THIS AGREEMENT
BASED ON ANY ARRANGEMENT OR AGREEMENT MADE BY OR ON BEHALF OF THE COMPANY.
(F)
ACKNOWLEDGEMENT.
THE COMPANY
ACKNOWLEDGES THAT THERMO HAS NOT MADE ANY REPRESENTATIONS OR WARRANTIES TO IT
EXCEPT TO THE EXTENT OF THE REPRESENTATIONS AND WARRANTIES OF THERMO IN THIS
AGREEMENT.
(2) Thermo hereby represents, warrants and certifies to the Company that each of
the following representations and warranties with respect to itself is true and
correct:
(A)
ORGANIZATION AND AUTHORITY.
THERMO HAS ALL
REQUISITE POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND TO CONSUMMATE THE
TRANSACTIONS CONTEMPLATED HEREBY.
THERMO IS DULY ORGANIZED OR FORMED AND
VALIDLY EXISTING AS A LIMITED LIABILITY COMPANY, AND IN GOOD STANDING UNDER THE
LAWS OF THE STATE OF COLORADO.
THE EXECUTION AND DELIVERY BY THERMO OF THIS
AGREEMENT AND THE CONSUMMATION BY THERMO OF THE TRANSACTION HAVE BEEN DULY
AUTHORIZED.
THIS AGREEMENT, WHEN DULY EXECUTED AND DELIVERED BY THERMO WILL
CONSTITUTE A LEGAL, VALID AND BINDING OBLIGATION OF THERMO, ENFORCEABLE AGAINST
THERMO IN ACCORDANCE WITH ITS TERMS, EXCEPT AS THE ENFORCEMENT THEREOF MAY BE
LIMITED BY BANKRUPTCY, INSOLVENCY, FRAUDULENT CONVEYANCE, REORGANIZATION,
MORATORIUM OR SIMILAR LAWS AFFECTING THE ENFORCEMENT OF CREDITORS' RIGHTS
GENERALLY AND GENERAL EQUITABLE PRINCIPLES WHETHER IN A PROCEEDING IN EQUITY OR
AT LAW.
(B)
NONCONTRAVENTION.
THE EXECUTION AND
DELIVERY OF THIS AGREEMENT, THE CONSUMMATION OF THE TRANSACTION AND THE
FULFILLMENT OF AND COMPLIANCE WITH THE TERMS AND CONDITIONS HEREOF DO NOT AND
WILL NOT WITH THE PASSING OF TIME OR
4
GIVING OF NOTICE (I) RESULT IN A VIOLATION OF THE ORGANIZATIONAL DOCUMENTS OF
THERMO, (II) VIOLATE ANY LAW, RULE, REGULATION, PROVISION OF ANY JUDICIAL OR
ADMINISTRATIVE ORDER, AWARD, JUDGMENT OR DECREE APPLICABLE TO THERMO, OR
(II) CONFLICT WITH, RESULT IN A BREACH OF OR RIGHT TO CANCEL OR CONSTITUTE A
DEFAULT UNDER ANY AGREEMENT OR INSTRUMENT TO WHICH THERMO IS A PARTY, BY WHICH
THERMO IS BOUND OR TO WHICH THERMO IS SUBJECT.
(C)
SECURITIES ACT.
THERMO IS ACQUIRING
THE SECURITIES FOR ITS OWN ACCOUNT FOR INVESTMENT ONLY AND NOT WITH A PRESENT
VIEW TOWARDS THE PUBLIC SALE OR DISTRIBUTION THEREOF, EXCEPT PURSUANT TO SALES
REGISTERED OR EXEMPTED UNDER THE SECURITIES ACT.
(D)
THERMO'S QUALIFICATIONS.
THERMO IS AN
"ACCREDITED INVESTOR" AS SUCH TERM IS DEFINED IN REGULATION D UNDER THE
SECURITIES ACT.
(E)
TRANSFER OR RESALE.
THERMO UNDERSTANDS
THAT THE SECURITIES HAVE NOT BEEN AND ARE NOT BEING REGISTERED UNDER THE
SECURITIES ACT OR ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED FOR SALE,
SOLD, ASSIGNED OR TRANSFERRED WITHOUT REGISTRATION UNDER THE SECURITIES ACT OR
AN EXEMPTION THEREFROM, AND THAT THE GROUNDS FOR EXEMPTION OF THE TRANSACTION IS
SECTION 4(2) OF THE SECURITIES ACT.
THERMO UNDERSTANDS THAT A LEGEND
RESTRICTING TRANSFER EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT WILL BE
REFLECTED ON THE CERTIFICATES OR RECORDS REPRESENTING THE SECURITIES.
(F)
STOCKHOLDER APPROVAL.
THERMO UNDERSTANDS
THAT NEITHER THE WARRANTS MAY BE EXERCISED NOR THE COMMON EQUITY MAY BE ISSUED
UNTIL RECEIPT OF ANY NECESSARY APPROVAL BY A MAJORITY OF THE STOCKHOLDERS OF THE
COMPANY