SHALL, SEVERALLY AND NOT JOINTLY,
PURCHASE FROM THE COMPANY, SUCH NUMBER OF UNITS INDICATED BELOW SUCH PURCHASER'S
NAME ON THE SIGNATURE PAGE OF THIS AGREEMENT AT THE PER UNIT PURCHASE PRICE.
THE CLOSING SHALL TAKE PLACE AT THE OFFICES OF PROSKAUER ROSE LLP IMMEDIATELY
FOLLOWING THE EXECUTION HEREOF AND DELIVERY OF EACH ITEM SET FORTH IN
SECTION 2.2, OR AT SUCH OTHER LOCATION OR TIME AS THE PARTIES MAY AGREE.
2.2
CLOSING DELIVERIES.
(A)
AT THE CLOSING, THE COMPANY SHALL DELIVER
OR CAUSE TO BE DELIVERED TO EACH PURCHASER THE FOLLOWING:
(I)
ONE OR MORE STOCK CERTIFICATES, FREE AND
CLEAR OF ALL RESTRICTIVE AND OTHER LEGENDS (EXCEPT AS EXPRESSLY PROVIDED IN
SECTION 4.1(B) HEREOF), EVIDENCING SUCH NUMBER OF SHARES EQUAL TO THE NUMBER OF
UNITS INDICATED BELOW SUCH PURCHASER'S NAME ON THE SIGNATURE PAGE OF THIS
AGREEMENT, REGISTERED IN THE NAME OF SUCH PURCHASER;
(II)
A WARRANT, REGISTERED IN THE NAME OF SUCH
PURCHASER, PURSUANT TO WHICH SUCH PURCHASER SHALL HAVE THE RIGHT TO ACQUIRE SUCH
NUMBER OF UNDERLYING SHARES INDICATED BELOW SUCH PURCHASER'S NAME ON THE
SIGNATURE PAGE OF THIS AGREEMENT UNDER THE HEADING "WARRANT SHARES," ON THE
TERMS SET FORTH THEREIN;
5
(III)
DULY EXECUTED TRANSFER AGENT INSTRUCTIONS,
IN THE FORM OF EXHIBIT B, ACKNOWLEDGED BY THE COMPANY'S TRANSFER AGENT; AND
(IV)
A LEGAL OPINION OF COMPANY COUNSEL, IN THE
FORM OF EXHIBIT C, EXECUTED BY SUCH COUNSEL AND DELIVERED TO THE PURCHASERS.
(B)
AT THE CLOSING, EACH PURCHASER SHALL DELIVER
OR CAUSE TO BE DELIVERED TO THE COMPANY AN AMOUNT EQUAL TO THE PER UNIT PURCHASE
PRICE MULTIPLIED BY THE NUMBER OF UNITS INDICATED BELOW SUCH PURCHASER'S NAME ON
THE SIGNATURE PAGE OF THIS AGREEMENT, IN UNITED STATES DOLLARS AND IN
IMMEDIATELY AVAILABLE FUNDS, BY WIRE TRANSFER TO AN ACCOUNT DESIGNATED IN
WRITING TO SUCH PURCHASER BY THE COMPANY FOR SUCH PURPOSE.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1
REPRESENTATIONS AND WARRANTIES OF THE
COMPANY.
EXCEPT AS SET FORTH IN THE SCHEDULES DELIVERED CONCURRENTLY HEREWITH,
THE COMPANY HEREBY MAKES THE FOLLOWING REPRESENTATIONS AND WARRANTIES TO EACH OF
THE PURCHASERS AS OF THE DATE HEREOF AND AS OF THE CLOSING DATE:
(A)
SUBSIDIARIES.
THE COMPANY HAS NO DIRECT OR
INDIRECT SUBSIDIARIES OTHER THAN THOSE LISTED IN SCHEDULE 3.1(A).
EXCEPT AS
DISCLOSED IN SCHEDULE 3.1(A), 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 AND SIMILAR RIGHTS.
(B)
ORGANIZATION AND QUALIFICATION.
EACH OF THE
COMPANY AND THE SUBSIDIARIES IS AN ENTITY DULY ORGANIZED, VALIDLY EXISTING AND
IN GOOD STANDING UNDER THE LAWS OF THE JURISDICTION OF ITS INCORPORATION OR
ORGANIZATION (AS APPLICABLE), WITH THE REQUISITE POWER AND AUTHORITY TO OWN AND
USE ITS PROPERTIES AND ASSETS AND TO CARRY ON ITS BUSINESS AS CURRENTLY
CONDUCTED.
NEITHER THE COMPANY NOR ANY SUBSIDIARY IS IN VIOLATION OF