PERFORMANCE OF
THIS AGREEMENT BY THE COMPANY AND THE CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED HEREBY ARE WITHIN THE CORPORATE POWERS OF THE COMPANY AND HAVE BEEN
DULY AUTHORIZED BY ALL NECESSARY CORPORATE ACTION ON THE PART OF THE COMPANY AND
THIS AGREEMENT, WHEN DULY EXECUTED AND DELIVERED BY THE PARTIES HERETO, WILL
CONSTITUTE A VALID AND LEGALLY BINDING INSTRUMENT OF THE COMPANY ENFORCEABLE IN
ACCORDANCE WITH ITS TERMS, EXCEPT AS ENFORCEMENT HEREOF MAY BE LIMITED BY THE
EFFECT OF ANY APPLICABLE BANKRUPTCY, INSOLVENCY, REORGANIZATION OR SIMILAR LAWS
OR COURT DECISIONS AFFECTING ENFORCEMENT OF CREDITORS' RIGHTS GENERALLY AND
EXCEPT AS ENFORCEMENT HEREOF IS SUBJECT TO GENERAL PRINCIPLES OF EQUITY
(REGARDLESS OF WHETHER ENFORCEMENT IS CONSIDERED IN A PROCEEDING IN EQUITY OR AT
LAW).
(4)
THE INVESTOR SHARES HAVE BEEN DULY
AUTHORIZED BY THE COMPANY, AND WHEN ISSUED AND DELIVERED BY THE COMPANY AGAINST
PAYMENT THEREFOR AS CONTEMPLATED BY THIS AGREEMENT, THE INVESTOR SHARES WILL BE
VALIDLY ISSUED, FULLY PAID AND NONASSESSABLE, AND WILL CONFORM TO THE
DESCRIPTION OF THE COMMON STOCK CONTAINED IN THE PROSPECTUS.
(5)
THE EXECUTION AND DELIVERY OF THIS
AGREEMENT DO NOT, AND THE COMPLIANCE BY THE COMPANY WITH THE TERMS HEREOF WILL
NOT, (I) VIOLATE THE CERTIFICATE OF INCORPORATION (AS AMENDED TO DATE) OF THE
COMPANY OR THE BY-LAWS (AS AMENDED TO DATE) OF THE COMPANY, (II) RESULT IN A
BREACH OR VIOLATION OF ANY OF THE TERMS OR PROVISIONS OF, OR CONSTITUTE A
DEFAULT UNDER, ANY INDENTURE, MORTGAGE, DEED OF TRUST, LOAN AGREEMENT OR OTHER
AGREEMENT OR INSTRUMENT TO WHICH THE COMPANY OR ANY OF ITS SUBSIDIARIES IS A
PARTY OR BY WHICH THE COMPANY OR ANY OF ITS SUBSIDIARIES IS BOUND OR TO WHICH
ANY OF THEIR PROPERTIES OR ASSETS ARE SUBJECT, OR (III) RESULT IN A VIOLATION
OF, OR FAILURE TO BE IN COMPLIANCE WITH, ANY APPLICABLE STATUTE OR ANY ORDER,
JUDGMENT, DECREE, RULE OR REGULATION OF ANY COURT OR GOVERNMENTAL, REGULATORY OR
SELF-REGULATORY AGENCY OR BODY HAVING JURISDICTION OVER THE COMPANY OR ANY OF
ITS SUBSIDIARIES OR ANY OF THEIR PROPERTIES OR ASSETS, EXCEPT WHERE SUCH BREACH,
VIOLATION, DEFAULT OR THE FAILURE TO BE IN COMPLIANCE WOULD NOT INDIVIDUALLY OR
IN THE AGGREGATE HAVE A MATERIAL ADVERSE EFFECT OR ADVERSELY AFFECT THE ABILITY
OF THE COMPANY TO ISSUE AND SELL THE INVESTOR SHARES; AND NO CONSENT, APPROVAL,
AUTHORIZATION, ORDER, REGISTRATION, FILING OR QUALIFICATION OF OR WITH ANY SUCH
COURT OR GOVERNMENTAL, REGULATORY OR SELF-REGULATORY AGENCY OR BODY IS REQUIRED
FOR THE VALID AUTHORIZATION, EXECUTION, DELIVERY AND PERFORMANCE BY THE COMPANY
OF THIS AGREEMENT OR THE ISSUANCE OF THE INVESTOR SHARES, EXCEPT FOR THE FILING
OF THE PROSPECTUS SUPPLEMENT AND FOR SUCH CONSENTS, APPROVALS, AUTHORIZATIONS,
REGISTRATIONS, FILINGS OR QUALIFICATIONS AS MAY BE REQUIRED UNDER STATE
SECURITIES OR "BLUE SKY" LAWS.
(6)
THE COMPANY MEETS THE REQUIREMENTS FOR USE
OF FORM S-3 UNDER THE SECURITIES ACT.
THE REGISTRATION STATEMENT, WHICH COVERS
THE INVESTOR SHARES, INCLUDING A FORM OF PROSPECTUS AND SUCH AMENDMENTS OR
SUPPLEMENTS TO SUCH REGISTRATION STATEMENT AS MAY HAVE BEEN REQUIRED PRIOR