of persons other than the Company's or such Subsidiary's employees;
and (v) neither the Company nor any of its Subsidiaries has withdrawn,
completely or partially, from any multi-employer pension plan so as to incur
liability under the Multiemployer Pension Plan Amendments Act of 1980.
5.
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.
THE PURCHASER
HEREBY REPRESENTS AND WARRANTS TO THE COMPANY AS FOLLOWS (SUCH REPRESENTATIONS
AND WARRANTIES DO NOT LESSEN OR OBVIATE THE REPRESENTATIONS AND WARRANTIES OF
THE COMPANY SET FORTH IN THIS AGREEMENT):
5.1
NO SHORTING.
THE PURCHASER OR ANY OF ITS AFFILIATES AND
INVESTMENT PARTNERS HAS NOT, WILL NOT AND WILL NOT CAUSE ANY PERSON OR ENTITY,
TO DIRECTLY ENGAGE IN "SHORT SALES" OF THE COMPANY'S COMMON STOCK AS LONG AS THE
NOTE SHALL BE OUTSTANDING.
5.2
REQUISITE POWER AND AUTHORITY.
THE PURCHASER HAS ALL NECESSARY
POWER AND AUTHORITY UNDER ALL APPLICABLE PROVISIONS OF LAW TO EXECUTE AND
DELIVER THIS AGREEMENT AND THE RELATED AGREEMENTS AND TO CARRY OUT THEIR
PROVISIONS.
ALL CORPORATE ACTION ON THE PURCHASER'S PART REQUIRED FOR THE
LAWFUL EXECUTION AND DELIVERY OF THIS AGREEMENT AND THE RELATED AGREEMENTS HAVE
BEEN OR WILL BE EFFECTIVELY TAKEN PRIOR TO THE CLOSING.
UPON THEIR EXECUTION
AND DELIVERY, THIS AGREEMENT AND THE RELATED AGREEMENTS WILL BE VALID AND
BINDING OBLIGATIONS OF THE PURCHASER, ENFORCEABLE IN ACCORDANCE WITH THEIR
TERMS, EXCEPT:
(A)
AS LIMITED BY APPLICABLE BANKRUPTCY, INSOLVENCY, REORGANIZATION,
MORATORIUM OR OTHER LAWS OF GENERAL APPLICATION AFFECTING ENFORCEMENT OF
CREDITORS' RIGHTS; AND
(B)
AS LIMITED BY GENERAL PRINCIPLES OF EQUITY THAT RESTRICT THE
AVAILABILITY OF EQUITABLE AND LEGAL REMEDIES.
5.3
INVESTMENT REPRESENTATIONS.
THE PURCHASER UNDERSTANDS THAT THE
SECURITIES ARE BEING OFFERED AND SOLD PURSUANT TO AN EXEMPTION FROM REGISTRATION
CONTAINED IN THE SECURITIES ACT BASED IN PART UPON THE PURCHASER'S
REPRESENTATIONS CONTAINED IN THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THAT
THE PURCHASER IS AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF REGULATION D
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT").
THE
PURCHASER CONFIRMS THAT IT HAS RECEIVED OR HAS HAD FULL ACCESS TO ALL THE
INFORMATION IT CONSIDERS NECESSARY OR APPROPRIATE TO MAKE AN INFORMED INVESTMENT
DECISION WITH RESPECT TO THE NOTE AND THE WARRANT TO BE PURCHASED BY IT UNDER
THIS AGREEMENT AND THE NOTE SHARES AND THE WARRANT SHARES ACQUIRED BY IT UPON
THE CONVERSION OF THE NOTE AND THE EXERCISE OF THE WARRANT, RESPECTIVELY.
THE
PURCHASER FURTHER CONFIRMS THAT IT HAS HAD AN OPPORTUNITY TO ASK QUESTIONS AND
RECEIVE ANSWERS FROM THE COMPANY REGARDING THE COMPANY'S AND ITS SUBSIDIARIES'
BUSINESS, MANAGEMENT AND FINANCIAL AFFAIRS AND THE TERMS AND CONDITIONS OF THE
OFFERING, THE NOTE, THE
15
Warrant and the Securities and to obtain additional information (to the extent
the Company possessed such information or could acquire it without unreasonable
effort or expense) necessary to verify any information furnished to the
Purchaser or to which the Purchaser had access.
5.4
THE PURCHASER BEARS ECONOMIC RISK.
THE PURCHASER HAS SUBSTANTIAL
EXPERIENCE IN EVALUATING AND INVESTING IN PRIVATE PLACEMENT TRANSACTIONS OF
SECURITIES IN COMPANIES SIMILAR TO THE