Closing; (c) the absence of any order, writ, injunction, judgment or decree that
questions the validity of the Agreement or the right of the Company to enter
into such Agreement or to consummate the transactions contemplated hereby and
thereby; and (d) the delivery to the Investor by the Secretary or Assistant
Secretary of the Company of a certificate stating that the condition specified
in part (b) of this paragraph has been fulfilled.
D-1
3.
REPRESENTATIONS, WARRANTIES AND
COVENANTS OF THE COMPANY.
EXCEPT AS OTHERWISE DESCRIBED IN THE COMPANY'S ANNUAL
REPORT ON FORM 10 - K FOR THE YEAR ENDED DECEMBER 31, 2003 (AND ANY AMENDMENTS
THERETO FILED PRIOR TO THE DATE HEREOF); THE COMPANY'S PROXY STATEMENT FOR ITS
2003 ANNUAL MEETING OF SHAREHOLDERS; THE COMPANY'S QUARTERLY REPORTS ON FORM
10 - Q FOR THE QUARTERS ENDED MARCH 31, 2003, JUNE 30, 2003, AND SEPTEMBER 30,
2003; AND THE COMPANY'S CURRENT REPORTS ON FORM 8 - K FILED SINCE JANUARY 1, 2003
(COLLECTIVELY, THE "SEC REPORTS" OR THE "REPORTS"), OR ANY PRESS RELEASES ISSUED
BY THE COMPANY SINCE JANUARY 1, 2003, THE COMPANY HEREBY REPRESENTS AND WARRANTS
TO, AND COVENANTS WITH, THE INVESTOR AS OF THE DATE HEREOF AND THE CLOSING DATE,
AS FOLLOWS:
3.1
ORGANIZATION.
EACH OF THE COMPANY AND ITS
SUBSIDIARIES (AS DEFINED IN RULE 405 UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT")) IS DULY INCORPORATED AND VALIDLY EXISTING IN
GOOD STANDING UNDER THE LAWS OF THE JURISDICTION OF ITS ORGANIZATION.
EACH OF
THE COMPANY AND ITS SUBSIDIARIES HAS FULL POWER AND AUTHORITY TO OWN, OPERATE
AND OCCUPY ITS PROPERTIES AND TO CONDUCT ITS BUSINESS AS PRESENTLY CONDUCTED AND
IS REGISTERED OR QUALIFIED TO DO BUSINESS AND IN GOOD STANDING IN EACH
JURISDICTION IN WHICH IT OWNS OR LEASES PROPERTY OR TRANSACTS BUSINESS AND WHERE
THE FAILURE TO BE SO QUALIFIED WOULD HAVE A MATERIAL ADVERSE EFFECT UPON THE
COMPANY AND ITS SUBSIDIARIES TAKEN AS A WHOLE, OR THE BUSINESS, FINANCIAL
CONDITION, PROPERTIES, OPERATIONS OR ASSETS OF THE COMPANY AND ITS SUBSIDIARIES
TAKEN AS A WHOLE, OR THE COMPANY'S ABILITY TO PERFORM ITS OBLIGATIONS UNDER THE
AGREEMENTS ("MATERIAL ADVERSE EFFECT"), AND NO PROCEEDING HAS BEEN INSTITUTED IN
ANY SUCH JURISDICTION REVOKING, LIMITING OR CURTAILING, OR SEEKING TO REVOKE,
LIMIT OR CURTAIL, SUCH POWER AND AUTHORITY OR QUALIFICATION, WHICH PROCEEDING IS
REASONABLY LIKELY TO RESULT IN A MATERIAL ADVERSE EFFECT.
3.2
DUE AUTHORIZATION.
THE COMPANY HAS ALL
REQUISITE POWER AND AUTHORITY TO EXECUTE, DELIVER AND PERFORM ITS OBLIGATIONS
UNDER THE AGREEMENT, AND THE AGREEMENT HAS BEEN DULY AUTHORIZED AND VALIDLY
EXECUTED AND DELIVERED BY THE COMPANY AND CONSTITUTE LEGAL, VALID AND BINDING
AGREEMENTS OF THE COMPANY ENFORCEABLE AGAINST THE COMPANY IN ACCORDANCE WITH
THEIR TERMS, EXCEPT AS RIGHTS TO INDEMNITY AND CONTRIBUTION MAY BE LIMITED BY
STATE OR FEDERAL SECURITIES LAWS OR THE PUBLIC POLICY UNDERLYING SUCH LAWS,
EXCEPT AS ENFORCEABILITY MAY BE LIMITED BY APPLICABLE BANKRUPTCY, INSOLVENCY,
REORGANIZATION, MORATORIUM OR SIMILAR LAWS AFFECTING CREDITORS' AND CONTRACTING
PARTIES' RIGHTS GENERALLY AND EXCEPT AS ENFORCEABILITY MAY BE SUBJECT TO GENERAL
PRINCIPLES OF