OR ADMINISTRATIVE LITIGATION,
CLAIM, ACTION, SUIT, HEARING, ARBITRATION, INVESTIGATION OR OTHER PROCEEDING
BEFORE ANY GOVERNMENTAL AUTHORITY OR ARBITRATOR IS PENDING OR, TO THE ACTUAL
KNOWLEDGE OF ANY OF THE EXECUTIVE OFFICERS OF THE COMPANY, THREATENED AGAINST
THE COMPANY OR ANY COMPANY SUBSIDIARY, (II) NEITHER THE COMPANY OR ANY COMPANY
SUBSIDIARY IS SUBJECT TO ANY ORDER, JUDGMENT OR DECREE, AND (III) THERE ARE NO
FACTS OR CIRCUMSTANCES THAT COULD RESULT IN ANY CLAIMS AGAINST, OR OBLIGATIONS
OR LIABILITIES OF, THE COMPANY OR ANY COMPANY SUBSIDIARY, EXCEPT WITH RESPECT TO
(I), (II) AND (III) FOR THOSE THAT ARE NOT, INDIVIDUALLY OR IN THE AGGREGATE,
REASONABLY LIKELY TO HAVE A MATERIAL ADVERSE EFFECT.
SECTION 4
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to the Company as follows:
4.1
INSTITUTIONAL ACCREDITED INVESTOR; EXPERIENCE.
PURCHASER IS AN
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501 UNDER THE ACT) AND IS CAPABLE OF
EVALUATING THE MERITS AND RISKS OF ITS INVESTMENT IN THE COMPANY AND HAS THE
CAPACITY TO PROTECT ITS OWN INTERESTS.
4.2
INVESTMENT.
PURCHASER IS ACQUIRING THE SHARES FOR INVESTMENT FOR
ITS OWN ACCOUNT FOR INVESTMENT PURPOSES, AND NOT WITH THE VIEW TO, OR FOR RESALE
IN CONNECTION WITH, ANY DISTRIBUTION THEREOF THAT WOULD REQUIRE THE ISSUANCE OF
THE SHARES PURSUANT TO THIS AGREEMENT TO BE REGISTERED UNDER THE ACT.
AS USED
IN THIS AGREEMENT, "AFFILIATE" MEANS, WITH RESPECT TO ANY PERSON, ANY OTHER
PERSON THAT DIRECTLY OR INDIRECTLY THROUGH ONE OR MORE INTERMEDIARIES, CONTROLS,
OR IS CONTROLLED BY, OR IS UNDER COMMON CONTROL WITH, SUCH PERSON, AND THE TERM
"CONTROL" (INCLUDING THE TERMS "CONTROLLED BY" AND "UNDER COMMON CONTROL WITH")
MEANS THE POSSESSION, DIRECTLY OR INDIRECTLY, OF THE POWER TO DIRECT OR CAUSE
THE DIRECTION OF THE MANAGEMENT AND POLICIES OF SUCH PERSON, WHETHER THROUGH
OWNERSHIP OF VOTING SECURITIES, BY CONTRACT OR OTHERWISE.
7
4.3
NO RELIANCE.
PURCHASER HAS RELIED UPON THE REPRESENTATIONS AND
WARRANTIES SET FORTH HEREIN AND ITS OWN INVESTIGATIONS AND DILIGENCE, INCLUDING
A REVIEW OF THE COMPANY REPORTS FILED WITH THE SEC AND INCLUDING WITH RESPECT TO
THE TAX CONSEQUENCES OF THIS INVESTMENT AND THE TRANSACTION, AND NOT UPON ANY
OTHER INFORMATION PROVIDED BY OR ON BEHALF OF THE COMPANY IN MAKING THE DECISION
TO PURCHASE THE SHARES.
PURCHASER UNDERSTANDS AND ACKNOWLEDGES THAT NEITHER THE
COMPANY NOR ANY OF THE COMPANY'S REPRESENTATIVES, AGENTS OR ATTORNEYS IS MAKING
OR HAS MADE AT ANY TIME ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND OR
CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER OR THE COMPANY COMMON
STOCK, EXCEPT AS EXPRESSLY SET FORTH HEREIN.
4.4
ORGANIZATION AND STANDING.
PURCHASER IS DULY ORGANIZED, VALIDLY
EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE STATE OF DELAWARE.
PURCHASER IS DULY QUALIFIED TO DO BUSINESS AND IS IN GOOD STANDING AS A FOREIGN
ENTITY IN EACH JURISDICTION WHERE THE OWNERSHIP OR OPERATION OF ITS ASSETS OR
PROPERTIES OR CONDUCT OF ITS BUSINESS REQUIRES SUCH QUALIFICATION, EXCEPT WHERE
THE FAILURE TO BE SO QUALIFIED OR IN GOOD STANDING IS NOT REASONABLY LIKELY TO