THE
COMPANY OR ANY OF ITS SUBSIDIARIES, INCLUDING ANY STRUCTURED FINANCE, SPECIAL
PURPOSE OR LIMITED PURPOSE ENTITY OR PERSON, ON THE OTHER HAND, OR ANY
"OFF-BALANCE SHEET ARRANGEMENTS" (AS DEFINED IN ITEM 303(A) OF REGULATION S-K OF
THE SEC)), WHERE THE RESULT, PURPOSE OR EFFECT OF SUCH CONTRACT IS TO AVOID
DISCLOSURE OF ANY MATERIAL TRANSACTION INVOLVING, OR MATERIAL LIABILITIES OF,
THE COMPANY OR ANY OF ITS SUBSIDIARIES IN THE COMPANY'S OR SUCH SUBSIDIARY'S
AUDITED FINANCIAL STATEMENTS OR OTHER SEC REPORTS.
3.6
Private Placement.
The offer, sale, and issuance of the shares of
New Common Stock in conformity with the terms of this Agreement and the Plan
qualify for exemption from the registration requirements of Section 5 of the
Securities Act and applicable state securities laws.
3.7
Registration Rights.
Except as set forth in the Registration
Rights Agreement or as provided for in the Existing Plan (as amended by the Plan
Modification), the Company has not granted or agreed to grant, and is not under
any obligation to provide, any rights (including "piggy-back" registration
rights) to register under the Securities Act any of its securities to be issued
under the Plan or that may be issued subsequently, including the New Common
Stock.
13
SECTION 4.
REPRESENTATIONS AND WARRANTIES OF EACH STANDBY PURCHASER
For purposes of this Section 4, Paulson hereby makes the following
representations and warranties to the Company on behalf of the Standby
Purchasers:
4.1
Corporate Status.
Such Standby Purchaser is duly organized,
validly existing and in good standing under the Laws of the jurisdiction of its
formation and has all requisite power and authority to carry on its business as
it is now being conducted.
4.2
AUTHORIZATION; NONCONTRAVENTION.
(A)
AUTHORIZATION.
SUCH STANDBY PURCHASER HAS ALL NECESSARY POWER AND
AUTHORITY TO EXECUTE AND DELIVER THIS AGREEMENT AND THE ANCILLARY AGREEMENTS, TO
PERFORM ITS OBLIGATIONS HEREUNDER AND THEREUNDER AND TO CONSUMMATE THE
TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY.
THE EXECUTION, DELIVERY AND
PERFORMANCE OF THIS AGREEMENT AND THE ANCILLARY AGREEMENTS AND THE CONSUMMATION
BY SUCH STANDBY PURCHASER OF THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY
HAVE BEEN DULY AND VALIDLY AUTHORIZED BY ALL NECESSARY CORPORATE OR OTHER
ACTION.
THIS AGREEMENT HAS BEEN DULY EXECUTED AND DELIVERED BY SUCH STANDBY
PURCHASER AND (ASSUMING DUE AUTHORIZATION, EXECUTION AND DELIVERY BY THE
COMPANY) CONSTITUTES, AND THE ANCILLARY AGREEMENTS, WHEN EXECUTED AND DELIVERED
BY THE COMPANY AND EACH OF THE STANDBY PURCHASERS (ASSUMING DUE AUTHORIZATION,
EXECUTION AND DELIVERY BY THE COMPANY AND, IN THE CASE OF THE REGISTRATION
RIGHTS AGREEMENT, ANY PARTY OTHER THAN THE COMPANY AND THE STANDBY PURCHASERS),
WILL CONSTITUTE, A VALID AND BINDING OBLIGATION OF SUCH STANDBY PURCHASER,
ENFORCEABLE AGAINST SUCH STANDBY PURCHASER IN ACCORDANCE WITH THEIR TERMS,
EXCEPT AS ENFORCEABILITY MAY BE LIMITED BY BANKRUPTCY, INSOLVENCY,
REORGANIZATION, MORATORIUM AND OTHER SIMILAR LAWS RELATING TO OR AFFECTING
CREDITORS' RIGHTS GENERALLY OR BY GENERAL EQUITABLE PRINCIPLES (REGARDLESS OF
WHETHER SUCH ENFORCEABILITY IS CONSIDERED IN A PROCEEDING IN EQUITY OR AT LAW).
(B)
NO CONFLICT.
THE EXECUTION, DELIVERY AND PERFORMANCE BY SUCH
STANDBY PURCHASER