WARRANTIES. THE REPRESENTATIONS AND WARRANTIES
OF THE COMPANY CONTAINED HEREIN SHALL BE TRUE AND CORRECT IN ALL MATERIAL
RESPECTS
(EXCEPT FOR THOSE REPRESENTATIONS AND WARRANTIES WHICH ARE QUALIFIED
AS TO MATERIALITY, IN WHICH CASE SUCH REPRESENTATIONS AND WARRANTIES SHALL BE
TRUE AND CORRECT IN ALL RESPECTS) AS OF THE DATE WHEN MADE AND AS OF THE CLOSING
DATE, AS THOUGH MADE ON AND AS OF SUCH DATE, EXCEPT FOR SUCH REPRESENTATIONS AND
WARRANTIES THAT SPEAK AS OF A SPECIFIC DATE.
(B)
PERFORMANCE. THE COMPANY SHALL HAVE PERFORMED, SATISFIED AND
COMPLIED IN ALL MATERIAL RESPECTS WITH ALL COVENANTS, AGREEMENTS AND CONDITIONS
REQUIRED BY THE TRANSACTION DOCUMENTS TO BE PERFORMED, SATISFIED OR COMPLIED
WITH BY IT AT OR PRIOR TO THE CLOSING.
(C)
NO INJUNCTION. NO STATUTE, RULE, REGULATION, EXECUTIVE ORDER,
DECREE, RULING OR INJUNCTION SHALL HAVE BEEN ENACTED, ENTERED, PROMULGATED OR
ENDORSED BY ANY COURT OR GOVERNMENTAL AUTHORITY OF COMPETENT JURISDICTION THAT
PROHIBITS THE CONSUMMATION OF ANY OF THE TRANSACTIONS CONTEMPLATED BY THE
TRANSACTION DOCUMENTS.
(D)
CONSENTS. THE COMPANY SHALL HAVE OBTAINED IN A TIMELY FASHION ANY
AND ALL CONSENTS, PERMITS, APPROVALS, REGISTRATIONS AND WAIVERS NECESSARY FOR
CONSUMMATION OF THE PURCHASE AND SALE OF THE SHARES AT THE CLOSING (INCLUDING
ALL REQUIRED APPROVALS), ALL OF WHICH SHALL BE AND REMAIN SO LONG AS NECESSARY
IN FULL FORCE AND EFFECT.
(E)
NO SUSPENSIONS OF TRADING IN COMMON STOCK; LISTING. THE COMMON
STOCK (I) SHALL BE DESIGNATED FOR QUOTATION OR LISTED ON THE PRINCIPAL TRADING
MARKET AND (II) SHALL NOT HAVE BEEN SUSPENDED, AS OF THE CLOSING DATE, BY THE
COMMISSION OR THE PRINCIPAL TRADING MARKET FROM TRADING ON THE PRINCIPAL TRADING
MARKET NOR SHALL SUSPENSION BY THE COMMISSION OR THE PRINCIPAL TRADING MARKET
HAVE BEEN THREATENED, AS OF THE CLOSING DATE, EITHER (A) IN WRITING BY THE
COMMISSION OR THE PRINCIPAL TRADING MARKET OR (B) BY FALLING BELOW THE MINIMUM
LISTING MAINTENANCE REQUIREMENTS OF THE PRINCIPAL TRADING MARKET.
(F)
COMPANY DELIVERABLES. THE COMPANY SHALL HAVE DELIVERED THE
COMPANY DELIVERABLES IN
ACCORDANCE WITH SECTION 2.2(A).
(G)
COMPLIANCE CERTIFICATE. THE COMPANY SHALL HAVE DELIVERED TO EACH
PURCHASER A CERTIFICATE, DATED AS OF THE CLOSING DATE AND SIGNED BY ITS CHIEF
EXECUTIVE OFFICER OR ITS CHIEF FINANCIAL OFFICER, DATED AS OF THE CLOSING DATE,
CERTIFYING TO THE FULFILLMENT OF THE CONDITIONS SPECIFIED IN SECTIONS 5.1(A) AND
(B) IN THE FORM ATTACHED HERETO AS EXHIBIT F.
(H)
TERMINATION.
THIS AGREEMENT SHALL NOT HAVE BEEN
TERMINATED AS TO SUCH PURCHASER IN ACCORDANCE WITH SECTION 6.17 HEREIN.
5.2
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE COMPANY TO SELL
SHARES. THE COMPANY'S OBLIGATION TO SELL AND ISSUE THE SHARES AT THE CLOSING IS
SUBJECT TO THE FULFILLMENT TO THE SATISFACTION OF THE COMPANY ON OR PRIOR TO THE
CLOSING DATE OF THE FOLLOWING CONDITIONS, ANY OF WHICH MAY BE WAIVED BY THE
COMPANY:
27
(A)
REPRESENTATIONS AND WARRANTIES. THE REPRESENTATIONS AND WARRANTIES
MADE BY THE PURCHASER IN SECTION 3.2 HEREOF SHALL BE TRUE AND CORRECT IN ALL
MATERIAL RESPECTS AS OF THE DATE WHEN MADE, AND AS OF