BY THE TRANSFER AGENT;
(VII)
A CERTIFICATE OF THE SECRETARY OF THE COMPANY (THE "SECRETARY'S
CERTIFICATE"), DATED AS OF THE CLOSING DATE, CERTIFYING THE RESOLUTIONS ADOPTED
BY THE BOARD OF DIRECTORS OF THE COMPANY APPROVING THE TRANSACTIONS CONTEMPLATED
BY THIS AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS AND THE ISSUANCE OF THE
SECURITIES, CERTIFYING THE CURRENT VERSIONS OF THE CERTIFICATE OR ARTICLES OF
INCORPORATION, AS AMENDED AND BY-LAWS OF THE COMPANY AND CERTIFYING AS TO THE
SIGNATURES AND AUTHORITY OF PERSONS SIGNING THE TRANSACTION DOCUMENTS AND
RELATED DOCUMENTS ON BEHALF OF THE COMPANY; AND
(VIII)
THE COMPLIANCE CERTIFICATE REFERRED TO IN SECTION 5.1(H).
(B)
ON OR PRIOR TO THE CLOSING, EACH PURCHASER SHALL DELIVER OR CAUSE
TO BE DELIVERED TO THE COMPANY THE FOLLOWING (THE "PURCHASER DELIVERABLES"):
(I)
THIS AGREEMENT, DULY EXECUTED BY SUCH PURCHASER;
(II)
ITS SUBSCRIPTION AMOUNT, IN UNITED STATES DOLLARS AND IN
IMMEDIATELY AVAILABLE FUNDS, IN THE AMOUNT SET FORTH AS THE "PURCHASE PRICE"
INDICATED BELOW SUCH PURCHASER'S NAME ON THE APPLICABLE SIGNATURE PAGE HERETO BY
WIRE TRANSFER TO AN ACCOUNT DESIGNATED IN WRITING BY THE COMPANY FOR SUCH
PURPOSE, AS SET FORTH ON EXHIBIT F ATTACHED HERETO;
(III)
THE REGISTRATION RIGHTS AGREEMENT, DULY EXECUTED BY SUCH
PURCHASER;
(IV)
A FULLY COMPLETED AND DULY EXECUTED SELLING SECURITYHOLDER NOTICE
AND QUESTIONNAIRE IN THE FORM ATTACHED AS ANNEX B TO THE REGISTRATION RIGHTS
AGREEMENT; AND
(V)
A FULLY COMPLETED AND DULY EXECUTED ACCREDITED INVESTOR
QUESTIONNAIRE AND STOCK CERTIFICATE QUESTIONNAIRE IN THE FORMS ATTACHED HERETO
AS EXHIBITS E-1 AND E-2, RESPECTIVELY.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
3.1
REPRESENTATIONS AND WARRANTIES OF THE COMPANY. THE COMPANY HEREBY
REPRESENTS AND WARRANTS TO THE PURCHASERS AND TO THE PLACEMENT AGENT THAT,
EXCEPT AS SET FORTH IN THE SCHEDULES DELIVERED HEREWITH:
(A)
SUBSIDIARIES. THE COMPANY HAS NO DIRECT OR INDIRECT SUBSIDIARIES
OTHER THAN THOSE LISTED IN SCHEDULE 3.1(A) HERETO. EXCEPT AS DISCLOSED IN
SCHEDULE 3.1(A) HERETO, THE COMPANY OWNS, DIRECTLY OR INDIRECTLY, ALL OF THE
CAPITAL STOCK OR COMPARABLE EQUITY INTERESTS OF EACH SUBSIDIARY FREE AND CLEAR
OF ANY AND ALL LIENS, AND ALL THE ISSUED AND OUTSTANDING SHARES OF CAPITAL STOCK
OR COMPARABLE EQUITY INTEREST OF EACH SUBSIDIARY ARE VALIDLY ISSUED AND ARE
FULLY PAID, NON-ASSESSABLE AND FREE OF PREEMPTIVE AND SIMILAR RIGHTS TO
SUBSCRIBE FOR OR PURCHASE SECURITIES.
(B)
ORGANIZATION AND QUALIFICATION. THE COMPANY AND EACH SUBSIDIARY IS
AN ENTITY DULY INCORPORATED OR OTHERWISE ORGANIZED, VALIDLY EXISTING AND IN GOOD
STANDING UNDER THE LAWS OF THE JURISDICTION
6
OF ITS INCORPORATION OR ORGANIZATION (AS APPLICABLE), WITH THE REQUISITE POWER
AND AUTHORITY TO OWN OR LEASE AND USE ITS PROPERTIES AND ASSETS AND TO CARRY ON
ITS BUSINESS AS CURRENTLY CONDUCTED. NEITHER THE COMPANY NOR ANY SUBSIDIARY IS
IN VIOLATION OF ANY OF THE PROVISIONS OF ITS RESPECTIVE CERTIFICATE OR ARTICLES
OF INCORPORATION, BYLAWS OR OTHER ORGANIZATIONAL OR CHARTER DOCUMENTS. EACH OF
THE COMPANY AND THE SUBSIDIARIES IS DULY QUALIFIED TO CONDUCT BUSINESS AND IS IN
GOOD STANDING AS A FOREIGN CORPORATION OR OTHER ENTITY IN EACH JURISDICTION IN
WHICH THE NATURE OF