RESULTS OF THEIR OPERATIONS AND
CASH FLOWS FOR THE PERIODS SPECIFIED.
2.4.2.
NO MATERIAL CHANGE.
EXCEPT AS IDENTIFIED AND DESCRIBED IN THE SEC
FILINGS FILED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT, THERE HAS NOT BEEN
ANY FACT, EVENT, CHANGE, DEVELOPMENT, OR CIRCUMSTANCE THAT WOULD HAVE, OR WOULD
REASONABLY BE EXPECTED TO HAVE, A MATERIAL ADVERSE EFFECT.
2.5.
GOVERNMENTAL CONSENTS AND FILINGS.
NO CONSENT, APPROVAL, ORDER OR
AUTHORIZATION OF, OR REGISTRATION, QUALIFICATION, DESIGNATION, DECLARATION OR
FILING WITH, ANY FEDERAL, STATE OR LOCAL GOVERNMENTAL AUTHORITY IS REQUIRED ON
THE PART OF THE COMPANY IN CONNECTION WITH THE CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT, EXCEPT FOR SHELF REGISTRATION FILINGS PURSUANT
TO RULE 415 UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS, WHICH
HAVE BEEN MADE.
2.6.
VALID ISSUANCE OF SHARES.
THE SHARES, WHEN ISSUED, SOLD AND
DELIVERED IN ACCORDANCE WITH THE TERMS AND FOR THE CONSIDERATION SET FORTH IN
THIS AGREEMENT, WILL BE VALIDLY
4
ISSUED, FULLY PAID AND NON-ASSESSABLE AND FREE OF RESTRICTIONS ON TRANSFER OTHER
THAN LIENS OR ENCUMBRANCES CREATED BY OR IMPOSED BY THE PURCHASER.
SUBJECT TO
THE FILINGS DESCRIBED IN SECTION 2.7 BELOW, THE SHARES WILL BE ISSUED IN
COMPLIANCE WITH ALL APPLICABLE FEDERAL AND STATE SECURITIES LAWS.
2.7.
REGISTRATION OF SHARES.
THE SHARES, WHEN ISSUED, SOLD AND
DELIVERED TO PURCHASER UNDER THIS AGREEMENT, SHALL BE ISSUED PURSUANT TO A
PROSPECTUS SUPPLEMENT, DECLARED EFFECTIVE BY THE SEC, TO THE COMPANY'S SHELF
REGISTRATION STATEMENT ON FILE WITH THE SEC, AND AS SUCH SHALL BE DEEMED
UNRESTRICTED SECURITIES UNDER THE SECURITIES ACT OF 1933 AND ALL OTHER
APPLICABLE FEDERAL AND STATE SECURITIES LAWS AND SHALL, UPON ISSUANCE, SALE AND
DELIVERY, BE IMMEDIATELY TRADABLE BY PURCHASER WITHOUT ANY RESTRICTION CREATED
UNDER ANY CONTRACT, AGREEMENT OR SIMILAR INSTRUMENT OR PURSUANT TO ANY FEDERAL
OR STATE STATUTE, RULE OR REGULATION.
2.8.
DISCLOSURE.
AFTER GIVING EFFECT TO THE FILINGS DESCRIBED IN
SECTION 2.7 ABOVE AND EXCEPT FOR THE EXISTENCE OF THIS AGREEMENT AND THE LICENSE
AGREEMENT, WHICH WILL BE DISCLOSED IN A PUBLIC ANNOUNCEMENT IN ACCORDANCE WITH
SECTION 9.3 OF THE LICENSE AGREEMENT, NEITHER THE COMPANY NOR ANY OTHER PERSON
ACTING ON ITS BEHALF HAS PROVIDED PURCHASER OR ITS AGENTS OR COUNSEL WITH ANY
INFORMATION THAT CONSTITUTES MATERIAL, NON-PUBLIC INFORMATION.
THE COMPANY
UNDERSTANDS AND CONFIRMS THAT THE PURCHASER WILL RELY ON THE FOREGOING
REPRESENTATIONS IN EFFECTING SALES TRANSACTIONS ON NASDAQ IN THE COMMON STOCK OF
THE COMPANY DURING THE SALES PERIOD AND THEREAFTER.
2.9.
LISTING.
THE SHARES, WHEN ISSUED, SOLD AND DELIVERED TO PURCHASER
UNDER THIS AGREEMENT, SHALL BE LISTED ON NASDAQ.
THE COMPANY COMMON STOCK IS
VALIDLY LISTED ON NASDAQ.
COMPANY IS IN COMPLIANCE WITH THE LISTING
REQUIREMENTS OF NASDAQ AND DOES NOT REASONABLY ANTICIPATE THAT ITS COMMON STOCK
WILL BE DELISTED BY NASDAQ FOR THE FORESEEABLE FUTURE.
THERE ARE NO PROCEEDINGS
PENDING, OR TO THE COMPANY'S KNOWLEDGE THREATENED, AGAINST THE COMPANY RELATING
TO THE CONTINUED LISTING OF THE COMPANY COMMON STOCK ON NASDAQ.
THE COMPANY HAS
NOT RECEIVED ANY WRITTEN NOTICE OF, NOR TO THE COMPANY'S KNOWLEDGE