THE PASSAGE OF TIME) UNDER (X) THE COMPANY'S
CHARTER OR BY-LAWS OR (Y) ANY AGREEMENTS TO WHICH THE COMPANY IS A PARTY, OR ANY
APPLICABLE STATUTE, RULE, REGULATION, ORDER OR RESTRICTION OF ANY FEDERAL OR
STATE GOVERNMENTAL ENTITY OR AGENCY THEREOF, OR (II) THE CREATION OF ANY
MORTGAGE, PLEDGE, LIEN, ENCUMBRANCE, OR CHARGE UPON ANY OF THE PROPERTIES OR
ASSETS OF THE COMPANY THAT, IN THE CASE OF ANY SUCH MATTER REFERRED TO IN EITHER
CLAUSE (I) OR (II), WOULD REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE
EFFECT UPON THE COMPANY.
3.5
GOVERNMENTAL CONSENT, ETC.
NO CONSENT,
APPROVAL OR AUTHORIZATION OF OR DESIGNATION, DECLARATION OR FILING WITH ANY
GOVERNMENTAL AUTHORITY ON THE PART OF THE COMPANY IS REQUIRED IN CONNECTION WITH
THE VALID EXECUTION AND DELIVERY OF THIS AGREEMENT OR THE OFFER, SALE OR
ISSUANCE OF THE SHARES, OR THE CONSUMMATION OF ANY OTHER TRANSACTION
CONTEMPLATED HEREBY.
3.6
REGISTRATION.
THE REGISTRATION STATEMENT
(FILE NO. 333-124948) COVERING SHARES OF COMMON STOCK, INCLUDING THE SHARES, HAS
BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION (THE "COMMISSION") AND
HAS BECOME EFFECTIVE.
ON THE EFFECTIVE DATE OF THE REGISTRATION STATEMENT AND
ON THE DATE HEREOF, THE REGISTRATION STATEMENT CONFORMED IN ALL RESPECTS TO THE
REQUIREMENTS OF THE ACT AND THE RULES AND REGULATIONS OF THE COMMISSION ("SEC
REGULATIONS") AND DID NOT INCLUDE ANY UNTRUE STATEMENT OF A MATERIAL FACT OR
OMIT TO STATE ANY MATERIAL FACT REQUIRED TO BE STATED THEREIN OR NECESSARY TO
MAKE THE STATEMENTS THEREIN NOT MISLEADING, AND ON THE DATE HEREOF AND AT THE
TIME OF FILING THE PROSPECTUS PURSUANT TO RULE 424(B) OF THE SEC REGULATIONS,
THE PROSPECTUS CONFORMED AND WILL CONFORM IN ALL RESPECTS TO THE REQUIREMENTS OF
THE ACT AND THE SEC REGULATIONS, AND AS OF SUCH DATES THE PROSPECTUS DID NOT
INCLUDE NOR WILL IT INCLUDE ANY UNTRUE STATEMENT OF A MATERIAL FACT OR OMIT TO
STATE ANY MATERIAL FACT NECESSARY TO MAKE THE STATEMENTS THEREIN, IN LIGHT OF
THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING, EXCEPT THAT THE
FOREGOING DOES NOT APPLY TO STATEMENTS IN OR OMISSIONS FROM ANY OF SUCH
DOCUMENTS BASED UPON WRITTEN INFORMATION FURNISHED TO THE COMPANY BY PURCHASER
SPECIFICALLY FOR USE THEREIN.
SECTION 4
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Each Purchaser hereby represents and warrants to the Company with respect to the
purchase of the Shares as follows:
4.1
INSTITUTIONAL ACCREDITED INVESTOR;
EXPERIENCE.
SUCH PURCHASER IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501 UNDER THE ACT), WITH SUBSTANTIAL EXPERIENCE IN EVALUATING
AND INVESTING IN SECURITIES OF COMPANIES SIMILAR TO THE COMPANY SO THAT IT IS
CAPABLE OF EVALUATING THE MERITS AND RISKS OF ITS INVESTMENT IN THE COMPANY AND
HAS THE CAPACITY TO PROTECT ITS OWN INTERESTS.
3
4.2
INVESTMENT.
IT IS ACQUIRING THE SHARES FOR
INVESTMENT FOR ITS OWN ACCOUNT OR FOR THE ACCOUNTS OF PERSONS FOR WHOM IT ACTS
AS AN INVESTMENT ADVISOR, IN EITHER CASE FOR INVESTMENT PURPOSES, AND NOT WITH
THE VIEW TO, OR FOR RESALE IN CONNECTION WITH, ANY DISTRIBUTION