED AND OUTSTANDING SHARES
OF CAPITAL STOCK OR COMPARABLE EQUITY INTEREST OF EACH SUBSIDIARY ARE VALIDLY
ISSUED AND ARE FULLY PAID, NON-ASSESSABLE AND FREE OF PREEMPTIVE