REPRESENTATIONS AND WARRANTIES AND THE CERTIFICATES TO BE DELIVERED PURSUANT TO
SECTIONS 5.1 AND 5.2 SHALL BE DEEMED MATERIAL AND TO HAVE BEEN RELIED UPON BY
THE INVESTOR.
4.
REPRESENTATIONS AND WARRANTIES OF THE
INVESTOR.
The Investor hereby represents and warrants to the Company that the statements
contained in Section 4 are true and correct as of the date hereof and as of the
Closing Date:
4.1
AUTHORIZATION, GOVERNMENTAL CONSENTS AND COMPLIANCE WITH OTHER
INSTRUMENTS.
ALL CORPORATE ACTION ON THE PART OF THE INVESTOR NECESSARY FOR THE
AUTHORIZATION, EXECUTION AND DELIVERY OF THIS AGREEMENT AND THE INVESTORS RIGHTS
AGREEMENT AND THE PERFORMANCE OF ALL OBLIGATIONS OF THE INVESTOR HEREUNDER AND
THEREUNDER HAS BEEN TAKEN OR WILL BE TAKEN PRIOR TO THE CLOSING.
THIS AGREEMENT
AND THE INVESTORS RIGHTS AGREEMENT HAVE BEEN DULY EXECUTED AND DELIVERED BY THE
INVESTOR AND CONSTITUTE VALID AND LEGALLY BINDING OBLIGATIONS OF THE INVESTOR,
ENFORCEABLE AGAINST THE INVESTOR IN ACCORDANCE WITH THEIR RESPECTIVE TERMS,
EXCEPT AS SUCH ENFORCEABILITY MAY BE LIMITED BY APPLICABLE BANKRUPTCY,
INSOLVENCY, FRAUDULENT TRANSFER, REORGANIZATION, MORATORIUM OR OTHER LAWS OF
GENERAL APPLICATION RELATING TO OR AFFECTING ENFORCEMENT OF CREDITORS RIGHTS AND
SUBJECT TO GENERAL EQUITY PRINCIPLES.
NO CONSENT, APPROVAL, ORDER OR
AUTHORIZATION OF, OR REGISTRATION, QUALIFICATION, DESIGNATION, DECLARATION,
NOTIFICATION OR FILING WITH, ANY FEDERAL, STATE OR LOCAL GOVERNMENTAL AUTHORITY
ON THE PART OF THE INVESTOR IS REQUIRED IN CONNECTION WITH THE CONSUMMATION OF
THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND THE INVESTORS RIGHTS
AGREEMENT, EXCEPT AS MAY BE REQUIRED BY THE HSR ACT.
THE EXECUTION, DELIVERY
AND PERFORMANCE OF THIS AGREEMENT AND THE INVESTORS RIGHTS AGREEMENT AND
COMPLIANCE WITH THE PROVISIONS HEREOF AND THEREOF BY THE INVESTOR, WILL NOT (A)
VIOLATE ANY PROVISION OF LAW, STATUTE, ORDINANCE, RULE OR REGULATION OR ANY
RULING, WRIT, INJUNCTION, ORDER, JUDGMENT OR DECREE OF ANY COURT, ADMINISTRATIVE
AGENCY OR OTHER GOVERNMENTAL BODY OR (B) CONFLICT WITH OR RESULT IN ANY BREACH
OF ANY OF THE TERMS, CONDITIONS OR PROVISIONS OF, OR CONSTITUTE (WITH DUE NOTICE
OR LAPSE OF TIME, OR BOTH) A DEFAULT (OR GIVE RISE TO ANY RIGHT OF TERMINATION,
CANCELLATION OR ACCELERATION) UNDER ANY AGREEMENT, DOCUMENT, INSTRUMENT,
CONTRACT, UNDERSTANDING, ARRANGEMENT, NOTE, INDENTURE, MORTGAGE OR LEASE TO
WHICH THE INVESTOR IS A PARTY OR UNDER WHICH THE INVESTOR OR ANY OF ITS ASSETS
IS BOUND OR AFFECTED, EXCEPT FOR ANY VIOLATIONS, CONFLICTS, BREACHES OR DEFAULTS
WHICH WOULD NOT REASONABLY BE EXPECTED TO HAVE, INDIVIDUALLY OR
12
IN THE AGGREGATE, A MATERIAL ADVERSE EFFECT ON THE ABILITY OF THE INVESTOR TO
CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
4.2
PURCHASE ENTIRELY FOR OWN ACCOUNT.
THE INVESTOR IS ACQUIRING THE
SHARES FOR INVESTMENT FOR THE INVESTOR'S OWN ACCOUNT, NOT AS A NOMINEE OR AGENT,
AND NOT WITH A VIEW TO THE RESALE OR DISTRIBUTION OF ANY PART THEREOF, AND THE
INVESTOR HAS NO PRESENT INTENTION OF SELLING, GRANTING ANY PARTICIPATION, OR
OTHERWISE DISTRIBUTING THE SHARES.
THE INVESTOR DOES NOT OWN OF RECORD OR
BENEFICIALLY OWN (AS DEFINED IN RULE 13D-3 OF THE EXCHANGE ACT) ANY VOTING
SECURITIES