OR OTHERWISE, OR CAUSE
THE OFFER AND SALE OF THE COMMON SHARES CONTEMPLATED HEREBY TO REQUIRE APPROVAL
OF SHAREHOLDERS OF THE COMPANY FOR PURPOSES OF NEW YORK LAW OR ANY APPLICABLE
SHAREHOLDER APPROVAL REQUIREMENTS, INCLUDING, WITHOUT LIMITATION, UNDER THE
RULES AND REGULATIONS OF ANY EXCHANGE OR AUTOMATED QUOTATION SYSTEM ON WHICH ANY
OF THE SECURITIES OF THE COMPANY ARE LISTED OR QUOTED. FOLLOWING THE CLOSING,
NONE OF THE COMPANY, ITS SUBSIDIARIES AND ANY PERSON ACTING ON ANY OF THEIR
BEHALF WILL TAKE ANY ACTION OR STEPS REFERRED TO IN THE PRECEDING SENTENCE THAT
WOULD REQUIRE REGISTRATION OF ANY OF THE COMMON SHARES UNDER THE 1933 ACT OR
CAUSE THE OFFERING OF THE COMMON SHARES TO BE INTEGRATED WITH OTHER OFFERINGS
FOR PURPOSES OF ANY SUCH APPLICABLE SHAREHOLDER APPROVAL PROVISIONS; PROVIDED,
HOWEVER, THAT THE FOREGOING SHALL NOT APPLY TO ANY OFFERING OR ISSUANCE
INITIATED BY, PARTICIPATED IN OR CONSENTED TO BY THE BUYER OR ITS AFFILIATES OR
THE DIRECTOR DESIGNEES.
FOR PURPOSES OF THIS AGREEMENT, "AFFILIATE" MEANS, WITH
RESPECT TO ANY PERSON, ANY OTHER PERSON THAT DIRECTLY OR INDIRECTLY CONTROLS, IS
CONTROLLED BY, OR IS UNDER COMMON CONTROL WITH, SUCH PERSON.
9
(I)
APPLICATION OF TAKEOVER PROTECTIONS; RIGHTS AGREEMENT;
CORPORATE OPPORTUNITY DOCTRINE. THE COMPANY AND ITS BOARD HAVE TAKEN ALL
POSSIBLE ACTION IN ORDER TO RENDER INAPPLICABLE (I) ALL RESTRICTIONS ON THE
BUYER AS AN "INTERESTED SHAREHOLDER" UNDER SECTION 912 OF THE NEW YORK BUSINESS
CORPORATION LAW AND (II) ALL RESTRICTIONS ON THE BUYER UNDER ANY CONTROL SHARE
ACQUISITION, BUSINESS COMBINATION, POISON PILL (INCLUDING ANY DISTRIBUTION UNDER
A RIGHTS AGREEMENT) OR OTHER SIMILAR ANTI-TAKEOVER PROVISION UNDER THE
CERTIFICATE OF INCORPORATION (AS DEFINED BELOW) OR THE LAWS OF THE JURISDICTION
OF ITS FORMATION, WHICH ARE OR COULD BECOME APPLICABLE TO THE BUYER AS A RESULT
OF ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY OF THE OTHER
TRANSACTION DOCUMENTS, INCLUDING, WITHOUT LIMITATION, THE COMPANY'S ISSUANCE OF
THE COMMON SHARES AND THE BUYER'S OWNERSHIP OF THE COMMON SHARES.
(J)
SEC DOCUMENTS; FINANCIAL STATEMENTS. EXCEPT AS SET FORTH ON
SCHEDULE 3(J), DURING THE TWO (2) YEARS PRIOR TO THE DATE HEREOF, THE COMPANY
HAS TIMELY FILED ALL REPORTS, SCHEDULES, FORMS, STATEMENTS AND OTHER DOCUMENTS
REQUIRED TO BE FILED BY IT WITH THE SEC PURSUANT TO THE REPORTING REQUIREMENTS
OF THE 1934 ACT (ALL OF THE FOREGOING FILED PRIOR TO THE DATE HEREOF OR PRIOR TO
THE CLOSING DATE, AND ALL EXHIBITS INCLUDED THEREIN AND FINANCIAL STATEMENTS,
NOTES AND SCHEDULES THERETO AND DOCUMENTS INCORPORATED BY REFERENCE THEREIN
BEING HEREINAFTER REFERRED TO AS THE "SEC DOCUMENTS").
THE COMPANY HAS
DELIVERED TO THE BUYER OR ITS REPRESENTATIVES TRUE, CORRECT AND COMPLETE COPIES
OF THE SEC DOCUMENTS NOT AVAILABLE ON THE EDGAR SYSTEM.
AS OF THEIR RESPECTIVE
FILING DATES, THE SEC DOCUMENTS COMPLIED IN ALL MATERIAL RESPECTS WITH THE
REQUIREMENTS OF THE 1934 ACT AND THE RULES AND REGULATIONS OF THE SEC
PROMULGATED THEREUNDER APPLICABLE TO THE SEC DOCUMENTS, AND NONE OF THE SEC
DOCUMENTS, AT THE TIME THEY WERE FILED WITH THE SEC, CONTAINED