THE PRICING DISCLOSURE PACKAGE AND THE OFFERING
MEMORANDUM, NEITHER THE COMPANY NOR ITS SUBSIDIARIES IS INCURRING DEBTS OR
LIABILITIES BEYOND ITS ABILITY TO PAY AS SUCH DEBTS AND LIABILITIES MATURE; AND
(IV) NEITHER THE COMPANY NOR ITS SUBSIDIARIES IS ENGAGED IN ANY BUSINESS OR
TRANSACTION, AND NEITHER OF THEM IS ABOUT TO ENGAGE IN ANY BUSINESS OR
TRANSACTION, FOR WHICH ITS PROPERTY WOULD CONSTITUTE UNREASONABLY SMALL CAPITAL
AFTER GIVING DUE CONSIDERATION TO THE PREVAILING PRACTICE IN THE INDUSTRY IN
WHICH EACH OF THE COMPANY AND ITS SUBSIDIARIES IS ENGAGED. IN COMPUTING THE
AMOUNT OF SUCH CONTINGENT LIABILITIES AT ANY TIME, IT IS INTENDED THAT SUCH
LIABILITIES WILL BE COMPUTED AT THE AMOUNT THAT, IN THE LIGHT OF ALL THE FACTS
AND CIRCUMSTANCES EXISTING AT SUCH TIME, REPRESENTS THE AMOUNT THAT CAN
REASONABLY BE EXPECTED TO BECOME AN ACTUAL OR MATURED LIABILITY.
Any certificate signed by any officer of the Company and specifically identified
in and required to be delivered to the Representative under this Agreement or
the Registration Rights Agreement in connection with the offering of the
Securities shall be deemed a representation and warranty by the Company, as to
matters covered thereby, to each Initial Purchaser.
17
3.
PURCHASE OF THE SECURITIES BY THE
INITIAL PURCHASERS, AGREEMENTS TO SELL, PURCHASE AND RESELL.
(A)
THE COMPANY
HEREBY AGREES, ON THE BASIS OF THE REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF
THE INITIAL PURCHASERS CONTAINED HEREIN AND SUBJECT TO ALL THE TERMS AND
CONDITIONS SET FORTH HEREIN, TO ISSUE AND SELL TO THE INITIAL PURCHASERS AND,
UPON THE BASIS OF THE REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY
HEREIN CONTAINED AND SUBJECT TO ALL THE TERMS AND CONDITIONS SET FORTH HEREIN,
EACH INITIAL PURCHASER AGREES, SEVERALLY AND NOT JOINTLY, TO PURCHASE FROM THE
COMPANY, AT A PURCHASE PRICE OF 97.0% OF THE PRINCIPAL AMOUNT THEREOF (THE
"PURCHASE PRICE"), THE TOTAL PRINCIPAL AMOUNT OF SECURITIES SET FORTH OPPOSITE
THE NAME OF SUCH INITIAL PURCHASER IN SCHEDULE I HERETO.
THE COMPANY SHALL NOT
BE OBLIGATED TO DELIVER ANY OF THE SECURITIES TO BE DELIVERED HEREUNDER EXCEPT
UPON PAYMENT FOR ALL OF THE SECURITIES TO BE PURCHASED AS PROVIDED HEREIN.
(B)
ON THE BASIS OF THE REPRESENTATIONS AND
WARRANTIES CONTAINED IN THIS AGREEMENT, AND SUBJECT TO ITS TERMS AND CONDITIONS,
THE COMPANY AGREES TO SELL TO THE INITIAL PURCHASERS THE ADDITIONAL SECURITIES,
AND THE INITIAL PURCHASERS SHALL HAVE THE RIGHT TO PURCHASE, SEVERALLY AND NOT
JOINTLY, UP TO $37,500,000 AGGREGATE PRINCIPAL AMOUNT OF ADDITIONAL SECURITIES
AT THE PURCHASE PRICE. THE REPRESENTATIVE MAY EXERCISE THIS RIGHT ON BEHALF OF
THE INITIAL PURCHASERS IN WHOLE OR FROM TIME TO TIME IN PART BY GIVING WRITTEN
NOTICE NOT LATER THAN 30 DAYS AFTER THE DATE OF THIS AGREEMENT.
ANY EXERCISE
NOTICE SHALL SPECIFY THE PRINCIPAL AMOUNT OF ADDITIONAL SECURITIES TO BE
PURCHASED BY THE INITIAL PURCHASERS AND THE DATE ON WHICH SUCH ADDITIONAL
SECURITIES ARE TO BE PURCHASED.
EACH PURCHASE DATE MUST BE AT LEAST ONE
BUSINESS DAY AFTER THE WRITTEN NOTICE IS GIVEN AND MAY NOT BE