OF THE CLOSING IS REFERRED TO AS THE
"CLOSING DATE."
AT THE CLOSING, THE COMPANY WILL REGISTER IN THE NAME OF EACH
PURCHASER THAT NUMBER OF UNITS AND THAT NUMBER OF COMMON STOCK WARRANTS BEING
PURCHASED BY SUCH PURCHASER IN ACCORDANCE WITH EXHIBIT A TO THE SECURITIES
PURCHASE AGREEMENT, AGAINST PAYMENT OF EACH PURCHASER'S PURCHASE PRICE (AS
DEFINED IN THE SECURITIES PURCHASE AGREEMENT) BY CHECK OR WIRE TRANSFER OF
IMMEDIATELY AVAILABLE UNITED STATES FUNDS PAYABLE TO THE COMPANY'S ACCOUNT.
THE
UNITS AND THE COMMON STOCK WARRANTS WILL BE REGISTERED IN THE PURCHASERS' NAMES
OR THE NAMES OF THE NOMINEES OF THE PURCHASERS PURSUANT TO INSTRUCTIONS
DELIVERED TO THE COMPANY NOT LESS THAN TWO (2) BUSINESS DAYS PRIOR TO THE
CLOSING DATE AND WILL BE DELIVERED TO THE PURCHASERS WITHIN TEN (10) BUSINESS
DAYS AFTER THE CLOSING DATE.
6.
FURTHER COVENANTS.
THE COMPANY HEREBY COVENANTS AND AGREES THAT:
(A)
EXCEPT WITH THE PRIOR WRITTEN CONSENT OF THE PLACEMENT AGENT, THE
COMPANY SHALL NOT, AT ANY TIME PRIOR TO THE CLOSING, TAKE ANY ACTION WHICH WOULD
CAUSE ANY OF THE REPRESENTATIONS AND WARRANTIES MADE BY IT IN THIS AGREEMENT NOT
TO BE COMPLETE AND CORRECT ON AND AS OF THE CLOSING DATE WITH THE SAME FORCE AND
EFFECT AS IF SUCH REPRESENTATIONS AND WARRANTIES HAD BEEN MADE ON AND AS OF EACH
SUCH DATE.
(B)
IF, AT ANY TIME PRIOR TO THE CLOSING, ANY EVENT SHALL OCCUR WHICH
DOES OR MAY MATERIALLY AFFECT THE COMPANY OR AS A RESULT OF WHICH IT MIGHT
BECOME NECESSARY TO AMEND OR SUPPLEMENT THE EXECUTIVE SUMMARY SO THAT THE
REPRESENTATIONS AND WARRANTIES HEREIN REMAIN TRUE, OR IN CASE IT SHALL, IN THE
OPINION OF COUNSEL TO THE PLACEMENT AGENT, BE NECESSARY TO AMEND OR SUPPLEMENT
THE EXECUTIVE SUMMARY TO COMPLY WITH REGULATION D OR ANY OTHER APPLICABLE
SECURITIES LAWS OR REGULATIONS, THE COMPANY WILL PROMPTLY NOTIFY THE PLACEMENT
AGENT AND SHALL, AT ITS SOLE COST, PREPARE AND FURNISH TO THE PLACEMENT AGENT
COPIES OF APPROPRIATE AMENDMENTS AND/OR SUPPLEMENTS IN SUCH QUANTITIES AS THE
PLACEMENT AGENT MAY REQUEST.
THE COMPANY WILL NOT AT ANY TIME, WHETHER BEFORE
OR AFTER THE CLOSING, PREPARE OR USE ANY AMENDMENT OR SUPPLEMENT TO THE
EXECUTIVE SUMMARY OF WHICH THE PLACEMENT AGENT WILL NOT PREVIOUSLY HAVE BEEN
ADVISED AND FURNISHED WITH A COPY, OR TO WHICH THE PLACEMENT AGENT OR ITS
COUNSEL WILL HAVE
11
objected in writing or orally (confirmed in writing within twenty-four (24)
hours), or which is not in compliance with the Securities Act and the
requirements of all other rules and regulations (the "Regulations") and other
applicable securities laws.
As soon as the Company is advised thereof, the
Company will advise the Placement Agent and its counsel, and confirm the advice
in writing, of any order preventing or suspending the use of the Executive
Summary, or the suspension of the qualification or registration of the Units for
offering or the suspension of any exemption for such qualification or
registration of the Units for offering in any jurisdiction,