AT LAW.
(B)
NONCONTRAVENTION.
THE EXECUTION AND
DELIVERY OF THIS AGREEMENT, THE CONSUMMATION OF THE TRANSACTION AND THE
FULFILLMENT OF AND COMPLIANCE WITH THE TERMS AND CONDITIONS HEREOF DO NOT AND
WILL NOT WITH THE PASSING OF TIME OR GIVING OF NOTICE (I) RESULT IN A VIOLATION
OF THE ORGANIZATIONAL DOCUMENTS OF THERMO, (II) VIOLATE ANY LAW, RULE,
REGULATION, PROVISION OF ANY JUDICIAL OR ADMINISTRATIVE ORDER, AWARD, JUDGMENT
OR DECREE APPLICABLE TO THERMO, OR (II) CONFLICT WITH, RESULT IN A BREACH OF OR
RIGHT TO CANCEL OR CONSTITUTE A DEFAULT UNDER ANY AGREEMENT OR INSTRUMENT TO
WHICH THERMO IS A PARTY, BY WHICH THERMO IS BOUND OR TO WHICH THERMO IS SUBJECT.
(C)
SECURITIES ACT.
THERMO IS ACQUIRING
THE SHARE FOR ITS OWN ACCOUNT FOR INVESTMENT ONLY AND NOT WITH A PRESENT VIEW
TOWARDS THE PUBLIC SALE OR DISTRIBUTION THEREOF, EXCEPT PURSUANT TO SALES
REGISTERED OR EXEMPTED UNDER THE SECURITIES ACT.
(D)
THERMO'S QUALIFICATIONS.
THERMO IS AN
"ACCREDITED INVESTOR" AS SUCH TERM IS DEFINED IN REGULATION D UNDER THE
SECURITIES ACT.
(E)
TRANSFER OR RESALE.
THERMO UNDERSTANDS
THAT THE SHARE HAS NOT BEEN AND IS NOT BEING REGISTERED UNDER THE SECURITIES ACT
OR ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED FOR SALE, SOLD, ASSIGNED OR
TRANSFERRED WITHOUT REGISTRATION UNDER THE SECURITIES ACT OR AN EXEMPTION
THEREFROM, AND THAT THE GROUNDS FOR EXEMPTION OF THE TRANSACTION IS
SECTION 4(2) OF THE SECURITIES ACT.
THERMO UNDERSTANDS THAT A LEGEND
RESTRICTING TRANSFER EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT WILL BE
REFLECTED ON THE CERTIFICATE OR RECORDS REPRESENTING THE SHARE.
(F)
BROKER.
NO OFFICER, DIRECTOR, EMPLOYEE
OR THIRD PARTY SHALL BE ENTITLED TO RECEIVE ANY BROKERAGE COMMISSIONS OR SIMILAR
COMPENSATION IN CONNECTION WITH THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT
BASED ON ANY ARRANGEMENT OR AGREEMENT MADE BY OR ON BEHALF OF THERMO.
(G)
ACKNOWLEDGEMENT.
THERMO ACKNOWLEDGES THAT
THE COMPANY HAS NOT MADE ANY REPRESENTATIONS OR WARRANTIES TO IT EXCEPT TO THE
EXTENT OF THE REPRESENTATIONS AND WARRANTIES OF THE COMPANY IN THIS AGREEMENT.
7.
CONDITION SUBSEQUENT.
IF THE INITIAL
FUNDING TO THE COMPANY UNDER THE COFACE FACILITY AGREEMENT DATED AS OF JUNE 5,
2009 DOES NOT OCCUR BY [JUNE 30], 2009, THE PARTIES AGREE THAT THE TRANSACTION
SHALL BE DEEMED VOID AND STATUS QUO ENTE
3
TO IMMEDIATELY PRIOR TO THE TRANSACTION.
THE COMPANY SHALL TAKE ALL ACTIONS TO
AFFECT THIS SECTION 7 AND PAY ALL COSTS AND FEES RELATED TO THIS CONDITION.
8.
REPORTING.
EACH PARTY IS RESPONSIBLE
FOR MAKING AND SHALL MAKE ITS OWN REQUIRED REPORTS WITH THE SECURITIES AND
EXCHANGE COMMISSION AND NASDAQ REGARDING THE TRANSACTION.
9.
SURVIVAL.
THE REPRESENTATIONS AND
WARRANTIES OF THERMO AND THE COMPANY CONTAINED IN SECTIONS 5 AND 6 AND THE
COVENANT IN SECTION 7 SHALL SURVIVE THIS AGREEMENT.
10.
SUCCESSORS AND ASSIGNS.
NO PARTY MAY ASSIGN
THIS AGREEMENT OR ANY RIGHTS OR OBLIGATIONS HEREUNDER WITHOUT THE PRIOR WRITTEN
CONSENT OF THE OTHER PARTY.
SUBJECT TO THE PRECEDING, THIS AGREEMENT SHALL BE
BINDING UPON, INURE TO THE BENEFIT OF AND BE ENFORCEABLE BY