ACCELERATION OR CANCELLATION OF, ANY
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
(INCLUDING FEDERAL AND STATE SECURITIES LAWS) APPLICABLE TO SUCH BUYER, EXCEPT
IN THE CASE OF CLAUSES (II) AND (III) ABOVE, FOR SUCH CONFLICTS, DEFAULTS,
RIGHTS OR VIOLATIONS WHICH WOULD NOT, INDIVIDUALLY OR IN THE AGGREGATE,
REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT ON THE ABILITY OF SUCH
BUYER TO PERFORM ITS OBLIGATIONS HEREUNDER.
(J)
RESIDENCY.
SUCH BUYER IS A RESIDENT OF THAT JURISDICTION
SPECIFIED BELOW ITS ADDRESS ON THE SCHEDULE OF BUYERS.
(K)
CERTAIN TRADING ACTIVITIES.
OTHER THAN WITH RESPECT TO THE
TRANSACTIONS CONTEMPLATED HEREIN, SINCE THE TIME THAT SUCH BUYER WAS FIRST
CONTACTED BY THE COMPANY, THE AGENT (AS DEFINED BELOW) OR ANY OTHER PERSON
REGARDING THE INVESTMENT IN THE COMPANY SET FORTH HEREIN NEITHER THE BUYER NOR
ANY AFFILIATE OF SUCH BUYER WHICH (X) HAD KNOWLEDGE OF THE TRANSACTIONS
CONTEMPLATED HEREBY, (Y) HAS OR SHARES DISCRETION RELATING TO SUCH BUYER'S
INVESTMENTS OR TRADING OR INFORMATION CONCERNING SUCH BUYER'S INVESTMENTS AND
(Z) IS SUBJECT TO SUCH BUYER'S REVIEW OR INPUT CONCERNING SUCH AFFILIATE'S
INVESTMENTS OR TRADING (COLLECTIVELY, "TRADING AFFILIATES") HAS DIRECTLY OR
INDIRECTLY, NOR HAS ANY PERSON ACTING ON BEHALF OF OR PURSUANT TO ANY
UNDERSTANDING WITH SUCH BUYER OR TRADING AFFILIATE, EFFECTED OR AGREED TO EFFECT
ANY TRANSACTIONS IN THE SECURITIES OF THE COMPANY.
SUCH BUYER HEREBY COVENANTS
AND AGREES NOT
5
TO, AND SHALL CAUSE ITS TRADING AFFILIATES NOT TO, ENGAGE, DIRECTLY OR
INDIRECTLY, IN ANY TRANSACTIONS IN THE SECURITIES OF THE COMPANY OR INVOLVING
THE COMPANY'S SECURITIES DURING THE PERIOD FROM THE DATE HEREOF UNTIL SUCH TIME
AS (I) THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT ARE FIRST PUBLICLY
ANNOUNCED AS DESCRIBED IN SECTION 4(I) HEREOF OR (II) THIS AGREEMENT IS
TERMINATED PURSUANT TO SECTION 8 HEREOF.
3.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to each of the Buyers that:
(A)
ORGANIZATION AND QUALIFICATION.
THE COMPANY AND ITS
"SUBSIDIARIES" (WHICH FOR PURPOSES OF THIS AGREEMENT MEANS ANY JOINT VENTURE OR
ANY ENTITY IN WHICH THE COMPANY, DIRECTLY OR INDIRECTLY, OWNS ANY OF THE CAPITAL
STOCK OR HOLDS AN EQUITY OR SIMILAR INTEREST) ARE ENTITIES DULY ORGANIZED AND
VALIDLY EXISTING AND, TO THE EXTENT LEGALLY APPLICABLE, IN GOOD STANDING UNDER
THE LAWS OF THE JURISDICTION IN WHICH THEY ARE FORMED, AND HAVE THE REQUISITE
POWER AND AUTHORIZATION TO OWN THEIR PROPERTIES AND TO CARRY ON THEIR BUSINESS
AS NOW BEING CONDUCTED.
EACH OF THE COMPANY AND ITS SUBSIDIARIES IS DULY
QUALIFIED AS A FOREIGN ENTITY TO DO BUSINESS AND, TO THE EXTENT LEGALLY
APPLICABLE, IS IN GOOD STANDING IN EVERY JURISDICTION IN WHICH ITS OWNERSHIP OF
PROPERTY OR THE NATURE OF THE BUSINESS CONDUCTED BY IT MAKES SUCH QUALIFICATION
NECESSARY, EXCEPT TO THE EXTENT THAT THE FAILURE TO BE SO QUALIFIED OR BE IN
GOOD STANDING WOULD NOT REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE
EFFECT.
AS USED