trading or quotation facility on
which the Common Stock is then listed or quoted.
"Transaction" means the transaction contemplated by the Transaction Documents.
"Transaction Documents" means this Agreement, the schedules and exhibits
attached hereto,
the Convertible Notes and the Registration Rights Agreement.
ARTICLE II
PURCHASE AND SALE
2.1 Closing.
3
(A)
SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN SECTIONS 5.1(A) AND 5.2
HEREIN, AT THE CLOSING THE COMPANY SHALL ISSUE AND SELL TO EACH INVESTOR, AND
EACH INVESTOR SHALL, SEVERALLY AND NOT JOINTLY, PURCHASE FROM THE COMPANY, SUCH
NUMBER OF CONVERTIBLE NOTES SET FORTH OPPOSITE SUCH INVESTOR'S NAME ON EXHIBIT A
HERETO UNDER THE HEADING "CONVERTIBLE NOTES."
THE DATE AND TIME OF THE CLOSING
AND SHALL BE 10:00 A.M., NEW YORK CITY TIME, ON THE CLOSING DATE.
THE CLOSING
SHALL TAKE PLACE AT THE OFFICES OF INVESTOR COUNSEL.
(B)
AT THE CLOSING, EACH INVESTOR SHALL DELIVER OR CAUSE TO BE DELIVERED TO
THE COMPANY THE PURCHASE PRICE SET FORTH OPPOSITE SUCH INVESTOR'S NAME ON
EXHIBIT A HERETO UNDER THE HEADING "PURCHASE PRICE" IN UNITED STATES DOLLARS AND
IN IMMEDIATELY AVAILABLE FUNDS, BY WIRE TRANSFER TO AN ACCOUNT DESIGNATED IN
WRITING TO SUCH INVESTOR BY THE COMPANY FOR SUCH PURPOSE.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
THE COMPANY HEREBY
REPRESENTS AND WARRANTS TO EACH INVESTOR THAT, EXCEPT AS SET FORTH IN THE SEC
REPORTS (AS HEREINAFTER DEFINED) OR IN THE SCHEDULE OF EXCEPTIONS ATTACHED AS
EXHIBIT G TO THIS AGREEMENT, WHICH EXCEPTIONS SHALL BE DEEMED TO BE PART OF THE
REPRESENTATIONS AND WARRANTIES MADE HEREUNDER, THE FOLLOWING REPRESENTATIONS ARE
TRUE AND COMPLETE AS OF THE DATE HEREOF.
THE SCHEDULE OF EXCEPTIONS SHALL BE
ARRANGED IN SECTIONS CORRESPONDING TO THE NUMBERED AND LETTERED SECTIONS AND
SUBSECTIONS CONTAINED IN THIS SECTION 3, AND THE DISCLOSURES IN ANY SECTION OR
SUBSECTION OF THE SCHEDULE OF EXCEPTIONS SHALL QUALIFY OTHER SECTIONS AND
SUBSECTIONS IN THIS SECTION 2 ONLY TO THE EXTENT IT IS REASONABLY APPARENT FROM
A READING OF THE DISCLOSURE THAT SUCH DISCLOSURE IS APPLICABLE TO SUCH OTHER
SECTIONS AND SUBSECTIONS:
(A)
ORGANIZATION AND QUALIFICATION.
EACH OF THE COMPANY AND THE SIGNIFICANT
SUBSIDIARIES IS AN ENTITY DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING
UNDER THE LAWS OF THE JURISDICTION OF ITS INCORPORATION OR ORGANIZATION (AS
APPLICABLE), WITH THE REQUISITE LEGAL AUTHORITY TO OWN AND USE ITS PROPERTIES
AND ASSETS AND TO CARRY ON ITS BUSINESS AS CURRENTLY CONDUCTED.
NEITHER THE
COMPANY NOR ANY SIGNIFICANT 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 SIGNIFICANT
SUBSIDIARIES IS DULY QUALIFIED TO DO BUSINESS AND IS IN GOOD STANDING AS A
FOREIGN CORPORATION OR OTHER ENTITY IN EACH JURISDICTION IN WHICH THE NATURE OF
THE BUSINESS CONDUCTED OR PROPERTY OWNED BY IT MAKES SUCH QUALIFICATION
NECESSARY, EXCEPT WHERE THE FAILURE TO BE SO QUALIFIED OR IN GOOD STANDING, AS
THE CASE MAY BE, WOULD NOT REASONABLY