MATERIAL RESPECTS (EXCEPT AS TO THOSE REPRESENTATIONS AND WARRANTIES QUALIFIED
BY MATERIALITY, AS TO WHICH THE CONFIRMATION SHALL BE AS TO THEIR CONTINUED
TRUTH AND CORRECTNESS) AS OF THE CLOSING DATE OF THE COMPANY'S REPRESENTATIONS
AND WARRANTIES MADE IN ARTICLE III HEREOF;
(II)
A CERTIFICATE OF THE SECRETARY OF THE COMPANY, ATTACHING A RECENT COPY OF
THE CERTIFICATE OF INCORPORATION, AS AMENDED, CERTIFIED BY THE SECRETARY OF
STATE OF THE STATE OF DELAWARE AND A GOOD STANDING CERTIFICATE DATED AUGUST 17,
2007, COPIES OF THE BY-LAWS OF THE COMPANY AND RESOLUTIONS OF THE BOARD OF
DIRECTORS, WHICH THE SECRETARY OF THE COMPANY HAS CERTIFIED AS TRUE AND CORRECT
COPIES IN FULL FORCE AND EFFECT AS OF THE CLOSING;
(III)
ONE OR MORE STOCK CERTIFICATES (OR COPIES THEREOF PROVIDED BY THE
TRANSFER AGENT), 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 UNDER THE
HEADING "COMMON SHARES," REGISTERED IN THE NAME OF SUCH INVESTOR;
6
(IV)
A LEGAL OPINION OF COMPANY COUNSEL, IN THE FORM OF EXHIBIT C, EXECUTED BY
SUCH COUNSEL AND DELIVERED TO THE INVESTORS;
(V)
DULY EXECUTED TRANSFER AGENT INSTRUCTIONS ACKNOWLEDGED BY THE COMPANY'S
TRANSFER AGENT;
(VI)
APPROVAL BY EACH APPLICABLE TRADING MARKET OF AN ADDITIONAL SHARES LISTING
APPLICATION COVERING ALL OF THE REGISTRABLE SECURITIES, IF REQUIRED BY SUCH
TRADING MARKET (AND, IF APPLICABLE, EVIDENCE OF CONDITIONAL LISTING APPROVAL);
AND
(VII) ANY CONSENTS OR APPROVALS OF ANY PERSON LISTED ON SCHEDULE 3.1(Z) OR ANY
OTHER THIRD-PARTY REQUIRED TO EFFECT THE TERMS AND CONDITIONS OF THIS AGREEMENT.
(B)
AT THE CLOSING, EACH INVESTOR SHALL DELIVER OR CAUSE TO BE DELIVERED TO
THE COMPANY THE PURCHASE PRICE (LESS EACH INVESTOR'S PROPORTIONATE SHARE OF THE
INVESTORS' FEES AND EXPENSES DESCRIBED IN SECTION 7.2, WHICH SHALL BE PAID BY
DEDUCTION TO THE PROCEEDS PAYABLE AS DIRECTED BY EACH INVESTOR) SET FORTH
OPPOSITE SUCH INVESTOR'S NAME ON EXHIBIT A HERETO UNDER THE HEADING "PURCHASE
PRICE" 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.
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), AS OF THE DATE HEREOF AND AS OF THE CLOSING:
(A)
MAJOR SUBSIDIARIES.
THE COMPANY HAS NO MAJOR 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 MAJOR SUBSIDIARY FREE AND CLEAR OF ANY LIEN
AND ALL THE ISSUED AND OUTSTANDING SHARES OF CAPITAL STOCK OR COMPARABLE EQUITY
INTEREST OF EACH MAJOR SUBSIDIARY ARE VALIDLY ISSUED AND ARE FULLY PAID,
NON-ASSESSABLE AND FREE OF PREEMPTIVE AND SIMILAR RIGHTS.
(B)
ORGANIZATION AND QUALIFICATION.