OF THIS WARRANT AGREEMENT AND THE RESIGNATION OR
REMOVAL OF THE WARRANT AGENT
10.
REPRESENTATIONS AND WARRANTIES.
10.1
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
THE COMPANY HEREBY REPRESENTS AND WARRANTS THAT THE REPRESENTATIONS AND
WARRANTIES OF THE COMPANY SET FORTH IN SECTIONS 3.1, 3.2, 3.3, 3.4, 3.5 AND 3.6
OF THE INVESTMENT AGREEMENT AND STOCK PURCHASE AGREEMENT AND ANY OTHER
REPRESENTATIONS AND WARRANTIES MADE BY THE COMPANY IN ARTICLE III OF THE
INVESTMENT AGREEMENT AND STOCK PURCHASE AGREEMENTS TO THE EXTENT RELATING TO THE
WARRANTS, ARE TRUE AND ACCURATE IN ALL RESPECTS AND NOT MISLEADING IN ANY
RESPECT.
11.
COVENANTS.
11.1
RESERVATION OF COMMON STOCK FOR ISSUANCE ON
EXERCISE OF WARRANTS.
THE COMPANY COVENANTS THAT IT WILL AT ALL TIMES RESERVE
AND KEEP AVAILABLE, FREE FROM PREEMPTIVE RIGHTS, OUT OF ITS AUTHORIZED BUT
UNISSUED COMMON STOCK, SOLELY FOR THE PURPOSE OF ISSUE UPON EXERCISE OF WARRANTS
AS HEREIN PROVIDED, SUCH NUMBER OF SHARES OF COMMON STOCK AS SHALL THEN BE
ISSUABLE UPON THE EXERCISE OF ALL WARRANTS ISSUABLE HEREUNDER PLUS SUCH NUMBER
OF SHARES OF COMMON STOCK AS SHALL THEN BE ISSUABLE UPON THE EXERCISE OF OTHER
OUTSTANDING WARRANTS, OPTIONS AND RIGHTS (WHETHER OR NOT VESTED), THE SETTLEMENT
OF ANY FORWARD SALE, SWAP OR OTHER DERIVATIVE CONTRACT, AND THE CONVERSION OF
ALL OUTSTANDING CONVERTIBLE SECURITIES OR OTHER INSTRUMENTS CONVERTIBLE INTO
COMMON STOCK OR RIGHTS TO ACQUIRE COMMON STOCK. THE COMPANY COVENANTS THAT ALL
SHARES OF COMMON STOCK WHICH SHALL BE ISSUABLE SHALL, UPON SUCH ISSUE, BE DULY
AND VALIDLY ISSUED AND FULLY PAID AND NON-ASSESSABLE.
11.2
NOTICE OF DISTRIBUTIONS.
AT ANY TIME WHEN THE
COMPANY DECLARES ANY DISTRIBUTION ON ITS COMMON STOCK, IT SHALL GIVE NOTICE TO
THE HOLDERS OF ALL THE THEN OUTSTANDING WARRANTS OF ANY SUCH DECLARATION NOT
LESS THAN 15 DAYS PRIOR TO THE RELATED RECORD DATE FOR PAYMENT OF THE
DISTRIBUTION SO DECLARED.
11.3
CANCELLATION OF WARRANTS.
UPON THE EFFECTIVENESS
OF THE PLAN AND IN ACCORDANCE WITH THE INVESTMENT AGREEMENT AND/OR STOCK
PURCHASE AGREEMENTS, AS APPLICABLE, THE WARRANTS, REGARDLESS OF WHETHER OR NOT
VESTED, SHALL BE CANCELLED FOR NO CONSIDERATION AND ALL RIGHTS UNDER THIS
AGREEMENT AND THE WARRANTS SHALL THEREUPON TERMINATE.
12.
MISCELLANEOUS.
12.1
MONEY AND OTHER PROPERTY DEPOSITED WITH THE
WARRANT AGENT.
ANY MONEYS, SECURITIES OR OTHER PROPERTY WHICH AT ANY TIME SHALL
BE DEPOSITED BY THE COMPANY OR ON ITS BEHALF WITH THE WARRANT AGENT PURSUANT TO
THIS AGREEMENT SHALL BE AND ARE HEREBY ASSIGNED, TRANSFERRED
37
AND SET OVER TO THE WARRANT AGENT IN TRUST FOR THE PURPOSE FOR WHICH SUCH
MONEYS, SECURITIES OR OTHER PROPERTY SHALL HAVE BEEN DEPOSITED; BUT SUCH MONEYS,
SECURITIES OR OTHER PROPERTY NEED NOT BE SEGREGATED FROM OTHER FUNDS, SECURITIES
OR OTHER PROPERTY EXCEPT TO THE EXTENT REQUIRED BY LAW. THE WARRANT AGENT SHALL
DISTRIBUTE ANY MONEY DEPOSITED WITH IT FOR PAYMENT AND DISTRIBUTION TO A HOLDER
TO AN ACCOUNT DESIGNATED BY SUCH HOLDER IN SUCH AMOUNT AS IS APPROPRIATE. ANY
MONEY DEPOSITED WITH THE WARRANT AGENT FOR PAYMENT AND DISTRIBUTION TO THE
HOLDERS THAT REMAINS