SHARES HAVE BEEN DULY AUTHORIZED FOR ISSUANCE AND SALE TO THE
PURCHASER PURSUANT TO THIS AGREEMENT AND, WHEN ISSUED AND DELIVERED BY THE
COMPANY PURSUANT TO THIS AGREEMENT AGAINST PAYMENT OF THE CONSIDERATION SET
FORTH IN THIS AGREEMENT, WILL BE VALIDLY ISSUED AND FULLY PAID AND NONASSESSABLE
AND FREE AND CLEAR OF ALL PLEDGES, LIENS AND ENCUMBRANCES. THE CERTIFICATES
EVIDENCING THE SHARES WHEN DELIVERED, WILL BE IN DUE AND PROPER FORM UNDER
DELAWARE LAW.
(B)
THE ISSUANCE OF THE SHARES IS NOT SUBJECT TO PREEMPTIVE OR OTHER
SIMILAR RIGHTS.
(C)
SUBJECT TO THE ACCURACY OF THE PURCHASERS' REPRESENTATIONS AND
WARRANTIES IN SECTION 5 OF THIS AGREEMENT, THE OFFER, SALE AND ISSUANCE OF THE
SHARES IN CONFORMITY WITH THE TERMS OF THIS AGREEMENT CONSTITUTE TRANSACTIONS
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF SECTION 5 OF THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND FROM THE REGISTRATION OR
QUALIFICATION REQUIREMENTS OF THE LAWS OF ANY APPLICABLE STATE OR UNITED STATES
JURISDICTION.
2
4.2
DUE EXECUTION, DELIVERY AND PERFORMANCE
(A)
THIS AGREEMENT HAS BEEN DULY EXECUTED AND DELIVERED BY THE COMPANY
AND CONSTITUTES A VALID AND BINDING OBLIGATION OF THE COMPANY, ENFORCEABLE
AGAINST THE COMPANY IN ACCORDANCE WITH ITS TERMS, EXCEPT AS SUCH ENFORCEABILITY
MAY BE LIMITED BY (I) APPLICABLE BANKRUPTCY OR OTHER SIMILAR LAWS RELATING TO,
OR AFFECTING GENERALLY THE ENFORCEMENT OF, CREDITORS' RIGHTS OR REMEDIES,
(II) GENERAL PRINCIPLES OF EQUITY OR (III) APPLICABLE LAWS AND CONSIDERATION OF
PUBLIC POLICY RELATING TO INDEMNIFICATION AND CONTRIBUTION PROVISIONS.
(B)
THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT, AND THE
COMPANY'S SALE, ISSUANCE AND DELIVERY OF THE SHARES, HAVE BEEN DULY AUTHORIZED
BY ALL NECESSARY CORPORATE ACTION ON THE PART OF THE COMPANY.
(C)
ORGANIZATION.
EACH OF THE COMPANY AND ITS SUBSIDIARIES (AS
DEFINED IN RULE 405 UNDER THE SECURITIES ACT) IS DULY ORGANIZED 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 FINANCIAL CONDITION OR BUSINESS, OPERATIONS, ASSETS OR PROSPECTS
OF THE COMPANY AND ITS SUBSIDIARIES, TAKEN AS A WHOLE (A "MATERIAL ADVERSE
EFFECT").
(D)
DUE AUTHORIZATION.
THE COMPANY HAS ALL REQUISITE POWER AND
AUTHORITY TO EXECUTE, DELIVER AND PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT,
AND HAS TAKEN ALL NECESSARY CORPORATE ACTION TO ENTER INTO AND PERFORM THIS
AGREEMENT, TO ISSUE THE SHARES IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
(E)
NON-CONTRAVENTION.
EXCEPT AS WOULD NOT REASONABLY BE EXPECTED TO
HAVE A MATERIAL ADVERSE EFFECT, THE EXECUTION AND DELIVERY OF THIS AGREEMENT,
THE ISSUANCE AND SALE OF THE SHARES UNDER THIS AGREEMENT, THE FULFILLMENT OF THE
TERMS OF THIS AGREEMENT AND THE CONSUMMATION OF THE TRANSACTIONS