4
holder provides the Company with reasonable assurance that the Securities can be
sold, assigned or transferred pursuant to Rule 144(k).
(H)
AUTHORIZATION; VALIDITY; ENFORCEMENT.
THIS
AGREEMENT HAS BEEN, AND THE REGISTRATION RIGHTS AGREEMENT SHALL HAVE BEEN BY THE
CLOSING DATE, DULY AND VALIDLY AUTHORIZED, EXECUTED AND DELIVERED ON BEHALF OF
SUCH BUYER AND SHALL CONSTITUTE THE LEGAL, VALID AND BINDING OBLIGATIONS OF SUCH
BUYER ENFORCEABLE AGAINST SUCH BUYER IN ACCORDANCE WITH THEIR RESPECTIVE TERMS,
EXCEPT AS SUCH ENFORCEABILITY MAY BE LIMITED BY GENERAL PRINCIPLES OF EQUITY OR
APPLICABLE BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM, LIQUIDATION AND
OTHER SIMILAR LAWS RELATING TO, OR AFFECTING GENERALLY, THE ENFORCEMENT OF
APPLICABLE CREDITORS' RIGHTS AND REMEDIES.
(I)
RESIDENCY.
SUCH BUYER IS A RESIDENT OF
THAT COUNTRY OR STATE SPECIFIED BELOW ITS ADDRESS ON THE SCHEDULE OF BUYERS.
(J)
ORGANIZATION.
SUCH BUYER IS DULY
ORGANIZED AND VALIDLY EXISTING IN GOOD STANDING UNDER THE LAWS OF THE
JURISDICTION OF ITS ORGANIZATION, AND HAS THE REQUISITE POWER AND AUTHORIZATION
TO EXECUTE AND DELIVER THIS AGREEMENT AND TO CONSUMMATE THE TRANSACTION
CONTEMPLATED HEREBY.
(K)
NO CONFLICTS.
THE EXECUTION, DELIVERY AND
PERFORMANCE OF THIS AGREEMENT AND THE REGISTRATION RIGHTS AGREEMENT BY SUCH
BUYER AND THE CONSUMMATION BY SUCH BUYER OF THE TRANSACTIONS CONTEMPLATED HEREBY
AND THEREBY WILL NOT (I) RESULT IN A VIOLATION OF THE CONSTITUENT DOCUMENTS OF
SUCH BUYER OR (II) CONFLICT WITH, OR CONSTITUTE A DEFAULT (OR AN EVENT WHICH
WITH NOTICE OR LAPSE OF TIME OR BOTH WOULD BECOME A DEFAULT) UNDER, OR GIVE TO
OTHERS ANY RIGHTS OF TERMINATION, AMENDMENT, ACCELERATION OR CANCELLATION OF,
ANY MATERIAL AGREEMENT, INDENTURE OR INSTRUMENT TO WHICH SUCH BUYER IS A PARTY,
OR (III) RESULT IN A VIOLATION OF ANY LAW, RULE, REGULATION, ORDER, JUDGMENT OR
DECREE APPLICABLE TO SUCH BUYER OR BY WHICH ANY PROPERTY OR ASSET OF SUCH BUYER
IS BOUND OR AFFECTED, EXCEPT IN THE CASE OF CLAUSES (II) AND (III), FOR SUCH
BREACHES OR DEFAULTS AS WOULD NOT BE REASONABLY EXPECTED TO HAVE A MATERIAL
ADVERSE EFFECT ON SUCH BUYER'S ABILITY TO CONSUMMATE THE TRANSACTIONS
CONTEMPLATED HEREBY.
3.
REPRESENTATIONS AND WARRANTIES OF THE
COMPANY.
Other than as set forth in the SEC Documents (as defined below) and in a
Schedule of Exceptions delivered by the Company to the Buyers concurrently with
the execution of this Agreement, the Company represents and warrants to each
Buyer as of the Closing, or such other date as specified, that (for the purposes
of this Section 3, "knowledge" of the Company shall mean the actual knowledge of
the officers of the Company):
(A)
ORGANIZATION AND QUALIFICATION.
THE
COMPANY AND ITS "SUBSIDIARIES" (WHICH FOR PURPOSES OF THIS AGREEMENT MEANS ANY
ENTITY IN WHICH THE COMPANY, DIRECTLY OR INDIRECTLY, OWNS MORE THAN 50% OF THE
CAPITAL STOCK OR HOLDS A MORE THAN 50% EQUITY OR SIMILAR INTEREST) ARE ENTITIES
DULY ORGANIZED AND VALIDLY EXISTING IN GOOD STANDING UNDER THE LAWS OF THE
JURISDICTION IN WHICH THEY ARE ORGANIZED, AND HAVE THE REQUISITE CORPORATE OR
OTHER POWER AND AUTHORIZATION TO OWN THEIR PROPERTIES AND