SHALL HAVE THE RIGHT TO ACQUIRE UP TO THE NUMBER OF
SHARES OF COMMON STOCK EQUAL TO 100% OF THE SHARES TO BE ISSUED TO SUCH
PURCHASER AT THE CLOSING.
(B)
AT THE CLOSING, EACH PURCHASER SHALL DELIVER OR CAUSE TO BE
DELIVERED TO THE COMPANY THE FOLLOWING:
(I)
THIS AGREEMENT DULY EXECUTED BY SUCH PURCHASER;
(II)
THE SUBSCRIPTION AMOUNT INDICATED BELOW SUCH PURCHASER'S ADDRESS
FOR NOTICE ON THE SIGNATURE PAGE OF THIS AGREEMENT, IN UNITED STATES DOLLARS AND
IN IMMEDIATELY AVAILABLE FUNDS, BY WIRE TRANSFER TO THE ACCOUNT DESIGNATED BY
THE COMPANY ON THE SIGNATURE PAGE HERETO; AND
4
(III)
THE REGISTRATION RIGHTS AGREEMENT DULY EXECUTED BY SUCH
PURCHASER.
(C)
ALL REPRESENTATIONS AND WARRANTIES OF THE OTHER PARTY CONTAINED
HEREIN SHALL REMAIN TRUE AND CORRECT AS OF THE CLOSING DATE;
(D)
AS OF THE CLOSING DATE, THERE SHALL HAVE BEEN NO MATERIAL ADVERSE
EFFECT (AS DEFINED IN SECTION 3.1(B)) WITH RESPECT TO THE COMPANY SINCE THE DATE
HEREOF; AND
(E)
FROM THE DATE HEREOF TO THE CLOSING DATE, TRADING IN THE COMMON
STOCK SHALL NOT HAVE BEEN SUSPENDED BY THE COMMISSION (EXCEPT FOR ANY SUSPENSION
OF TRADING OF LIMITED DURATION AGREED TO BY THE COMPANY, WHICH SUSPENSION SHALL
BE TERMINATED PRIOR TO THE CLOSING), AND, AT ANY TIME PRIOR TO SUCH CLOSING
DATE, TRADING IN SECURITIES GENERALLY AS REPORTED BY BLOOMBERG FINANCIAL MARKETS
SHALL NOT HAVE BEEN SUSPENDED OR LIMITED, OR MINIMUM PRICES SHALL NOT HAVE BEEN
ESTABLISHED ON SECURITIES WHOSE TRADES ARE REPORTED BY SUCH SERVICE, OR ON ANY
TRADING
MARKET, NOR SHALL A BANKING MORATORIUM HAVE BEEN DECLARED EITHER BY THE
UNITED STATES OR NEW YORK STATE AUTHORITIES, NOR SHALL THERE HAVE OCCURRED ANY
MATERIAL OUTBREAK OR ESCALATION OF HOSTILITIES OR OTHER NATIONAL OR
INTERNATIONAL CALAMITY OF SUCH MAGNITUDE IN ITS EFFECT ON, OR ANY MATERIAL
ADVERSE CHANGE IN, ANY FINANCIAL MARKET WHICH, IN EACH CASE, IN THE REASONABLE
JUDGMENT OF THE INVESTORS, MAKES IT IMPRACTICABLE OR INADVISABLE TO PURCHASE THE
SHARES AT THE CLOSING.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
3.1
Representations and Warranties of the Company Except as
set forth under the corresponding section of the disclosure letter supplied by
the Company to the Purchaser as of the date of this Agreement (the "Disclosure
Schedules"), the Company hereby makes the following representations and
warranties to each Purchaser as of the date hereof:
(A)
SUBSIDIARIES.
SCHEDULE 3.1(A) LISTS THE COMPANY'S SUBSIDIARIES,
NONE OF WHICH IS MATERIAL TO THE COMPANY.
THE COMPANY OWNS, DIRECTLY OR
INDIRECTLY, ALL OF THE CAPITAL STOCK OR OTHER EQUITY INTERESTS OF EACH
SUBSIDIARY FREE AND CLEAR OF ANY LIEN, CHARGE, SECURITY INTEREST, ENCUMBRANCE,
RIGHT OF FIRST REFUSAL OR OTHER RESTRICTION (COLLECTIVELY, "LIENS"), AND ALL THE
ISSUED AND OUTSTANDING SHARES OF CAPITAL STOCK OR OTHER EQUITY INTERESTS OF EACH
SUBSIDIARY ARE VALIDLY ISSUED AND ARE FULLY PAID, NON-ASSESSABLE AND FREE OF
PREEMPTIVE AND SIMILAR RIGHTS.
(B)
ORGANIZATION AND QUALIFICATION.
THE COMPANY IS AN ENTITY DULY
ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE
JURISDICTION OF ITS ORGANIZATION, WITH THE