CONTROL OF THE U.S. TREASURY DEPARTMENT ("OFAC"); AND THE COMPANY WILL NOT
DIRECTLY OR INDIRECTLY USE THE PROCEEDS OF THE OFFERING, OR LEND, CONTRIBUTE OR
OTHERWISE MAKE AVAILABLE SUCH PROCEEDS TO ANY JOINT VENTURE PARTNER OR OTHER
PERSON OR ENTITY, FOR THE PURPOSE OF FINANCING THE ACTIVITIES OF ANY PERSON
CURRENTLY SUBJECT TO ANY U.S. SANCTIONS ADMINISTERED BY OFAC.
(Z)
THE COMPANY HAS NOT DISTRIBUTED AND, PRIOR TO THE LATER TO OCCUR
OF THE CLOSING DATE AND COMPLETION OF THE DISTRIBUTION OF THE SHARES, WILL NOT
DISTRIBUTE ANY OFFERING MATERIAL IN CONNECTION WITH THE OFFERING AND SALE OF THE
SHARES OTHER THAN ANY PRELIMINARY PROSPECTUS, THE PROSPECTUS, OR ANY ISSUER FREE
WRITING PROSPECTUS TO WHICH THE PLACEMENT AGENT HAVE CONSENTED IN ACCORDANCE
WITH SECTION 1(C) OR SECTION 4(A)(VI).
7
(AA)
THE COMPANY HAS NOT TAKEN AND WILL NOT TAKE, DIRECTLY OR
INDIRECTLY, ANY ACTION DESIGNED TO OR THAT HAS CONSTITUTED OR THAT COULD
REASONABLY BE EXPECTED TO CAUSE OR RESULT IN THE STABILIZATION OR MANIPULATION
OF THE PRICE OF ANY SECURITY OF THE COMPANY TO FACILITATE THE SALE OR RESALE OF
THE SHARES OF THE SHARES.
(BB)
EXCEPT AS DESCRIBED IN THE TIME OF SALE PROSPECTUS, THE COMPANY HAS
NOT SOLD, ISSUED OR DISTRIBUTED ANY SHARES OF COMMON STOCK SINCE JANUARY 18,
2006, INCLUDING ANY SALES PURSUANT TO RULE 144A UNDER, OR REGULATION D OR S OF,
THE SECURITIES ACT, OTHER THAN SHARES ISSUED PURSUANT TO EMPLOYEE BENEFIT PLANS,
QUALIFIED STOCK OPTION PLANS OR OTHER EMPLOYEE COMPENSATION PLANS OR PURSUANT TO
OUTSTANDING OPTIONS, RIGHTS OR WARRANTS.
(CC)
DELOITTE AND TOUCHE LLP, PRICEWATERHOUSECOOPERS LLP AND
PRICEWATERHOUSECOOPERS EHF, WHO HAVE CERTIFIED CERTAIN FINANCIAL STATEMENTS OF
THE COMPANY AND ITS SUBSIDIARIES, ARE EACH INDEPENDENT PUBLIC ACCOUNTANTS WITH
RESPECT TO THE COMPANY AND ITS SUBSIDIARIES AS REQUIRED BY THE SECURITIES ACT.
(DD)
NO PERSON HAS THE RIGHT TO REQUIRE THE COMPANY OR ANY OF ITS
SUBSIDIARIES TO REGISTER ANY SECURITIES FOR SALE UNDER THE SECURITIES ACT BY
REASON OF THE FILING OF THE REGISTRATION STATEMENT WITH THE COMMISSION OR THE
ISSUANCE AND SALE OF THE SHARES.
Any certificate signed by any officer of the Company and delivered to the
Placement Agent or counsel for the Placement Agent in connection with the
offering of the Shares shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to the Placement Agent.
2.
PLACEMENT OF THE SHARES BY THE PLACEMENT AGENTS.
ON THE BASIS OF THE
REPRESENTATIONS AND WARRANTIES AND AGREEMENTS OF THE COMPANY CONTAINED IN, AND
SUBJECT TO THE TERMS AND CONDITIONS OF, THIS AGREEMENT, THE PLACEMENT AGENTS
AGREE TO ACT AS THE COMPANY'S EXCLUSIVE PLACEMENT AGENTS IN CONNECTION WITH THE
ISSUANCE AND SALE, ON A BEST EFFORTS BASIS, BY THE COMPANY OF THE SHARES TO THE
INVESTORS. UPON THE OCCURRENCE OF THE CLOSING (AS HEREINAFTER DEFINED), THE
COMPANY SHALL PAY TO THE PLACEMENT AGENTS 6.0% OF THE PROCEEDS RECEIVED BY THE
COMPANY FROM THE SALE OF THE SHARES TO ALL INVESTORS.
3.
DELIVERY OF AND PAYMENT FOR THE SHARES.