MADE HEREIN OR THEREIN, IN THE LIGHT
OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE HEREIN OR THEREIN, NOT
MISLEADING.
SECTION 4.14
MATERIAL NON-PUBLIC INFORMATION.
EXCEPT FOR THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THE
DISCLOSURE SCHEDULE, NEITHER THE COMPANY NOR ITS EMPLOYEES HAVE DISCLOSED TO THE
INVESTOR, ANY MATERIAL NON-PUBLIC INFORMATION THAT, ACCORDING TO APPLICABLE LAW,
RULE OR REGULATION, SHOULD HAVE BEEN DISCLOSED PUBLICLY BY THE COMPANY PRIOR TO
THE DATE HEREOF BUT WHICH HAS NOT BEEN SO DISCLOSED.
SECTION 4.15
EXEMPTION FROM REGISTRATION; VALID
ISSUANCES.
SUBJECT TO, AND IN RELIANCE ON, THE REPRESENTATIONS, WARRANTIES AND
COVENANTS MADE HEREIN BY THE INVESTOR, THE ISSUANCE AND
13
SALE OF THE SHARES, THE WARRANT, THE WARRANT SHARES AND ANY BLACKOUT SHARES IN
ACCORDANCE WITH THE TERMS AND ON THE BASES OF THE REPRESENTATIONS AND WARRANTIES
SET FORTH IN THIS AGREEMENT, MAY AND SHALL BE PROPERLY ISSUED PURSUANT TO
SECTION 4(2), REGULATION D AND/OR ANY OTHER APPLICABLE FEDERAL AND STATE
SECURITIES LAWS; PROVIDED, HOWEVER, THAT AT THE REQUEST OF AND WITH THE EXPRESS
AGREEMENT OF THE INVESTOR, THE SHARES, AND UNDER CERTAIN CIRCUMSTANCES THE
WARRANT SHARES WILL BE DELIVERED TO THE INVESTOR VIA BOOK ENTRY THROUGH DTC AND
WILL NOT BEAR LEGENDS NOTING RESTRICTIONS AS TO RESALE OF SUCH SHARES UNDER
FEDERAL AND STATE SECURITIES LAWS, NOR WILL SUCH SHARES BE SUBJECT TO STOP
TRANSFER INSTRUCTIONS.
NEITHER THE SALES OF THE SHARES, THE WARRANT, THE
WARRANT SHARES OR ANY BLACKOUT SHARES PURSUANT TO, NOR THE COMPANY'S PERFORMANCE
OF ITS OBLIGATIONS UNDER, THIS AGREEMENT, THE REGISTRATION RIGHTS AGREEMENT, OR
THE WARRANT SHALL (I) RESULT IN THE CREATION OR IMPOSITION OF ANY LIENS,
CHARGES, CLAIMS OR OTHER ENCUMBRANCES UPON THE SHARES, THE WARRANT SHARES OR ANY
BLACKOUT SHARES, OR (II) EXCEPT AS PREVIOUSLY DISCLOSED TO THE INVESTOR IN
WRITING, ENTITLE THE HOLDERS OF ANY OUTSTANDING SHARES OF CAPITAL STOCK OF THE
COMPANY TO PREEMPTIVE OR OTHER RIGHTS TO SUBSCRIBE TO OR ACQUIRE THE SHARES OF
COMMON STOCK OR OTHER SECURITIES OF THE COMPANY.
SECTION 4.16
FORM S-3 ELIGIBILITY.
AS OF THE
DATE HEREOF, THE COMPANY QUALIFIES TO REGISTER THE SHARES AND THE WARRANT SHARES
FOR RESALE BY THE INVESTOR ON FORM S-3 PROMULGATED BY THE COMMISSION, WITHOUT
RELIANCE ON GENERAL INSTRUCTION I.B.6. THEREOF, AND THE COMPANY IS NOT SUBJECT
TO ANY VOLUME LIMITATIONS IMPOSED BY THE SECURITIES ACT OR THE COMMISSION IN
RESPECT OF SUCH REGISTRATION, IT BEING ACKNOWLEDGED THAT THE COMPANY MAY BE
SUBJECT TO THE SHAREHOLDER APPROVAL RULES OF THE PRINCIPAL MARKET (IT BEING
ACKNOWLEDGED AND AGREED THAT THE COMPANY MAY NOT SO QUALIFY AFTER THE DATE
HEREOF).
SECTION 4.17
NO GENERAL SOLICITATION OR
ADVERTISING IN REGARD TO THIS TRANSACTION.
EXCEPT FOR SUCH REGISTRATION
STATEMENTS TO BE FILED AS CONTEMPLATED HEREIN OR IN THE REGISTRATION RIGHTS
AGREEMENT, NEITHER THE COMPANY NOR ANY OF ITS AFFILIATES OR ANY PERSON ACTING ON
ITS OR THEIR BEHALF (I) HAS CONDUCTED ANY GENERAL SOLICITATION (AS THAT TERM IS
USED IN RULE 502(C) OF REGULATION D) OR GENERAL ADVERTISING WITH RESPECT TO ANY
OF THE