NOT HAVE BECOME,
AN "INVESTMENT COMPANY" WITHIN THE MEANING OF THE INVESTMENT COMPANY ACT OF
1940, AS AMENDED.
10
(X)
APPLICATION OF TAKEOVER PROTECTIONS. THE
COMPANY HAS 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 INVESTORS AS A RESULT OF THE INVESTORS AND THE COMPANY FULFILLING THEIR
OBLIGATIONS OR EXERCISING THEIR RIGHTS UNDER THE TRANSACTION DOCUMENTS,
INCLUDING WITHOUT LIMITATION THE COMPANY'S ISSUANCE OF THE SHARES AND THE
INVESTORS' OWNERSHIP OF THE SHARES.
(Y)
NO ADDITIONAL AGREEMENTS. THE COMPANY DOES
NOT HAVE ANY AGREEMENT OR UNDERSTANDING WITH ANY INVESTOR WITH RESPECT TO THE
TRANSACTIONS CONTEMPLATED BY THE TRANSACTION DOCUMENTS OTHER THAN AS SPECIFIED
IN THE TRANSACTION DOCUMENTS.
(Z)
DISCLOSURE. THE COMPANY CONFIRMS THAT
NEITHER IT NOR ANY PERSON ACTING ON ITS BEHALF HAS PROVIDED ANY INVESTOR OR ITS
RESPECTIVE AGENTS OR COUNSEL WITH ANY INFORMATION THAT THE COMPANY BELIEVES
CONSTITUTES MATERIAL, NON-PUBLIC INFORMATION, EXCEPT INSOFAR AS THE EXISTENCE
AND TERMS OF THE PROPOSED TRANSACTIONS CONTEMPLATED HEREUNDER MAY CONSTITUTE
SUCH INFORMATION. THE COMPANY UNDERSTANDS AND CONFIRMS THAT THE INVESTORS WILL
RELY ON THE FOREGOING SENTENCE IN EFFECTING TRANSACTIONS IN SECURITIES OF THE
COMPANY. ALL DISCLOSURE PROVIDED TO THE INVESTORS REGARDING THE COMPANY, ITS
BUSINESS AND THE TRANSACTIONS CONTEMPLATED HEREBY, FURNISHED BY OR ON BEHALF OF
THE COMPANY (INCLUDING THE COMPANY'S REPRESENTATIONS AND WARRANTIES SET FORTH IN
THIS AGREEMENT) 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.
3.2.
Representations and Warranties of the
Investors. Each Investor hereby, for itself and for no other Investor,
represents and warrants to the Company as follows:
(A)
ORGANIZATION; AUTHORITY. SUCH INVESTOR IS
AN ENTITY DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS
OF THE JURISDICTION OF ITS ORGANIZATION WITH THE REQUISITE CORPORATE,
PARTNERSHIP OR LIMITED LIABILITY COMPANY POWER AND AUTHORITY TO ENTER INTO AND
TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THE APPLICABLE TRANSACTION
DOCUMENTS AND OTHERWISE TO CARRY OUT ITS OBLIGATIONS THEREUNDER. THE EXECUTION,
DELIVERY AND PERFORMANCE BY SUCH INVESTOR OF THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT HAS BEEN DULY AUTHORIZED BY ALL NECESSARY CORPORATE OR, IF SUCH
INVESTOR IS NOT A CORPORATION, SUCH PARTNERSHIP, LIMITED LIABILITY COMPANY OR
OTHER APPLICABLE LIKE ACTION, ON THE PART OF SUCH INVESTOR. EACH OF THIS
AGREEMENT AND THE REGISTRATION RIGHTS AGREEMENT HAS BEEN DULY EXECUTED BY SUCH
INVESTOR, AND WHEN DELIVERED BY SUCH INVESTOR IN ACCORDANCE WITH THE TERMS
HEREOF, WILL CONSTITUTE THE VALID AND LEGALLY BINDING OBLIGATION OF SUCH
INVESTOR, ENFORCEABLE AGAINST IT IN ACCORDANCE WITH ITS TERMS, EXCEPT AS SUCH
ENFORCEABILITY MAY BE LIMITED BY APPLICABLE BANKRUPTCY, INSOLVENCY,
REORGANIZATION, MORATORIUM,