ACKNOWLEDGES THAT THE PLACEMENT AGENTS ARE ACTING AS THE EXCLUSIVE
PLACEMENT AGENTS ON A "BEST EFFORTS" BASIS FOR THE SECURITIES BEING OFFERED
HEREBY AND WILL BE COMPENSATED BY THE COMPANY FOR ACTING IN SUCH CAPACITY.
INVESTOR REPRESENTS THAT (I) INVESTOR WAS CONTACTED REGARDING THE SALE OF THE
SECURITIES BY THE PLACEMENT AGENT (OR AN AUTHORIZED AGENT OR REPRESENTATIVE
THEREOF) AND (II) NO SECURITIES WERE OFFERED OR SOLD TO IT BY MEANS OF ANY FORM
OF GENERAL SOLICITATION OR GENERAL ADVERTISING.
3.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company
hereby represents and warrants to each Investor and agrees with each Investor
that, as of the Execution Date:
3.1
ORGANIZATION, GOOD STANDING AND
QUALIFICATION.
THE COMPANY IS DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD
STANDING UNDER THE LAWS OF THE STATE OF DELAWARE AND HAS ALL REQUISITE POWER AND
AUTHORITY TO CARRY ON ITS BUSINESS AS NOW CONDUCTED.
THE COMPANY IS DULY
QUALIFIED TO TRANSACT BUSINESS AND IS IN GOOD STANDING IN EACH JURISDICTION IN
WHICH IT CONDUCTS BUSINESS EXCEPT WHERE THE FAILURE SO TO QUALIFY HAS NOT HAD OR
WOULD NOT REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
THE COMPANY
DOES NOT HAVE ANY OPERATING SUBSIDIARIES.
3.2
AUTHORIZATION; CONSENTS.
THE COMPANY HAS
THE REQUISITE CORPORATE POWER AND AUTHORITY TO ENTER INTO AND PERFORM ITS
OBLIGATIONS UNDER THE TRANSACTION DOCUMENTS, TO ISSUE AND SELL THE SHARES AND
THE WARRANTS TO THE INVESTORS IN ACCORDANCE WITH THE TERMS HEREOF AND THEREOF,
AND TO ISSUE THE WARRANT SHARES UPON EXERCISE OF THE WARRANTS.
NO FURTHER
CONSENT OR AUTHORIZATION OF THE COMPANY, ITS BOARD OF DIRECTORS, ANY
GOVERNMENTAL AUTHORITY OR ORGANIZATION, OR ANY OTHER PERSON OR ENTITY IS
REQUIRED (PURSUANT TO ANY RULE OF THE NATIONAL MARKET OR OTHERWISE (OTHER THAN
(X) STOCKHOLDER APPROVAL, AND (Y) SUCH APPROVAL AS MAY BE REQUIRED UNDER THE
SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS IN RESPECT OF THE
REGISTRATION RIGHTS AGREEMENT) EXCEPT FOR SUCH CONSENTS OR AUTHORIZATIONS THAT
WOULD NOT REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
3.3
ENFORCEMENT.
THIS AGREEMENT HAS BEEN AND,
AT OR PRIOR TO THE CLOSING, EACH OTHER TRANSACTION DOCUMENT TO BE DELIVERED AT
THE CLOSING WILL BE, DULY EXECUTED AND DELIVERED BY THE COMPANY. THIS AGREEMENT
CONSTITUTES AND, UPON THE EXECUTION AND DELIVERY THEREOF BY THE COMPANY, EACH
OTHER TRANSACTION DOCUMENT WILL CONSTITUTE THE VALID AND LEGALLY BINDING
OBLIGATION OF THE COMPANY, ENFORCEABLE AGAINST IT IN ACCORDANCE WITH ITS TERMS,
SUBJECT TO (I) APPLICABLE BANKRUPTCY, INSOLVENCY, FRAUDULENT TRANSFER,
MORATORIUM, REORGANIZATION OR OTHER
9
similar laws of general application relating to or affecting the enforcement of
creditors' rights generally and (ii) general principles of equity.
3.4
DISCLOSURE DOCUMENTS; AGREEMENTS; FINANCIAL
STATEMENTS; OTHER INFORMATION.
THE COMPANY IS SUBJECT TO THE REPORTING
REQUIREMENTS OF THE EXCHANGE ACT AND HAS FILED WITH THE COMMISSION ALL REPORTS,
SCHEDULES, REGISTRATION STATEMENTS AND DEFINITIVE PROXY STATEMENTS THAT THE
COMPANY WAS REQUIRED TO FILE WITH THE COMMISSION ON OR AFTER DECEMBER 31, 2004
(COLLECTIVELY, THE "SEC DOCUMENTS").
THE COMPANY IS NOT AWARE OF ANY EVENT