TO BE, IN COMPLIANCE WITH ALL SUCH
LISTING AND MAINTENANCE REQUIREMENTS.
(X)
APPLICATION OF TAKEOVER PROTECTIONS.
THE COMPANY AND ITS BOARD
OF DIRECTORS HAVE TAKEN ALL NECESSARY ACTION, IF ANY, IN ORDER TO RENDER
INAPPLICABLE ANY CONTROL SHARE ACQUISITION, BUSINESS COMBINATION, POISON PILL
(INCLUDING ANY DISTRIBUTION UNDER A RIGHTS AGREEMENT) OR OTHER SIMILAR
ANTI-TAKEOVER PROVISION UNDER THE COMPANY'S CERTIFICATE OF INCORPORATION (OR
SIMILAR CHARTER DOCUMENTS) OR THE LAWS OF ITS STATE OF INCORPORATION THAT IS OR
COULD BECOME APPLICABLE TO THE PURCHASERS AS A RESULT OF THE PURCHASERS AND THE
COMPANY FULFILLING THEIR OBLIGATIONS OR EXERCISING THEIR RIGHTS UNDER THE
TRANSACTION DOCUMENTS, INCLUDING WITHOUT LIMITATION AS A RESULT OF THE SALE OF
THE SECURITIES PURSUANT TO THIS AGREEMENT AND THE PURCHASERS' OWNERSHIP OF THE
SECURITIES.
(Y)
DISCLOSURE.
EXCEPT WITH RESPECT TO THE MATERIAL TERMS AND
CONDITIONS OF THE TRANSACTIONS CONTEMPLATED BY THE TRANSACTION DOCUMENTS AND FOR
CERTAIN INFORMATION DISCLOSED TO EACH PURCHASER PURSUANT TO A NON-DISCLOSURE
AGREEMENT (THE "ADDITIONAL INFORMATION"), THE COMPANY CONFIRMS THAT, NEITHER IT
NOR ANY OTHER PERSON ACTING ON ITS BEHALF HAS PROVIDED ANY OF THE PURCHASERS OR
THEIR AGENTS OR COUNSEL WITH ANY INFORMATION THAT CONSTITUTES OR MIGHT
CONSTITUTE MATERIAL, NON-PUBLIC INFORMATION.
THE COMPANY UNDERSTANDS AND
CONFIRMS THAT THE PURCHASERS WILL RELY ON THE FOREGOING REPRESENTATION IN
EFFECTING TRANSACTIONS IN SECURITIES OF THE COMPANY.
ALL DISCLOSURE FURNISHED
BY OR ON BEHALF OF THE COMPANY TO THE PURCHASERS REGARDING THE COMPANY, ITS
BUSINESS AND THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING THE DISCLOSURE
SCHEDULES TO THIS AGREEMENT AND THE ADDITIONAL INFORMATION, WITH RESPECT TO THE
REPRESENTATIONS AND WARRANTIES MADE HEREIN, ARE TRUE AND CORRECT WITH RESPECT TO
SUCH REPRESENTATIONS AND WARRANTIES AND DO NOT CONTAIN ANY UNTRUE STATEMENT OF A
MATERIAL FACT OR OMIT TO STATE ANY MATERIAL FACT NECESSARY IN ORDER TO MAKE THE
STATEMENTS MADE THEREIN, IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE
MADE, NOT MISLEADING. THE PRESS RELEASES DISSEMINATED BY THE COMPANY DURING
16
THE TWELVE MONTHS PRECEDING THE DATE OF THIS AGREEMENT TAKEN AS A WHOLE DO NOT
CONTAIN ANY UNTRUE STATEMENT OF A MATERIAL FACT OR OMIT TO STATE A MATERIAL FACT
REQUIRED TO BE STATED THEREIN OR NECESSARY IN ORDER TO MAKE THE STATEMENTS, IN
LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE AND WHEN MADE, NOT
MISLEADING.
THE COMPANY ACKNOWLEDGES AND AGREES THAT NO PURCHASER MAKES OR HAS
MADE ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE TRANSACTIONS
CONTEMPLATED HEREBY OTHER THAN THOSE SPECIFICALLY SET FORTH IN SECTION 3.3
HEREOF.
(Z)
NO INTEGRATED OFFERING. ASSUMING THE ACCURACY OF THE PURCHASERS'
REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 3.3, NEITHER THE COMPANY,
NOR ANY OF ITS AFFILIATES, NOR ANY PERSON ACTING ON ITS OR THEIR BEHALF HAS,
DIRECTLY OR INDIRECTLY, MADE ANY OFFERS OR SALES OF ANY SECURITY OR SOLICITED
ANY OFFERS TO BUY ANY SECURITY, UNDER CIRCUMSTANCES THAT WOULD CAUSE THIS
OFFERING OF THE SECURITIES TO BE INTEGRATED WITH PRIOR OFFERINGS BY THE COMPANY
FOR PURPOSES OF THE SECURITIES ACT OR ANY APPLICABLE SHAREHOLDER APPROVAL
PROVISIONS OF ANY