WOULD BE REQUIRED TO BE DISCLOSED
PURSUANT TO ITEM 404 OF REGULATION S-K PROMULGATED UNDER THE 1933 ACT, WITHOUT
REGARD TO THE DOLLAR THRESHOLDS CONTAINED IN SUCH ITEM.
5.25.
SCIENTIFIC DISCLOSURES.
THE WRITTEN SCIENTIFIC MATERIALS DELIVERED
TO THE LEAD INVESTOR IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THE
TRANSACTION DOCUMENTS, AS IDENTIFIED ON SCHEDULE 5.25, ARE TRUE, ACCURATE AND
COMPLETE.
5.26
NASDAQ Compliance.
The Common Stock is registered pursuant to
Section 12(g) of the Exchange Act, and is listed on the NASDAQ SmallCap Market
(the "NASDAQ Stock Market"), and the Company has taken no action designed to, or
which to the
21
Company's Knowledge is likely to have the effect of, terminating the
registration of the Common Stock under the Exchange Act or delisting the Common
Stock from the NASDAQ Stock Market.
No order ceasing or suspending trading in
any securities of the Company or prohibiting the issuance and/or sale of the
Securities is in effect and no proceedings for such purpose are pending or
threatened.
The Company has received from NASDAQ a valid exemption under NASD
Rule 4350(i)(2) from NASD Rules 4350(i)(1) and 4351 with respect to the issuance
of all the Securities in the First Closing in accordance with all of the terms
and conditions of the Transaction Documents, which exemption has been provided
to the Lead Investor.
6.
REPRESENTATIONS AND WARRANTIES OF THE INVESTORS.
EXCEPT WITH
RESPECT TO SECTIONS 6.2, 6.3, 6.5, 6.6, 6.7 AND 6.8, WHICH SHALL NOT APPLY TO
THE FOREIGN INVESTOR, EACH OF THE INVESTORS HEREBY SEVERALLY, AND NOT JOINTLY,
REPRESENTS AND WARRANTS TO THE COMPANY ON AND AS OF THE SIGNING DATE AND ON THE
APPLICABLE CLOSING DATE, KNOWING AND INTENDING THAT THE COMPANY RELY THEREON,
THAT:
6.1.
AUTHORIZATION.
THE EXECUTION, DELIVERY AND PERFORMANCE BY THE
INVESTOR OF THE TRANSACTION DOCUMENTS TO WHICH SUCH INVESTOR IS A PARTY HAVE
BEEN DULY AUTHORIZED AND WILL EACH CONSTITUTE THE VALID AND LEGALLY BINDING
OBLIGATION OF THE INVESTOR, ENFORCEABLE AGAINST THE INVESTOR IN ACCORDANCE WITH
THEIR RESPECTIVE TERMS, SUBJECT TO BANKRUPTCY, INSOLVENCY, FRAUDULENT TRANSFER,
REORGANIZATION, MORATORIUM AND SIMILAR LAWS OF GENERAL APPLICABILITY, RELATING
TO OR AFFECTING CREDITORS' RIGHTS GENERALLY.
6.2.
PURCHASE ENTIRELY FOR OWN ACCOUNT.
THE SECURITIES TO BE RECEIVED
BY THE INVESTOR HEREUNDER WILL BE ACQUIRED FOR THE INVESTOR'S OWN ACCOUNT, NOT
AS NOMINEE OR AGENT, AND NOT WITH A VIEW TO THE RESALE OR DISTRIBUTION OF ANY
PART THEREOF IN VIOLATION OF THE 1933 ACT, AND THE INVESTOR HAS NO PRESENT
INTENTION OF SELLING, GRANTING ANY PARTICIPATION IN, OR OTHERWISE DISTRIBUTING
THE SAME IN VIOLATION OF THE 1933 ACT.
THE INVESTOR IS NOT A REGISTERED BROKER
DEALER OR AN ENTITY ENGAGED IN THE BUSINESS OF BEING A BROKER DEALER.
6.3.
Investment Experience.
The Investor acknowledges that it can bear
the economic risk and complete loss of its investment in the Securities and has
such knowledge and experience in financial or business matters that it is
capable of evaluating the merits and risks of the investment contemplated
hereby.
The Investor is experienced in making