Common use of Conditions of the Placement Agent’s Obligations Clause in Contracts

Conditions of the Placement Agent’s Obligations. The Placement Agent’s obligation to act as the agent of the Company hereunder, and the Placement Agent’s obligation to use its best efforts to find purchasers for the Units, shall be subject to the accuracy, in all material respects, as of each Issuance Date, of the representations and warranties on the part of the Company herein contained, to the performance by the Company in all material respects of all its agreements herein contained, to the fulfillment of or compliance by the Company with all covenants and conditions hereof, and to the following additional conditions: (a) The Placement Agent shall not have disclosed in writing to the Company that the Memorandum or any amendment or supplement thereto contains an untrue statement of a fact which in the reasonable opinion of counsel to the Placement Agent, is material or omits to state a fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading. (b) Between the date hereof and each Issuance Date, the Company shall not have sustained any loss on account of fire, explosion, flood, accident, calamity or other cause, of such character as shall, in the sole discretion of the Placement Agent, materially adversely affect its business or property. (c) Between the date hereof and each Issuance Date, there shall be no litigation instituted, or to the knowledge of the Company threatened, against the Company and there shall be no proceeding instituted or threatened against the Company or before or by any federal or state commission, regulatory body or administrative agency or other governmental body, domestic or foreign, wherein an unfavorable ruling, decision or finding would materially adversely affect the business, franchises, licenses, permits, operations, prospects or financial condition of the Company. (d) During the period subsequent to the Commencement Date and prior to each Issuance Date, the Company (i) shall have conducted its business in the usual and ordinary manner as the same was being conducted on the Commencement Date and (ii) the Company shall not have suffered or experienced any materially adverse change in its financial condition. (e) The authorization of the Units, the Placement Agent Warrants, the Equity, the Memorandum, and all corporate proceedings and other legal matters incident thereto and to this Agreement shall be reasonably satisfactory in all material respects to counsel to the Placement Agent. (f) The Company shall have furnished to the Placement Agent the opinion of its counsel in substantially the form attached to this Agreement as Exhibit A. (g) The Company shall have furnished to the Placement Agent a certificate of the Chief Executive Officer and the Chief Financial Officer of the Company dated as of each Issuance Date, to the effect that: (i) The representations and warranties of the Company in this Agreement are true and correct in all material respects at and as of each Issuance Date and the Company has complied in all material respects with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to each Issuance Date. (ii) The Memorandum and any amendments and supplements thereto, and all statements contained therein, are true and correct, and neither the Memorandum nor any amendment or supplement thereto includes any untrue statement of a material fact or omits to state any material fact required to be stated therein in light of the circumstances in which they were made or necessary to make the statements therein not misleading, and since the Commencement Date, there has occurred no event required to be set forth in an amended or supplemented Memorandum which has not been so set forth. All the opinions, letters, certificates and evidence mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance satisfactory to counsel of the Placement Agent, whose approval thereof shall not be unreasonably withheld or delayed.

Conditions of the Placement Agent’s Obligations. The Placement Agent’s Agents’ respective obligation to act as the an agent of the Company hereunder, and the Placement Agent’s Agents’ respective obligation to use its their best efforts to find purchasers for the Units, shall be subject to the satisfactory completion of their due diligence examination and the accuracy, in all material respects, as of each Issuance Date, of the representations and warranties on the part of the Company herein contained, to the performance by the Company in all material respects of all its agreements herein contained, to the fulfillment of or compliance by the Company with all covenants and conditions hereof, and to the following additional conditions: (a) The Placement Agent Agents shall not have disclosed in writing to the Company that the Memorandum Subscription Documents or any amendment or supplement thereto contains an untrue statement of a fact which in the reasonable opinion of counsel to the Placement AgentAgents, is material or omits to state a fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading. (b) Between the date hereof and each Issuance Date, the Company shall not have sustained any loss on account of fire, explosion, flood, accident, calamity or other cause, of such character as shall, in the sole discretion of the a Placement Agent, materially adversely affect its business or property. (c) Between the date hereof and each Issuance Date, there shall be no litigation instituted, or to the knowledge of the Company threatened, against the Company and there shall be no proceeding instituted or threatened against the Company or before or by any federal or state commission, regulatory body or administrative agency or other governmental body, domestic or foreign, wherein an unfavorable ruling, decision or finding would materially adversely affect the