THE TRANSACTION DOCUMENTS. THE
COMPANY INTENDS TO ACCOUNT FOR THE GROSS PROCEEDS RAISED FROM THE FINANCING
WHICH IS THE SUBJECT OF THIS AGREEMENT AS EQUITY IN ITS FINANCIAL STATEMENTS.
(HH)
NO ADDITIONAL AGREEMENTS. THE COMPANY DOES NOT HAVE ANY AGREEMENT
OR UNDERSTANDING WITH ANY PURCHASER WITH RESPECT TO THE TRANSACTIONS
CONTEMPLATED BY THE TRANSACTION DOCUMENTS OTHER THAN AS SPECIFIED IN THE
TRANSACTION DOCUMENTS.
3.2
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS. EACH PURCHASER
HEREBY, FOR ITSELF AND FOR NO OTHER PURCHASER, REPRESENTS AND WARRANTS AS OF THE
DATE HEREOF AND AS OF THE CLOSING DATE TO THE COMPANY AND THE PLACEMENT AGENT AS
FOLLOWS:
(A)
ORGANIZATION; AUTHORITY. SUCH PURCHASER IS AN ENTITY DULY
ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE
JURISDICTION OF ITS ORGANIZATION WITH THE REQUISITE CORPORATE OR PARTNERSHIP
POWER AND AUTHORITY TO ENTER INTO AND TO CONSUMMATE THE TRANSACTIONS
CONTEMPLATED BY THE APPLICABLE TRANSACTION DOCUMENTS AND OTHERWISE TO CARRY OUT
ITS OBLIGATIONS HEREUNDER AND THEREUNDER. THE EXECUTION, DELIVERY AND
PERFORMANCE BY SUCH PURCHASER OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT
HAVE BEEN DULY AUTHORIZED BY ALL NECESSARY CORPORATE OR, IF SUCH PURCHASER IS
NOT A CORPORATION, SUCH PARTNERSHIP, LIMITED LIABILITY COMPANY OR OTHER
APPLICABLE LIKE ACTION, ON THE PART OF SUCH PURCHASER. EACH OF THIS AGREEMENT
AND THE REGISTRATION RIGHTS AGREEMENT HAS BEEN DULY EXECUTED BY SUCH PURCHASER,
AND WHEN DELIVERED BY SUCH PURCHASER IN ACCORDANCE WITH TERMS HEREOF, WILL
CONSTITUTE THE VALID AND LEGALLY BINDING OBLIGATION OF SUCH PURCHASER,
ENFORCEABLE AGAINST IT IN ACCORDANCE WITH ITS TERMS, EXCEPT AS SUCH
ENFORCEABILITY MAY BE LIMITED BY APPLICABLE BANKRUPTCY, INSOLVENCY,
REORGANIZATION, MORATORIUM, LIQUIDATION OR SIMILAR LAWS RELATING TO, OR
AFFECTING GENERALLY THE ENFORCEMENT OF, CREDITORS' RIGHTS AND REMEDIES OR BY
OTHER EQUITABLE PRINCIPLES OF GENERAL APPLICATION.
(B)
INVESTMENT INTENT. SUCH PURCHASER UNDERSTANDS THAT THE SECURITIES
ARE "RESTRICTED SECURITIES" AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OR ANY APPLICABLE STATE SECURITIES LAW AND IS
14
ACQUIRING THE SECURITIES AND, UPON EXERCISE OF THE WARRANTS, WILL ACQUIRE THE
WARRANT SHARES ISSUABLE UPON EXERCISE THEREOF AS PRINCIPAL FOR ITS OWN ACCOUNT
AND NOT WITH A VIEW TO, OR FOR DISTRIBUTING OR RESELLING SUCH SECURITIES OR ANY
PART THEREOF IN VIOLATION OF THE SECURITIES ACT OR ANY APPLICABLE STATE
SECURITIES LAWS, WITHOUT PREJUDICE, HOWEVER, TO SUCH PURCHASER'S RIGHT, SUBJECT
TO THE PROVISIONS OF THIS AGREEMENT AND THE REGISTRATION RIGHTS AGREEMENT, AT
ALL TIMES TO SELL OR OTHERWISE DISPOSE OF ALL OR ANY PART OF SUCH SECURITIES OR
WARRANT SHARES PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR UNDER AN EXEMPTION FROM SUCH REGISTRATION AND IN COMPLIANCE
WITH APPLICABLE FEDERAL AND STATE SECURITIES LAWS. SUCH PURCHASER IS ACQUIRING
THE SECURITIES HEREUNDER IN THE ORDINARY COURSE OF ITS BUSINESS. SUCH PURCHASER
DOES NOT PRESENTLY HAVE ANY AGREEMENT, PLAN OR UNDERSTANDING, DIRECTLY OR
INDIRECTLY, WITH ANY PERSON TO DISTRIBUTE OR EFFECT ANY DISTRIBUTION OF ANY OF
THE SECURITIES (OR ANY SECURITIES WHICH ARE DERIVATIVES THEREOF) TO OR THROUGH
ANY PERSON OR ENTITY; PROVIDED, HOWEVER, THAT BY