SIGNED BY THE COMPANY'S PRINCIPAL FINANCIAL
OFFICER, AS TO WHETHER IT HAS COMPLIED WITH SUCH REQUIREMENTS.
SECTION 4.4
CERTIFICATE.
THE COMPANY WILL, AT ITS EXPENSE, FORTHWITH
UPON THE REQUEST OF ANY HOLDER OF REGISTRABLE SECURITIES, DELIVER TO SUCH HOLDER
A CERTIFICATE, SIGNED BY THE COMPANY'S PRINCIPAL FINANCIAL OFFICER, STATING
(A) THE COMPANY'S NAME, ADDRESS AND TELEPHONE NUMBER (INCLUDING AREA CODE),
(B) THE COMPANY'S INTERNAL REVENUE SERVICE IDENTIFICATION NUMBER, (C) THE
COMPANY'S COMMISSION FILE NUMBER, (D) THE NUMBER OF SHARES OF EACH CLASS OF
CAPITAL STOCK OUTSTANDING AS SHOWN BY THE MOST RECENT REPORT OR STATEMENT
PUBLISHED BY THE COMPANY, AND (E) WHETHER THE COMPANY HAS FILED THE REPORTS
REQUIRED TO BE FILED UNDER THE EXCHANGE ACT FOR A PERIOD OF AT LEAST NINETY (90)
DAYS PRIOR TO THE DATE OF SUCH CERTIFICATE AND IN ADDITION HAS FILED THE MOST
RECENT ANNUAL REPORT REQUIRED TO BE FILED THEREUNDER.
SECTION 4.5
AMENDMENT AND MODIFICATION.
THE PROVISIONS OF THIS
AGREEMENT, INCLUDING THE PROVISIONS OF THIS SENTENCE, MAY BE AMENDED, MODIFIED
OR SUPPLEMENTED, AND WAIVERS OR CONSENTS TO DEPARTURES FROM THE PROVISIONS
HEREOF MAY BE GIVEN, WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY AND THE
INVESTOR.
NO COURSE OF DEALING BETWEEN OR AMONG ANY PERSON HAVING ANY INTEREST
IN THIS AGREEMENT WILL BE DEEMED EFFECTIVE TO MODIFY, AMEND OR DISCHARGE ANY
PART OF THIS AGREEMENT OR ANY RIGHTS OR OBLIGATIONS OF ANY PERSON UNDER OR BY
REASON OF THIS AGREEMENT.
SECTION 4.6
SUCCESSORS AND ASSIGNS; ENTIRE AGREEMENT.
THIS AGREEMENT
AND ALL OF THE PROVISIONS HEREOF SHALL BE BINDING UPON AND INURE TO THE BENEFIT
OF THE PARTIES HERETO AND THEIR RESPECTIVE SUCCESSORS AND PERMITTED ASSIGNS.
THE COMPANY MAY ASSIGN THIS AGREEMENT AT ANY TIME IN CONNECTION WITH A SALE OR
ACQUISITION OF THE COMPANY, WHETHER BY MERGER, CONSOLIDATION, SALE OF ALL OR
SUBSTANTIALLY ALL OF THE COMPANY'S ASSETS, OR SIMILAR TRANSACTION, WITHOUT THE
CONSENT OF THE INVESTOR, PROVIDED THAT THE SUCCESSOR OR ACQUIRING PERSON OR
ENTITY AGREES IN WRITING TO ASSUME ALL OF THE COMPANY'S RIGHTS AND OBLIGATIONS
UNDER THIS AGREEMENT.
THE INVESTOR MAY ASSIGN ITS RIGHTS AND OBLIGATIONS UNDER
THIS AGREEMENT ONLY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY, AND ANY
PURPORTED ASSIGNMENT BY THE INVESTOR ABSENT THE COMPANY'S CONSENT SHALL BE NULL
AND VOID.
THIS AGREEMENT, TOGETHER WITH THE PURCHASE AGREEMENT AND THE WARRANT
SETS FORTH THE ENTIRE AGREEMENT AND UNDERSTANDING BETWEEN THE PARTIES AS TO THE
SUBJECT MATTER HEREOF AND MERGES AND SUPERSEDES ALL PRIOR DISCUSSIONS,
AGREEMENTS AND UNDERSTANDINGS OF ANY AND EVERY NATURE AMONG THEM.
10
SECTION 4.7
SEVERABILITY.
IF ANY PROVISION OF THIS AGREEMENT BECOMES OR
IS DECLARED BY A COURT OF COMPETENT JURISDICTION TO BE ILLEGAL, UNENFORCEABLE OR
VOID, THIS AGREEMENT SHALL CONTINUE IN FULL FORCE AND EFFECT WITHOUT SAID
PROVISION; PROVIDED THAT, IF THE SEVERANCE OF SUCH PROVISION MATERIALLY CHANGES
THE ECONOMIC BENEFITS OF THIS AGREEMENT TO EITHER PARTY AS SUCH BENEFITS ARE
ANTICIPATED AS OF THE DATE HEREOF, THEN SUCH PARTY MAY TERMINATE THIS AGREEMENT
ON FIVE (5) BUSINESS DAYS PRIOR WRITTEN NOTICE