SOLICITING ANOTHER TO PURCHASE ANY OTHER
SECURITIES OF THE COMPANY.
(HH)
FORM S-3 ELIGIBILITY.
THE COMPANY IS ELIGIBLE TO REGISTER THE
RESALE OF ITS COMMON STOCK ISSUABLE TO THE PURCHASERS UPON THE CONVERSION OR
EXERCISE OF THE SECURITIES, AS APPLICABLE, PURSUANT TO FORM S-3 PROMULGATED
UNDER THE SECURITIES ACT.
(II)
BOOKS AND RECORDS.
THE MINUTE BOOKS OF THE COMPANY FOR THE
COMPANY'S FISCAL YEARS 2006, 2007 AND YEAR-TO-DATE 2008 CONTAIN ACCURATE AND
COMPLETE RECORDS OF ALL MEETINGS HELD OF, AND CORPORATE ACTION TAKEN BY, THE
STOCKHOLDERS, THE BOARD OF DIRECTORS AND COMMITTEES OF THE BOARD OF DIRECTORS
DURING SUCH PERIOD, AND NO MEETING OF ANY SUCH STOCKHOLDERS, THE BOARD OF
DIRECTORS OR SUCH COMMITTEES HAS BEEN HELD FOR WHICH MINUTES HAVE NOT BEEN
PREPARED AND ARE NOT CONTAINED IN SUCH MINUTE BOOKS.
16
(JJ)
CONTRACTS.
(I)
ALL AGREEMENTS, CONTRACTS AND COMMITMENTS REQUIRED TO BE FILED BY
THE COMPANY UNDER THE EXCHANGE ACT OR THE SECURITIES ACT HAVE BEEN FILED IN A
TIMELY MANNER WITH THE COMMISSION.
(II)
THE COMPANY IS NOT RESTRICTED BY AGREEMENT FROM CARRYING ON ITS
BUSINESS ANYWHERE IN THE WORLD.
3.2
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS.
EACH PURCHASER
HEREBY, FOR ITSELF, SEVERALLY AND NOT JOINTLY, REPRESENTS AND WARRANTS AS OF THE
DATE HEREOF AND AS OF THE CLOSING DATE TO THE COMPANY AS FOLLOWS:
(A)
ORGANIZATION; AUTHORITY.
SUCH PURCHASER IS AN ENTITY DULY ORGANIZED,
VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE JURISDICTION OF ITS
ORGANIZATION WITH FULL RIGHT, CORPORATE OR PARTNERSHIP POWER AND AUTHORITY TO
ENTER INTO AND TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THE TRANSACTION
DOCUMENTS AND OTHERWISE TO CARRY OUT ITS OBLIGATIONS HEREUNDER AND THEREUNDER.
THE EXECUTION, DELIVERY AND PERFORMANCE BY SUCH PURCHASER OF THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT HAVE BEEN DULY AUTHORIZED BY ALL NECESSARY
CORPORATE OR SIMILAR ACTION ON THE PART OF SUCH PURCHASER.
EACH TRANSACTION
DOCUMENT TO WHICH IT IS A PARTY HAS BEEN DULY EXECUTED BY SUCH PURCHASER, AND
WHEN DELIVERED BY SUCH PURCHASER IN ACCORDANCE WITH THE TERMS HEREOF AND
THEREOF, WILL CONSTITUTE THE VALID AND LEGALLY BINDING OBLIGATION OF SUCH
PURCHASER, ENFORCEABLE AGAINST IT IN ACCORDANCE WITH ITS TERMS, EXCEPT (I) AS
LIMITED BY GENERAL EQUITABLE PRINCIPLES AND APPLICABLE BANKRUPTCY, INSOLVENCY,
REORGANIZATION, MORATORIUM AND OTHER LAWS OF GENERAL APPLICATION AFFECTING
ENFORCEMENT OF CREDITORS' RIGHTS GENERALLY, (II) AS LIMITED BY LAWS RELATING TO
THE AVAILABILITY OF SPECIFIC PERFORMANCE, INJUNCTIVE RELIEF OR OTHER EQUITABLE
REMEDIES AND (III) INSOFAR AS INDEMNIFICATION AND CONTRIBUTION PROVISIONS MAY BE
LIMITED BY APPLICABLE LAW.
(B)
OWN ACCOUNT.
SUCH PURCHASER UNDERSTANDS THAT (I) THE SECURITIES ARE
"RESTRICTED SECURITIES" AND THAT THE OFFER AND SALE OF THE SECURITIES HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAW
AND (II) THE SECURITIES MUST BE HELD INDEFINITELY UNLESS A SUBSEQUENT
DISPOSITION THEREOF IS REGISTERED UNDER THE SECURITIES ACT OR IS EXEMPT FROM
SUCH REGISTRATION.
SUCH PURCHASER IS ACQUIRING THE SECURITIES AS PRINCIPAL FOR
ITS OWN ACCOUNT AND NOT WITH A VIEW TO OR FOR DISTRIBUTING OR RESELLING SUCH