SHALL NOT, DURING THE PERIOD COMMENCING ON THE DATE
HEREOF AND ENDING ON THE LATER OF THE TERMINATION DATE AND THE CLOSING, ISSUE
ANY PRESS RELEASE OR OTHER PUBLIC COMMUNICATION, OR HOLD ANY PRESS CONFERENCE
WITH RESPECT TO THE COMPANY, ITS FINANCIAL CONDITION, RESULTS OF OPERATIONS,
BUSINESS, PROPERTIES, ASSETS OR LIABILITIES, OR THE OFFERING, WITHOUT THE PRIOR
KNOWLEDGE OF THE PLACEMENT AGENT.
7.
CONDITIONS OF PLACEMENT AGENT'S OBLIGATIONS.
THE OBLIGATIONS OF
THE PLACEMENT AGENT HEREUNDER ARE SUBJECT TO THE FULFILLMENT OR WAIVER BY THE
PLACEMENT AGENT, AT OR BEFORE THE CLOSING (UNLESS THE PLACEMENT AGENT
SPECIFICALLY AGREES IN WRITING TO ACCEPT FULFILLMENT OF SUCH CONDITION AFTER THE
CLOSING), OF THE FOLLOWING ADDITIONAL CONDITIONS:
(A)
EACH OF THE REPRESENTATIONS AND WARRANTIES OF THE COMPANY
CONTAINED IN THIS AGREEMENT WHICH ARE QUALIFIED AS TO MATERIALITY MUST BE TRUE
AND CORRECT AS WRITTEN AND EACH OF THE REPRESENTATIONS AND WARRANTIES OF THE
COMPANY CONTAINED IN THIS AGREEMENT WHICH ARE NOT QUALIFIED AS TO MATERIALITY
MUST BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS AS OF THE CLOSING DATE AND
THERE SHALL HAVE BEEN NO MATERIAL ADVERSE CHANGES IN THE FINANCIAL CONDITION,
BUSINESS OR PROSPECTS OF THE COMPANY.
(B)
THE COMPANY SHALL HAVE PERFORMED AND COMPLIED IN ALL MATERIAL
RESPECTS WITH ALL AGREEMENTS, COVENANTS AND CONDITIONS REQUIRED TO BE PERFORMED
AND COMPLIED WITH BY IT UNDER THE TRANSACTION DOCUMENTS AT OR BEFORE THE
CLOSING.
(C)
NO ORDER SUSPENDING THE USE OF THE EXECUTIVE SUMMARY OR ENJOINING
THE OFFERING OR SALE OF THE UNITS OR THE COMMON STOCK WARRANTS SHALL HAVE BEEN
ISSUED, AND NO PROCEEDINGS FOR THAT PURPOSE OR A SIMILAR PURPOSE SHALL HAVE BEEN
INITIATED OR PENDING, OR, TO THE BEST OF THE COMPANY'S KNOWLEDGE, ARE
CONTEMPLATED OR THREATENED NOR HAS ANY ORDER BEEN ISSUED HALTING THE TRADING OF
THE UNITS OR THE COMMON STOCK WARRANTS ON THE NASDAQ SMALLCAP MARKET .
(D)
IMMEDIATELY PRIOR TO THE CONSUMMATION OF THE CLOSING, THE COMPANY
WILL HAVE AN AUTHORIZED CAPITALIZATION AS SET FORTH IN THE COMMISSION DOCUMENTS.
(E)
THE PLACEMENT AGENT SHALL HAVE RECEIVED CERTIFICATES OF THE CHIEF
EXECUTIVE OFFICER AND CHIEF FINANCIAL OFFICER OF THE COMPANY, DATED AS OF THE
CLOSING DATE, CERTIFYING IN THEIR CAPACITY AS OFFICERS OF THE COMPANY, IN SUCH
DETAIL AS THE PLACEMENT AGENT MAY REASONABLY REQUEST, AS TO THE FULFILLMENT OF
THE CONDITIONS SET FORTH IN SUBPARAGRAPHS (A), (B), (C) AND (D) ABOVE.
(F)
THE COMPANY SHALL HAVE DELIVERED TO THE PLACEMENT AGENT (I) A
CURRENTLY DATED GOOD STANDING CERTIFICATE FROM THE SECRETARY OF STATE OF THE
STATE OF DELAWARE, (II) CERTIFIED RESOLUTIONS OF THE COMPANY'S BOARD OF
DIRECTORS APPROVING THIS AGREEMENT AND THE OTHER
14
Transaction Documents, and the transactions and agreements contemplated by this
Agreement and the other Transaction Documents (iii) a copy of the Certificate of
Incorporation of the Company and all amendments thereto, certified by the
Secretary of State of the State of Delaware and the Secretary of the Company,
(iv) a copy of the Bylaws of the Company and all amendments thereto, certified