business, franchises, licenses, permits, operations, prospects or financial condition of the Companyhave a Material Adverse Effect. (d) During the period subsequent to the Commencement Date and prior to each Issuance Date, the Company (i) shall have conducted its business in the usual and ordinary manner as the same was being conducted on the Commencement Date and (ii) the Company shall not have suffered or experienced any materially adverse change in its financial conditionMaterial Adverse Effect. (e) The authorization of the Units, the Placement Agent Warrants, the Equity, the MemorandumSubscription Documents, and all corporate proceedings and other legal matters incident thereto and to this Agreement shall be reasonably satisfactory in all material respects to counsel to the Placement Agent. (f) The Company shall have furnished to the Placement Agent the opinion of its counsel counsel, that: (i) The Company is a validly existing corporation in substantially good standing under the form attached laws of the state of its incorporation with full corporate power and authority to enter into this Agreement and perform its obligations hereunder, and the Company is in good standing as Exhibit A.a foreign corporation in the jurisdictions where it is qualified to do business and where its business requires such qualification. (ii) The Company has an authorized capitalization as described in the Subscription Documents. The Units, Notes, Warrants and Placement Agent Warrants are in due and proper form and conform in all material respects to the rights set forth in the instruments defining the same. Except as set forth in the Subscription Documents or in the Company’s filings with the SEC, no direct or indirect rights to acquire Common Stock exist. (iii) The Equity has been duly and validly issued and are fully paid and does not have any preemptive rights applicable thereto; and all of the Common Stock underlying the Equity has been duly authorized, reserved for issuance and, upon payment or conversion therefor (as applicable) in accordance with the terms of the applicable security, will be duly and validly issued, fully paid and non-assessable and will have no preemptive rights applicable thereto. (iv) This Agreement, the Subscription Documents and all transactions contemplated hereby and thereby have been duly authorized, executed and delivered by the Company and are valid and binding obligations of the Company legally enforceable against the Company in accordance with its terms except as enforceability may be limited by bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights now or hereafter in effect, and to general equitable principles. (v) Neither the execution, delivery or performance of this Agreement nor the consummation of the transactions herein contemplated, nor compliance with the terms hereof by the Company do or will conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, the articles of incorporation, as amended, or the bylaws, as amended, of the Company, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company is a party or by which it or any of its assets or properties is bound, or any law, order, rule, regulation, judgment, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Company or its business or any of its properties, the violation of which could prevent the Company from performing its obligations hereunder or otherwise materially adversely affect the Company; and no consent, approvals, authorizations or orders of agencies, officers or other regulatory authorities are necessary for the valid authorization, issue or sale of the Equity, and the performance by the Company of this Agreement and its consummation of the transactions contemplated hereby and under the Subscription Documents, except under state securities or Blue Sky Laws, as to which no opinion need be expressed. (vi) There are no actions, suits or proceedings at law or in equity pending or threatened, against the Company and there are no proceedings pending or threatened against the Company before or by any federal or state commission, regulatory body or administrative agency or other governmental body wherein, either in any case or in the aggregate, an unfavorable ruling, decision or finding could materially adversely affect the business, franchise, licenses, permits, operations, financial condition or income of the Company which are not disclosed in the Subscription Documents. (vii) The issuance of the Equity is exempt from registration under the Securities Act of 1933, as amended. (g) The Company shall have furnished to the Placement Agent Agents a certificate of the Chief Executive Officer and the Chief Financial Officer of the Company dated as of each Issuance Date, to in the effect that: (i) The representations and warranties of the Company in this Agreement are true and correct in all material respects at and form attached hereto as of each Issuance Date and the Company has complied in all material respects with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to each Issuance Date. (ii) The Memorandum and any amendments and supplements thereto, and all statements contained therein, are true and correct, and neither the Memorandum nor any amendment or supplement thereto includes any untrue statement of a material fact or omits to state any material fact required to be stated therein in light of the circumstances in which they were made or necessary to make the statements therein not misleading, and since the Commencement Date, there has occurred no event required to be set forth in an amended or supplemented Memorandum which has not been so set forth. Exhibit A. All the opinions, letters, certificates and evidence mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance satisfactory to counsel of the Placement AgentAgents, whose approval thereof shall not be unreasonably withheld or delayedwithheld.

