OF ANY INVENTORSHIP CHALLENGES, ANY
INTERFERENCE WHICH HAS BEEN DECLARED OR PROVOKED, OR ANY OTHER MATERIAL FACT
THAT (I) WOULD PRECLUDE THE ISSUANCE OF PATENTS WITH RESPECT TO SUCH
APPLICATIONS, OR (II) WOULD LEAD SUCH COUNSEL TO CONCLUDE THAT SUCH PATENTS,
WHEN ISSUED, WOULD NOT BE VALID AND ENFORCEABLE IN ACCORDANCE WITH APPLICABLE
REGULATIONS.
(16)
THE CONDUCT OF THE BUSINESS OF THE COMPANY AND EACH OF ITS
SUBSIDIARIES IS IN COMPLIANCE IN ALL RESPECTS WITH APPLICABLE LAWS, RULES AND
REGULATIONS OF GOVERNMENTAL AND REGULATORY BODIES, EXCEPT WHERE THE FAILURE TO
BE IN COMPLIANCE WOULD NOT INDIVIDUALLY OR IN THE AGGREGATE HAVE A MATERIAL
ADVERSE EFFECT.
(17)
THE COMPANY IS NOT, AND DOES NOT INTEND TO CONDUCT ITS BUSINESS IN
A MANNER IN WHICH IT WOULD BECOME, AN "INVESTMENT COMPANY" AS DEFINED IN
SECTION 3(A) OF THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED.
(18)
ALL OFFERS AND SALES OF THE COMPANY'S CAPITAL STOCK PRIOR TO THE
DATE HEREOF WERE AT ALL RELEVANT TIMES REGISTERED PURSUANT TO THE SECURITIES ACT
OR EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND WERE DULY
REGISTERED WITH OR THE SUBJECT OF AN AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE APPLICABLE STATE SECURITIES OR BLUE SKY LAWS, EXCEPT WHERE
THE FAILURE TO DO SO WOULD NOT INDIVIDUALLY OR IN THE AGGREGATE REASONABLY BE
EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
(19)
THE COMPANY HAS FILED WITH THE NASDAQ NATIONAL MARKET A
NOTIFICATION OF LISTING OF ADDITIONAL SHARES WITH RESPECT TO THE INVESTOR SHARES
WITHIN THE TIME PERIOD REQUIRED BY THE RULES OF THE NASDAQ NATIONAL MARKET.
(20)
TO THE EXTENT THAT THE COMPANY OR ANY OTHER PERSON ACTING ON ITS
BEHALF HAS PROVIDED THE INVESTOR OR ITS AGENTS OR COUNSEL WITH ANY INFORMATION
THAT THE COMPANY BELIEVES CONSTITUTES MATERIAL, NON-PUBLIC INFORMATION, ANY SUCH
MATERIAL, NON-PUBLIC INFORMATION WILL BE DISCLOSED BY THE COMPANY WITHIN 48
HOURS OF THE CLOSING.
7
5.
CONDITIONS. THE OBLIGATION OF EACH INVESTOR TO PURCHASE AND
ACQUIRE THE INVESTOR SHARES HEREUNDER SHALL BE SUBJECT TO THE CONDITION THAT ALL
REPRESENTATIONS AND WARRANTIES AND OTHER STATEMENTS OF THE COMPANY SHALL BE TRUE
AND CORRECT AS OF AND ON EACH OF THE DATE OF THIS AGREEMENT AND THE DATE OF THE
CLOSING, THE CONDITION THAT THE COMPANY SHALL HAVE PERFORMED ALL OF ITS
OBLIGATIONS HEREUNDER THERETOFORE TO BE PERFORMED, AND THE FOLLOWING ADDITIONAL
CONDITIONS:
(A)
THE PROSPECTUS SHALL HAVE BEEN FILED WITH THE COMMISSION PURSUANT
TO RULE 424(B) UNDER THE SECURITIES ACT WITHIN THE APPLICABLE TIME PERIOD
PRESCRIBED FOR SUCH FILING, NO STOP ORDER SUSPENDING THE EFFECTIVENESS OF THE
REGISTRATION STATEMENT OR ANY PART THEREOF SHALL HAVE BEEN ISSUED AND NO
PROCEEDING FOR THAT PURPOSE SHALL HAVE BEEN INITIATED OR THREATENED BY THE
COMMISSION, AND THE INVESTOR SHALL HAVE RECEIVED THE PROSPECTUS IN ACCORDANCE
WITH THE FEDERAL SECURITIES LAWS.
6.
MISCELLANEOUS.
(A)
FEES AND EXPENSES. EACH OF THE PARTIES HERETO SHALL BE RESPONSIBLE
FOR THEIR OWN EXPENSES INCURRED IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED
HEREBY.
(B)
BINDING AGREEMENT; ASSIGNMENT. THIS AGREEMENT