AND TO CARRY ON ITS BUSINESS AS CURRENTLY CONDUCTED.
NEITHER THE COMPANY NOR ANY SUBSIDIARY IS IN VIOLATION OF ANY OF THE PROVISIONS
OF ITS RESPECTIVE CERTIFICATE OR ARTICLES OF INCORPORATION, BYLAWS OR OTHER
ORGANIZATIONAL OR CHARTER DOCUMENTS, EXCEPT WHERE ANY SUCH VIOLATION WOULD NOT,
INDIVIDUALLY OR IN THE AGGREGATE, HAVE OR REASONABLY BE EXPECTED TO RESULT IN A
MATERIAL ADVERSE EFFECT (AS DEFINED BELOW).
EACH OF THE COMPANY AND THE
SUBSIDIARIES IS DULY QUALIFIED TO DO BUSINESS AND IS IN GOOD STANDING AS A
FOREIGN CORPORATION OR OTHER ENTITY IN EACH JURISDICTION IN WHICH THE NATURE OF
THE BUSINESS CONDUCTED OR PROPERTY OWNED BY IT MAKES SUCH QUALIFICATION
NECESSARY, EXCEPT WHERE THE FAILURE TO BE SO QUALIFIED OR IN GOOD STANDING, AS
THE CASE MAY BE, WOULD NOT, INDIVIDUALLY OR IN THE AGGREGATE, HAVE OR REASONABLY
BE EXPECTED TO RESULT IN A MATERIAL ADVERSE EFFECT.
FOR PURPOSES OF THIS
AGREEMENT, THE TERM "MATERIAL ADVERSE EFFECT" MEANS (I) A MATERIAL ADVERSE
EFFECT ON THE RESULTS OF OPERATIONS, ASSETS, BUSINESS OR FINANCIAL CONDITION OF
THE COMPANY AND THE SUBSIDIARIES, TAKEN AS A WHOLE ON A CONSOLIDATED BASIS, OR
(II) AN EVENT OR OCCURRENCE THAT MATERIALLY AND ADVERSELY IMPAIRS THE COMPANY'S
ABILITY TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT AND/OR THE WARRANT,
PROVIDED, THAT NONE OF THE FOLLOWING ALONE SHALL BE DEEMED, IN AND OF ITSELF, TO
CONSTITUTE A MATERIAL ADVERSE EFFECT:
(X) A CHANGE IN THE MARKET PRICE OR
TRADING VOLUME OF THE COMMON SHARES OR (Y) CHANGES IN GENERAL ECONOMIC
CONDITIONS OR CHANGES AFFECTING THE INDUSTRY IN WHICH THE COMPANY OPERATES
GENERALLY (AS OPPOSED TO COMPANY-SPECIFIC CHANGES).
2.3
AUTHORIZATION; ENFORCEMENT.
THE COMPANY HAS
THE REQUISITE CORPORATE AUTHORITY TO ENTER INTO AND TO CONSUMMATE THE
TRANSACTIONS CONTEMPLATED BY EACH OF THIS AGREEMENT, THE WARRANT AND THE
SUBSEQUENT AGREEMENTS (AS DEFINED IN SECTION 13 BELOW) (TOGETHER WITH THIS
AGREEMENT AND THE WARRANT, THE "TRANSACTION DOCUMENTS") OTHERWISE TO CARRY OUT
ITS OBLIGATIONS HEREUNDER AND THEREUNDER.
THE EXECUTION AND DELIVERY OF EACH OF
THE TRANSACTION DOCUMENTS BY THE COMPANY AND THE CONSUMMATION BY IT OF THE
TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY HAVE BEEN DULY
3
AUTHORIZED BY ALL NECESSARY ACTION ON THE PART OF THE COMPANY AND NO FURTHER
CONSENT OR ACTION IS REQUIRED BY THE COMPANY, ITS BOARD OF DIRECTORS OR ITS
STOCKHOLDERS. EACH OF THE TRANSACTION DOCUMENTS HAS BEEN, OR UPON DELIVERY WILL
BE, DULY EXECUTED BY THE COMPANY AND IS, OR WHEN DELIVERED IN ACCORDANCE WITH
THE TERMS HEREOF, WILL CONSTITUTE, THE VALID AND BINDING OBLIGATION OF THE
COMPANY ENFORCEABLE AGAINST THE COMPANY IN ACCORDANCE WITH ITS TERMS, EXCEPT AS
MAY BE LIMITED BY (I) APPLICABLE BANKRUPTCY, INSOLVENCY, REORGANIZATION OR OTHER
LAWS OF GENERAL APPLICATION RELATING TO OR AFFECTING THE ENFORCEMENT OF
CREDITORS RIGHTS GENERALLY, AND (II) THE EFFECT OF RULES OF LAW GOVERNING THE
AVAILABILITY OF SPECIFIC PERFORMANCE AND OTHER EQUITABLE REMEDIES.
2.4
NO CONFLICTS.
THE EXECUTION, DELIVERY AND
PERFORMANCE OF THIS AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS BY THE COMPANY
AND THE CONSUMMATION BY THE COMPANY OF THE