Conditions of the Placement Agent’s Obligations. The Placement Agent’s obligation to act as the agent of the Company hereunder, and the Placement Agent’s 's obligation to use its best efforts to find purchasers for the Units, shall be subject to the accuracyfollowing conditions: (a) The Placement Agent shall have satisfactorily completed its due diligence examination. (b) The Company’s representations and warranties herein contained shall be accurate, in all material respects, as of each Issuance Closing Date. (c) The Company shall, of the representations and warranties on the part of the Company herein contained, to the performance by the Company in all material respects respects, have performed upon, fulfilled, or complied with all of all its covenants, conditions and agreements herein containedcontained and in the Transaction Documents, to the fulfillment as of or compliance by the Company with all covenants and conditions hereof, and to the following additional conditions:each Closing Date. (ad) The Placement Agent shall not have disclosed in writing to the Company that the Memorandum Transaction Documents or any amendment or supplement thereto contains an untrue statement of a fact which in the reasonable opinion of counsel to the Placement Agent, is material or omits to state a fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading. (be) Between the date hereof Commencement Date and each Issuance Closing Date, the Company (i) shall have conducted its business in the usual and ordinary manner as the same was being conducted on the Commencement Date, (ii) shall not have sustained any loss on account of fire, explosion, flood, accident, calamity or other cause, of such character as shallshall have a Material Adverse Effect, in the sole discretion of the Placement Agent, materially adversely affect its business (iii) shall not have had any litigation or property. (c) Between the date hereof and each Issuance Date, there shall be no litigation proceeding instituted, or to the knowledge of the Company threatened, against the Company and there shall be no proceeding instituted or threatened against the Company or before or by any federal or state commission, regulatory body or administrative agency or other governmental body, domestic or foreign, wherein an unfavorable ruling, decision or finding would materially adversely affect the businesshave a Material Adverse Effect, franchises, licenses, permits, operations, prospects or financial condition of the Company. (d) During the period subsequent to the Commencement Date and prior to each Issuance Date, the Company (i) shall have conducted its business in the usual and ordinary manner as the same was being conducted on the Commencement Date and (iiiv) the Company shall not have suffered from or experienced any materially adverse change in its financial conditionother event which has had or would have a Material Adverse Effect. (ef) The authorization of the UnitsSecurities, the Placement Agent Warrants, the Equity, the MemorandumTransaction Documents, and all corporate proceedings and other legal matters incident thereto and to this Agreement shall be reasonably satisfactory in all material respects to counsel to the Placement AgentAgent and/or its counsel. (fg) The Company shall have furnished to the Placement Agent the opinion of its counsel dated as of each Closing Date substantially in substantially the form attached to this Agreement hereto as Exhibit A. (gh) The Company shall have furnished to the Placement Agent a certificate of the Chief Executive Officer and the Chief Financial Officer of the Company dated as of each Issuance Date, to Closing Date in the effect that: (i) The representations and warranties of the Company in this Agreement are true and correct in all material respects at and form attached hereto as of each Issuance Date and the Company has complied in all material respects with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to each Issuance Date. (ii) The Memorandum and any amendments and supplements thereto, and all statements contained therein, are true and correct, and neither the Memorandum nor any amendment or supplement thereto includes any untrue statement of a material fact or omits to state any material fact required to be stated therein in light of the circumstances in which they were made or necessary to make the statements therein not misleading, and since the Commencement Date, there has occurred no event required to be set forth in an amended or supplemented Memorandum which has not been so set forth. Exhibit B. All the opinions, letters, certificates and evidence mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance satisfactory to counsel of the Placement AgentAgent or its counsel, whose approval thereof shall not be unreasonably withheld or delayed.

