Fund, Acct: 38C5591.
(ii)
The Company shall pay the Investor by wire transfer of
immediately available funds an amount equal to the cash value of any fractional
Exchanged Share, determined in accordance with the provisions of Section 1(c).
SECTION 2.
REPRESENTATIONS AND WARRANTIES
(A)
MUTUAL REPRESENTATIONS AND WARRANTIES.
EACH PARTY HERETO HEREBY
MAKES THE FOLLOWING REPRESENTATIONS AND WARRANTIES TO THE OTHER PARTY HERETO AS
FOLLOWS:
(I)
IT IS A CORPORATION OR OTHER ENTITY DULY ORGANIZED, VALIDLY
EXISTING AND IN GOOD STANDING UNDER THE LAWS OF ITS JURISDICTION OF
ORGANIZATION.
(II)
(X) IT HAS FULL POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT
AND TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED HEREBY, AND (Y) THE PERSON WHO
HAS EXECUTED THIS AGREEMENT IS DULY AUTHORIZED TO DO SO AND THEREBY BIND THE
PARTY ON WHOSE BEHALF HE OR SHE IS PURPORTING TO SIGN.
(III)
THIS AGREEMENT IS ITS VALID AND BINDING AGREEMENT, ENFORCEABLE
AGAINST IT IN ACCORDANCE WITH ITS TERMS, SUBJECT TO BANKRUPTCY AND SIMILAR LAWS
AND TO EQUITABLE PRINCIPLES.
(IV)
NEITHER THE EXECUTION AND DELIVERY OF THIS AGREEMENT, NOR THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY, WILL VIOLATE, RESULT IN A
BREACH OF ANY OF THE TERMS OR PROVISIONS OF, CONSTITUTE A DEFAULT UNDER,
ACCELERATE ANY OBLIGATIONS UNDER, OR CONFLICT WITH (X) ITS CERTIFICATE OF
INCORPORATION OR BYLAWS (OR OTHER ORGANIZATIONAL DOCUMENTS) OR ANY AGREEMENT,
INDENTURE OR OTHER INSTRUMENT TO WHICH IT IS A PARTY OR BY WHICH IT OR ITS
PROPERTIES ARE BOUND, (Y) ANY JUDGMENT, DECREE, ORDER OR AWARD OF ANY COURT,
GOVERNMENTAL BODY OR ARBITRATOR TO WHICH IT IS SUBJECT, OR (Z) ANY LAW, RULE OR
REGULATION APPLICABLE TO IT.
(V)
IT HAS NOT, DIRECTLY OR INDIRECTLY, PAID ANY COMMISSION OR OTHER
REMUNERATION TO ANY PERSON FOR SOLICITING THE EXCHANGE OF THE EXCHANGE NOTES FOR
EXCHANGED SHARES AS CONTEMPLATED BY THIS AGREEMENT.
(B)
REPRESENTATIONS AND WARRANTIES OF THE INVESTOR.
THE INVESTOR
HEREBY REPRESENTS AND WARRANTS TO THE COMPANY THAT IT
(I) IS THE SOLE LEGAL AND BENEFICIAL OWNER OF THE EXCHANGE NOTES, AND, UPON THE
CLOSING, THE COMPANY WILL ACQUIRE THE EXCHANGE NOTES FREE AND CLEAR OF ANY
LIENS, ENCUMBRANCES, PLEDGES, SECURITY INTERESTS OR OTHER RESTRICTIONS OR CLAIMS
OF THIRD PARTIES, OTHER THAN ANY OF THE FOREGOING CREATED BY THE COMPANY;
(II) IS NOT AN AFFILIATE OF THE COMPANY;
(III) HOLDS THE FOLLOWING EXCHANGE NOTES THAT WERE ACQUIRED BEFORE SEPTEMBER 1,
2005 IN THE PUBLIC MARKET AND ARE FREE OF RESTRICTIVE LEGEND: $11,518,000
PRINCIPAL AMOUNT OF
NOTES (CUSIP: 92532F AD 2);
2
(iv) has had such opportunity as it has deemed adequate to obtain from
representatives of
the Company such information as is necessary to permit it to
evaluate the merits and risks of an investment in the Exchanged Shares;
(v) has sufficient experience in business, financial and investment matters to
be able to evaluate the risks involved in the acquisition of the Exchanged
Shares issued in respect of the Exchange Notes and to make an informed
investment decision with respect to such acquisition; and
(vi) on September 8,