Non-Contravention The execution, delivery and performance of this Agreement by the Company, and the consummation by the Company of the transactions contemplated hereby (including issuance of the Securities), do not (i) contravene or conflict with the Certificate of Incorporation (the “Certificate of Incorporation”) or Bylaws (the “Bylaws”) of the Company or any Subsidiary; (ii) assuming the accuracy of the representations and warranties made by the Purchasers in Section 4 hereof, constitute a violation in any material respect of any provision of any federal, state, local or foreign law, rule, regulation, order, judgment or decree applicable to the Company or any Subsidiary or by which any of the Company’s or any Subsidiary’s assets are bound or affected; or (iii) constitute a default or require any consent under, give rise to any right of termination, cancellation or acceleration of, or to a loss of any material benefit to which the Company or any Subsidiary is entitled under, or result in the creation or imposition of any material lien, claim or encumbrance on any assets of the Company or any Subsidiary under, any agreement, credit facility, debt or other instrument or other understanding to which the Company or any Subsidiary is a party or is bound or any permit, license or similar right relating to the Company or any Subsidiary or by which the Company or any Subsidiary may be bound or affected. The transactions contemplated under this Agreement (together with any issuance by the Company or entering into by the Company of any options or other derivative securities in respect of its stock, whether or not undertaken as part of the transactions entered into under this Agreement), is not intended to be, and do not constitute, fraudulent, deceptive, manipulative or otherwise unlawful acts, practices or trading activities by the Company for purposes of applicable U.S. federal and state securities laws and regulations and all rules and regulations of any exchange on which the Company’s stock is listed, including, without limitation, any actions or omissions which would violate or require the disgorgement of profits under any of: (i) Sections 9(a), 10(b) or 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any rules or regulations adopted thereunder; (ii) Regulation M under the Securities Act; or (iii) Rule 4310(c)(16) of the NASDAQ Stock Market.