Conditions of the Placement Agent’s Obligations. The Placement Agent’s 's obligation to act as the agent of the Company hereunder, and the Placement Agent’s 's obligation to use its best efforts to find purchasers for the Units, shall be subject to the satisfactory completion of its due diligence examination and the accuracy, in all material respects, as of each Issuance Date, of the representations and warranties on the part of the Company herein contained, to the performance by the Company in all material respects of all its agreements herein contained, to the fulfillment of or compliance by the Company with all covenants and conditions hereof, and to the following additional conditions: (a) The Placement Agent shall not have disclosed in writing to the Company that the Memorandum Subscription Documents or any amendment or supplement thereto contains an untrue statement of a fact which in the reasonable opinion of counsel to the Placement Agent, is material or omits to state a fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading. (b) Between the date hereof and each Issuance Date, the Company shall not have sustained any loss on account of fire, explosion, flood, accident, calamity or other cause, of such character as shall, in the sole discretion of the Placement Agent, materially adversely affect its business or property. (c) Between the date hereof and each Issuance Date, there shall be no litigation instituted, or to the knowledge of the Company threatened, against the Company and there shall be no proceeding instituted or threatened against the Company or before or by any federal or state commission, regulatory body or administrative agency or other governmental body, domestic or foreign, wherein an unfavorable ruling, decision or finding would materially adversely affect the business, franchises, licenses, permits, operations, prospects or prospects, financial condition or income of the Company. (d) During the period subsequent to the Commencement Date and prior to each Issuance Date, the Company (i) shall have conducted its business in the usual and ordinary manner as the same was being conducted on the Commencement Date and (ii) the Company shall not have suffered or experienced any materially adverse change in its financial conditioncondition or prospects. (e) The authorization of the Units, the Placement Agent Warrants, the Equity, the MemorandumSubscription Documents, and all corporate proceedings and other legal matters incident thereto and to this Agreement shall be reasonably satisfactory in all material respects to counsel to the Placement Agent. (f) The Company shall have furnished to the Placement Agent the opinion of its counsel counsel, that: (i) The Company is a validly existing corporation in substantially good standing under the form attached laws of the state of its incorporation with full corporate power and authority to enter into this Agreement and perform its obligations hereunder, and the Company is in good standing as Exhibit A.a foreign corporation in the jurisdictions where it is qualified to do business and where its business requires such qualification. (ii) The Company has an authorized capitalization as described in the Subscription Documents. The Units, Placement Agent Shares and Placement Agent Warrants are in due and proper form and conform in all material respects to the rights set forth in the instruments defining the same. Except as set forth in the Subscription Documents or in the Company's filings with the SEC, no direct or indirect rights to acquire Common Stock exist. (iii) The Equity has been duly and validly issued and are fully paid and does not have any preemptive rights applicable thereto; and all of the Common Stock underlying the Equity has been duly authorized, reserved for issuance and, upon payment or conversion therefor (as applicable) in accordance with the terms of the applicable security, will be duly and validly issued, fully paid and non-assessable and will have no preemptive rights applicable thereto. (iv) This Agreement, the Subscription Documents and all transactions contemplated hereby and thereby have been duly authorized, executed and delivered by the Company and are valid and binding obligations of the Company legally enforceable against the Company in accordance with its terms except as enforceability may be limited by bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights now or hereafter in effect, and to general equitable principles. (v) Neither the execution, delivery or performance of this Agreement nor the consummation of the transactions herein contemplated, nor compliance with the terms hereof by the Company do or will conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, the articles of incorporation, as amended, or the bylaws, as amended, of the Company, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company is a party or by which it or any of its assets or properties is bound, or any law, order, rule, regulation, judgment, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Company or its business or any of its properties, the violation of which could prevent the Company from performing its obligations hereunder or otherwise materially adversely affect the Company; and no consent, approvals, authorizations or orders of agencies, officers or other regulatory authorities are necessary for the valid authorization, issue or sale of the Equity, and the performance by the Company of this Agreement and its consummation of the transactions contemplated hereby and under the Subscription Documents, except under state securities or Blue Sky Laws, as to which no opinion need be expressed. (vi) There are no actions, suits or proceedings at law or in equity pending or threatened, against the Company and there are no proceedings pending or threatened against the Company before or by any federal or state commission, regulatory body or administrative agency or other governmental body wherein, either in any case or in the aggregate, an unfavorable ruling, decision or finding could materially adversely affect the business, franchise, licenses, permits, operations, financial condition or income of the Company which are not disclosed in the Subscription Documents. (vii) The issuance of the Equity is exempt from registration under the Securities Act of 1933, as amended. (g) The Company shall have furnished to the Placement Agent a certificate of the Chief Executive Officer and the Chief Financial Officer of the Company dated as of each Issuance Date, to in the effect that: (i) The representations and warranties of the Company in this Agreement are true and correct in all material respects at and form attached hereto as of each Issuance Date and the Company has complied in all material respects with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to each Issuance Date. (ii) The Memorandum and any amendments and supplements thereto, and all statements contained therein, are true and correct, and neither the Memorandum nor any amendment or supplement thereto includes any untrue statement of a material fact or omits to state any material fact required to be stated therein in light of the circumstances in which they were made or necessary to make the statements therein not misleading, and since the Commencement Date, there has occurred no event required to be set forth in an amended or supplemented Memorandum which has not been so set forth. Exhibit A. All the opinions, letters, certificates and evidence mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance satisfactory to counsel of the Placement Agent, whose approval thereof shall not be unreasonably withheld or delayedwithheld.