Markets or, if Bloomberg Financial Markets is not then reporting such
prices, by a comparable reporting service of national reputation selected by the
Investors and reasonably satisfactory to the Company.
If the VWAP cannot be
calculated for the Common Stock on such Trading Day on any of the foregoing
bases, then the Company shall submit such calculation to an independent
investment banking firm of national reputation reasonably acceptable to the
Investors, and shall cause such investment banking firm to perform such
determination and notify the Company and the Investors of the results of
determination no later than two (2) Business Days from the time such calculation
was submitted to it by the Company.
All such determinations shall be
appropriately adjusted for any stock dividend, stock split or other similar
transaction during such period.
1.3
OTHER DEFINITIONAL PROVISIONS.
ALL
DEFINITIONS CONTAINED IN THIS AGREEMENT ARE EQUALLY APPLICABLE TO THE SINGULAR
AND PLURAL FORMS OF THE TERMS DEFINED.
THE WORDS "HEREOF", "HEREIN" AND
"HEREUNDER" AND WORDS OF SIMILAR IMPORT REFERRING TO THIS AGREEMENT REFER TO
THIS AGREEMENT AS A WHOLE AND NOT TO ANY PARTICULAR PROVISION OF THIS AGREEMENT.
2.
REPRESENTATIONS AND WARRANTIES OF EACH INVESTOR.
Each Investor (with respect to itself only) hereby represents and warrants to
the Company and agrees with the Company that, as of the Execution Date:
2.1
AUTHORIZATION; ENFORCEABILITY.
SUCH
INVESTOR IS DULY AND VALIDLY ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING
UNDER THE LAWS OF THE JURISDICTION OF ITS INCORPORATION OR ORGANIZATION AS SET
FORTH BELOW SUCH INVESTOR'S NAME ON THE SIGNATURE PAGE HEREOF.
SUCH INVESTOR
HAS THE REQUISITE CORPORATE POWER AND AUTHORITY TO PURCHASE THE SHARES AND
WARRANT TO BE PURCHASED BY IT HEREUNDER AND TO EXECUTE, DELIVER AND PERFORM ITS
OBLIGATIONS PURSUANT TO THIS AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS TO
WHICH IT IS A PARTY.
THIS AGREEMENT
6
constitutes, and upon execution and delivery thereof, each other Transaction
Document to which such Investor is a party will constitute, such Investor's
valid and legally binding obligation, enforceable in accordance with its terms,
subject to (i) applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other similar laws of general application relating
to or affecting the enforcement of creditors' rights generally and (ii) general
principles of equity.
2.2
ACCREDITED INVESTOR.
SUCH INVESTOR (I) IS
AN "ACCREDITED INVESTOR" AS THAT TERM IS DEFINED IN RULE 501 OF REGULATION D,
(II) WAS NOT FORMED OR ORGANIZED FOR THE SPECIFIC PURPOSE OF MAKING AN
INVESTMENT IN THE COMPANY, AND (III) IS ACQUIRING THE SECURITIES SOLELY FOR ITS
OWN ACCOUNT AND NOT WITH A PRESENT VIEW TO THE PUBLIC RESALE OR DISTRIBUTION OF
ALL OR ANY PART THEREOF, EXCEPT PURSUANT TO SALES THAT ARE REGISTERED UNDER, OR
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF, THE SECURITIES ACT AND/OR SALES
REGISTERED UNDER THE SECURITIES ACT; PROVIDED, HOWEVER, THAT IN MAKING SUCH
REPRESENTATION, SUCH INVESTOR RESERVES THE RIGHT TO SELL, TRANSFER OR OTHERWISE
DISPOSE OF THE SECURITIES IN ACCORDANCE WITH THE PROVISIONS OF THIS AGREEMENT
AND WITH FEDERAL AND STATE SECURITIES LAWS