PURCHASERS.
AT OR PRIOR TO THE CLOSING, THE
COMPANY AND EACH PURCHASER SHALL EXECUTE AND DELIVER (OR CAUSE THE EXECUTION AND
DELIVERY OF) ANY RELATED AGREEMENTS OR OTHER DOCUMENTS REQUIRED TO BE EXECUTED
AND DELIVERED AT THE CLOSING, DATED AS OF THE DATE OF THE CLOSING (THE "CLOSING
DATE").
3.2
DELIVERY OF THE SECURITIES.
AT THE CLOSING, THE SECURITIES
PURCHASED BY EACH RESPECTIVE PURCHASER WILL BE ISSUED IN THE NAME OF SUCH
PURCHASER, AND THE NAME OF SUCH PURCHASER WILL BE REGISTERED ON THE BOOKS OF THE
COMPANY AS THE RECORD OWNER OF SUCH SECURITIES.
AT THE CLOSING, THE COMPANY
WILL PROVIDE TO EACH PURCHASER COPIES OF THE SECURITIES PURCHASED BY SUCH
PURCHASER AND ISSUED AT THE CLOSING.
WITHIN TWO BUSINESS DAYS AFTER THE
CLOSING, THE COMPANY WILL DELIVER TO EACH RESPECTIVE PURCHASER STOCK
CERTIFICATES REPRESENTING THE SHARES OF COMMON STOCK, AND WARRANT CERTIFICATES
REPRESENTING THE WARRANTS, PURCHASED BY SUCH PURCHASER PURSUANT HERETO.
3.3
DELIVERY OF THE PURCHASE PRICE FOR THE SECURITIES AT THE CLOSING.
IN EXCHANGE FOR THE SECURITIES, EACH PURCHASER SHALL PAY THE AMOUNT SET FORTH
OPPOSITE SUCH PURCHASER'S NAME ON EXHIBIT A ATTACHED HERETO BY WIRE TRANSFER OF
IMMEDIATELY AVAILABLE FUNDS TO THE BANK ACCOUNT DESIGNATED BY THE COMPANY ON
EXHIBIT C ATTACHED HERETO.
SECTION 4.
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY.
For purposes of this Section 4, the "Company" shall mean the Company together
with any Subsidiary (as defined below) of the Company.
Except as set forth on
the Schedule of Exceptions attached hereto as Exhibit D, the Company hereby
represents and warrants to and, where applicable, covenants and agrees with,
each individual Purchaser as follows:
4.1
ORGANIZATION AND STANDING.
THE COMPANY IS A CORPORATION DULY
INCORPORATED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE STATE
OF CALIFORNIA AND HAS FULL CORPORATE POWER AND AUTHORITY TO OWN OR LEASE ITS
PROPERTIES AND CONDUCT ITS BUSINESS AS PRESENTLY CONDUCTED.
THE COMPANY IS DULY
REGISTERED OR QUALIFIED TO DO BUSINESS AS A FOREIGN CORPORATION, AND IS IN GOOD
STANDING, IN ALL JURISDICTIONS IN WHICH THE CHARACTER OF THE PROPERTY OWNED OR
LEASED OR THE NATURE OF THE BUSINESS TRANSACTED BY THE COMPANY MAKES SUCH
REGISTRATION OR QUALIFICATION NECESSARY, EXCEPT WHERE THE FAILURE TO BE SO
QUALIFIED WOULD NOT HAVE A "COMPANY MATERIAL ADVERSE EFFECT" (AS DEFINED
BELOW).
EXCEPT AS SET FORTH IN THE SCHEDULE OF EXCEPTIONS, THE COMPANY HAS NO
SUBSIDIARY (AS DEFINED BELOW) OR ANY EQUITY OR OTHER OWNERSHIP INTEREST
(INCLUDING WITHOUT LIMITATION ANY INTEREST CONVERTIBLE INTO OR EXCHANGEABLE OR
EXERCISABLE FOR ANY EQUITY OR OTHER OWNERSHIP INTEREST) IN ANY OTHER ENTITY, AND
IS NOT A PARTICIPANT IN ANY JOINT VENTURE OR OTHER SIMILAR ARRANGEMENT.
"COMPANY MATERIAL ADVERSE EFFECT" OR "COMPANY MATERIAL ADVERSE CHANGE" MEANS (I)
ANY CHANGE IN, OR EFFECT ON, THE BUSINESS, PROPERTIES, PROSPECTS,
2
RESULTS OF OPERATIONS, ASSETS OR FINANCIAL CONDITION OF THE COMPANY, OR ANY
CHANGE OR INCREASE IN THE LIABILITIES OF THE COMPANY, THAT IS OR WOULD
INDIVIDUALLY OR IN THE AGGREGATE REASONABLY BE EXPECTED TO BE