THREAT OF ANY PROCEEDING FOR THAT
PURPOSE.
(D)
THE PURCHASER FURTHER COVENANTS TO NOTIFY THE COMPANY PROMPTLY OF
THE SALE OF ANY OF ITS SHARES.
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5.3
DUE EXECUTION, DELIVERY AND PERFORMANCE
(A)
THIS AGREEMENT HAS BEEN DULY EXECUTED AND DELIVERED BY THE
PURCHASER AND CONSTITUTES A VALID AND BINDING OBLIGATION OF THE PURCHASER,
ENFORCEABLE AGAINST THE PURCHASER IN ACCORDANCE WITH ITS TERMS, EXCEPT AS SUCH
ENFORCEABILITY MAY BE LIMITED BY (I) APPLICABLE BANKRUPTCY OR OTHER SIMILAR LAWS
RELATING TO, OR AFFECTING GENERALLY THE ENFORCEMENT OF, CREDITORS' RIGHTS OR
REMEDIES, (II) GENERAL PRINCIPLES OF EQUITY OR (III) APPLICABLE LAWS AND
CONSIDERATION OF PUBLIC POLICY RELATING TO INDEMNIFICATION AND CONTRIBUTION
PROVISIONS.
(B)
THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT AND THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED IN THIS AGREEMENT AND THE
FULFILLMENT OF THE TERMS OF THIS AGREEMENT HAVE BEEN DULY AUTHORIZED BY ALL
NECESSARY CORPORATE, AGENCY OR OTHER ACTION AND WILL NOT CONFLICT WITH OR
VIOLATE THE PROVISIONS OF THE ORGANIZATIONAL DOCUMENTS OF THE PURCHASER,
INCLUDING, WITHOUT LIMITATION, ITS CHARTER, BYLAWS, PARTNERSHIP AGREEMENT OR
OPERATING AGREEMENT, AS APPLICABLE, OR ANY APPLICABLE STATUTE, LAW, RULE,
REGULATION, ORDINANCE, DECISION, DIRECTIVE OR ORDER, EXCEPT AS WOULD NOT,
INDIVIDUALLY OR IN THE AGGREGATE, HAVE A MATERIAL ADVERSE EFFECT ON THE ABILITY
OF THE PURCHASER TO CONSUMMATE THE TRANSACTION CONTEMPLATED HEREUNDER.
6.
SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS
Notwithstanding any investigation made by any party to this Agreement, all
covenants, agreements, representations and warranties made by the Company and
the Purchasers in this Agreement shall survive the execution of this Agreement,
the delivery to the Purchasers of the Shares being purchased and the payment
therefor.
7.
FORM D FILING; REGISTRATION; COMPLIANCE WITH THE SECURITIES ACT;
COVENANTS
7.1
REGULATION D.
THE COMPANY SHALL:
FILE IN A TIMELY MANNER A
FORM D RELATING TO THE SALE OF THE SHARES UNDER THIS AGREEMENT, PURSUANT TO
REGULATION D UNDER THE SECURITIES ACT;
7.2
REGISTRATION OF SHARES
The Company shall:
(A)
AS SOON AS PRACTICABLE AFTER THE CLOSING DATE, BUT IN NO EVENT
LATER THAN THE 45TH DAY FOLLOWING THE CLOSING DATE, PREPARE AND FILE WITH THE
COMMISSION A REGISTRATION STATEMENT ON FORM S-3 (OR, IF THE COMPANY IS
INELIGIBLE TO USE FORM S-3, THEN ON SUCH OTHER FORM AS IS AVAILABLE FOR SUCH
REGISTRATION) REGISTERING UNDER THE SECURITIES ACT THE SALE OF THE SHARES BY THE
PURCHASERS FROM TIME TO TIME ON THE FACILITIES OF ANY NATIONAL SECURITIES
EXCHANGE ON WHICH THE COMMON STOCK IS TRADED OR IN PRIVATELY NEGOTIATED
TRANSACTIONS (THE "REGISTRATION STATEMENT");
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(B)
USE ITS REASONABLE BEST EFFORTS TO CAUSE THE COMMISSION TO NOTIFY
THE COMPANY OF THE COMMISSION'S WILLINGNESS TO DECLARE THE REGISTRATION
STATEMENT EFFECTIVE ON OR BEFORE 90 DAYS AFTER THE CLOSING DATE;
(C)
CAUSE THE SHARES TO BE DULY LISTED FOR TRADING ON THE NASDAQ
GLOBAL MARKET CONCURRENTLY WITH THE EFFECTIVENESS OF THE REGISTRATION STATEMENT;
(D)
IF FOR ANY REASON, THE SEC DOES NOT PERMIT ALL SHARES TO BE
INCLUDED IN THE REGISTRATION STATEMENT SUCH THAT THE REGISTRATION STATEMENT MAY