BY THE
COMPANY TO THE PURCHASERS AS CONTEMPLATED HEREBY. THE ISSUANCE AND SALE OF THE
SECURITIES HEREUNDER DOES NOT CONTRAVENE THE RULES AND REGULATIONS OF THE
TRADING MARKET.
10
(S)
INVESTMENT COMPANY. THE COMPANY IS NOT AN "INVESTMENT COMPANY" WITHIN THE
MEANING OF THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED.
(T)
FORM S-3 ELIGIBILITY.
THE COMPANY IS ELIGIBLE TO REGISTER THE RESALE OF
ITS COMMON STOCK BY THE PURCHASERS UNDER FORM S-3 PROMULGATED UNDER THE
SECURITIES ACT.
(U)
APPLICATION OF TAKEOVER PROTECTIONS.
THE COMPANY AND ITS BOARD OF
DIRECTORS HAVE TAKEN ALL NECESSARY ACTION, IF ANY, IN ORDER TO RENDER
INAPPLICABLE ANY CONTROL SHARE ACQUISITION, BUSINESS COMBINATION, POISON PILL
(INCLUDING ANY DISTRIBUTION UNDER A RIGHTS AGREEMENT) OR OTHER SIMILAR
ANTI-TAKEOVER PROVISION UNDER THE COMPANY'S CERTIFICATE OF INCORPORATION (OR
SIMILAR CHARTER DOCUMENTS) OR THE LAWS OF ITS STATE OF INCORPORATION THAT IS OR
COULD BECOME APPLICABLE TO THE PURCHASERS AS A RESULT OF THE PURCHASERS AND THE
COMPANY FULFILLING THEIR OBLIGATIONS OR EXERCISING THEIR RIGHTS UNDER THE
TRANSACTION DOCUMENTS, INCLUDING WITHOUT LIMITATION THE COMPANY'S ISSUANCE OF
THE SECURITIES AND THE PURCHASERS' OWNERSHIP OF THE SECURITIES.
(V)
DISCLOSURE.
THE COMPANY CONFIRMS THAT THE COMPANY HAS NOT PROVIDED ANY OF
THE PURCHASERS OR COUNSEL WITH ANY INFORMATION THAT CONSTITUTES OR MIGHT
CONSTITUTE MATERIAL, NON-PUBLIC INFORMATION.
THE COMPANY UNDERSTANDS AND
CONFIRMS THAT THE PURCHASERS WILL RELY ON THE FOREGOING REPRESENTATIONS AND
COVENANTS IN EFFECTING ITS PURCHASE OF THE SECURITIES. ALL DISCLOSURE PROVIDED
TO THE PURCHASERS REGARDING THE COMPANY, ITS BUSINESS AND THE TRANSACTIONS
CONTEMPLATED HEREBY, INCLUDING THE DISCLOSURE SCHEDULES TO THIS AGREEMENT,
FURNISHED BY OR ON BEHALF OF THE COMPANY ARE TRUE AND CORRECT AND DO NOT CONTAIN
ANY UNTRUE STATEMENT OF A MATERIAL FACT OR OMIT TO STATE ANY MATERIAL FACT
NECESSARY IN ORDER TO MAKE THE STATEMENTS MADE THEREIN, IN LIGHT OF THE
CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING.
(W)
NO INTEGRATED OFFERING. NEITHER THE COMPANY, NOR ANY OF ITS AFFILIATES, NOR
ANY PERSON ACTING ON ITS OR THEIR BEHALF HAS, DIRECTLY OR INDIRECTLY, MADE ANY
OFFERS OR SALES OF ANY SECURITY OR SOLICITED ANY OFFERS TO BUY ANY SECURITY,
UNDER CIRCUMSTANCES THAT WOULD CAUSE THIS OFFERING OF THE SECURITIES TO FAIL TO
QUALIFY FOR AN EXEMPTION FROM REGISTRATION UNDER THE UNITED STATES FEDERAL
SECURITIES LAWS.
Each Purchaser acknowledges and agrees that the Company does not make or has not
made any representations or warranties with respect to the transactions
contemplated hereby other than those specifically set forth in this Section 3.1.
3.2
Representations and Warranties of the Purchasers.
Each Purchaser
hereby, for itself and for no other Purchaser, represents and warrants as of the
date hereof and as of the Closing Date to the Company as follows:
(A)
ORGANIZATION; AUTHORITY.
SUCH PURCHASER IS AN ENTITY DULY
ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE
JURISDICTION OF ITS ORGANIZATION WITH FULL RIGHT, CORPORATE OR PARTNERSHIP POWER
AND AUTHORITY TO ENTER INTO AND TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY
THE TRANSACTION DOCUMENTS AND OTHERWISE TO