SUCH LISTING OR
MAINTENANCE REQUIREMENTS.
(X)
APPLICATION OF TAKEOVER PROTECTIONS.
THE COMPANY AND THE 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 COMPANY'S
ISSUANCE OF THE SECURITIES 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, 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 IT BELIEVES 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, IS TRUE AND
CORRECT IN ALL MATERIAL RESPECTS AND DOES 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 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 3.2 HEREOF.
(Z)
NO INTEGRATED OFFERING. ASSUMING THE ACCURACY OF THE PURCHASERS'
REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 3.2 AND THE ACCURACY OF THE
STATEMENTS MADE TO THE PLACEMENT AGENTS TO THE TRANSACTION CONTEMPLATED
HEREUNDER, 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 (I) THE SECURITIES ACT
15
WHICH WOULD REQUIRE THE REGISTRATION OF ANY SUCH SECURITIES UNDER THE SECURITIES
ACT, OR (II) ANY APPLICABLE SHAREHOLDER APPROVAL PROVISIONS OF ANY TRADING
MARKET ON WHICH ANY OF THE SECURITIES OF THE COMPANY ARE LISTED OR DESIGNATED.
(AA)
SOLVENCY.
BASED ON THE CONSOLIDATED FINANCIAL CONDITION OF THE
COMPANY AS OF THE CLOSING DATE, AFTER GIVING EFFECT TO THE RECEIPT BY THE
COMPANY OF THE PROCEEDS FROM THE SALE OF THE SECURITIES HEREUNDER, THE FAIR
SALEABLE VALUE OF THE COMPANY'S ASSETS EXCEEDS THE AMOUNT THAT WILL BE REQUIRED
TO BE PAID ON OR IN RESPECT OF THE