BEEN DULY INCORPORATED AND IS
VALIDLY EXISTING AS A CORPORATION IN GOOD STANDING UNDER THE LAWS OF DELAWARE.
(B)
CORPORATE POWER AND AUTHORITY.
THE INVESTOR HAS THE REQUISITE
CORPORATE POWER AND AUTHORITY TO ENTER INTO, EXECUTE AND DELIVER THIS AGREEMENT
AND TO PERFORM ITS OBLIGATIONS HEREUNDER AND HAS TAKEN ALL NECESSARY CORPORATE
ACTION REQUIRED FOR THE DUE AUTHORIZATION, EXECUTION, DELIVERY AND PERFORMANCE
BY IT OF THIS AGREEMENT.
(C)
EXECUTION AND DELIVERY.
THIS AGREEMENT HAS BEEN DULY AND VALIDLY
EXECUTED AND DELIVERED BY THE INVESTOR AND CONSTITUTES ITS VALID AND BINDING
OBLIGATION, ENFORCEABLE AGAINST IT IN ACCORDANCE WITH ITS TERMS, AND THE
EXECUTION AND DELIVERY BY THE INVESTOR OF THIS AGREEMENT (I) WILL NOT CONFLICT
WITH, OR RESULT IN A BREACH OR VIOLATION OF, ANY OF THE TERMS OR PROVISIONS OF,
OR CONSTITUTE A DEFAULT UNDER, ANY AGREEMENT
16
OR INSTRUMENT TO WHICH THE INVESTOR IS A PARTY OR BY WHICH THE INVESTOR IS BOUND
OR TO WHICH ANY OF THE PROPERTY OR ASSETS OF THE INVESTOR IS SUBJECT AND
(II) WILL NOT RESULT IN ANY VIOLATION OF ANY APPLICABLE LAW, EXCEPT IN ANY SUCH
CASE DESCRIBED IN SUBCLAUSE (I) OR (II) AS WILL NOT HAVE OR COULD NOT BE
REASONABLY EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT ON THE ABILITY OF THE
INVESTOR TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
(D)
SECURITIES LAWS COMPLIANCE.
THE ECA SHARES WILL NOT BE OFFERED
FOR SALE, SOLD OR OTHERWISE TRANSFERRED BY THE INVESTOR EXCEPT PURSUANT TO A
REGISTRATION STATEMENT OR IN A TRANSACTION EXEMPT FROM OR NOT SUBJECT TO
REGISTRATION UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
(E)
CONSENTS AND APPROVALS.
NO CONSENT, APPROVAL, AUTHORIZATION,
ORDER, REGISTRATION OR QUALIFICATION OF OR WITH ANY COURT OR GOVERNMENTAL AGENCY
OR BODY HAVING JURISDICTION OVER THE INVESTOR IS REQUIRED IN CONNECTION WITH THE
EXECUTION AND DELIVERY OF THIS AGREEMENT OR THE CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED HEREBY, OTHER THAN (I)
THE REGISTRATION UNDER THE SECURITIES ACT
OF RESALES OF THE ECA SHARES, (II) FILINGS WITH RESPECT TO AND THE EXPIRATION OR
TERMINATION UNDER THE HSR ACT RELATING TO THE SALE OF ECA SHARES TO THE INVESTOR
HEREUNDER AND (III) AS MAY BE REQUIRED UNDER STATE SECURITIES OR BLUE SKY LAWS
IN CONNECTION WITH THE PURCHASE OF ECA SHARES BY THE INVESTOR.
(F)
INFORMATION.
THE INVESTOR ACKNOWLEDGES THAT IT HAS BEEN AFFORDED
THE OPPORTUNITY TO ASK QUESTIONS AND RECEIVE ANSWERS CONCERNING THE COMPANY AND
TO OBTAIN ADDITIONAL INFORMATION THAT IT HAS REQUESTED TO VERIFY THE ACCURACY OF
THE INFORMATION CONTAINED HEREIN.
NOTWITHSTANDING THE FOREGOING, NOTHING
CONTAINED HEREIN WILL OPERATE TO MODIFY OR LIMIT IN ANY RESPECT THE
REPRESENTATIONS AND WARRANTIES OF THE COMPANY OR TO RELIEVE IT FROM ANY
OBLIGATIONS TO THE INVESTOR FOR BREACH THEREOF OR THE MAKING OF MISLEADING
STATEMENTS OR THE OMISSION OF MATERIAL FACTS IN CONNECTION WITH THE TRANSACTIONS
CONTEMPLATED HEREIN.
(G)
PURCHASE INTENT.
THE INVESTOR IS NOT ACQUIRING THE ECA SHARES
WITH A VIEW TO DISTRIBUTING OR RESELLING SUCH ECA SHARES OR ANY PART THEREOF
EXCEPT PURSUANT