other agreements or arrangements
of any character or nature whatever under which the Company is obligated to
issue any securities of any kind representing an ownership interest in the
Company, except as may arise by this Agreement or the Repurchase.
(c)
All of the outstanding shares of capital stock are duly
authorized, validly issued, fully paid and nonassessable, and all such shares
were issued in material compliance with all applicable federal and state
securities laws, including available exemptions therefrom, and none of such
issuances were made in violation of any pre-emptive or other rights.
3.5.
AUTHORIZATION; VALID ISSUANCE.
(A) ALL CORPORATE ACTION ON THE
PART OF THE COMPANY, ITS DIRECTORS AND STOCKHOLDERS NECESSARY FOR THE
AUTHORIZATION, EXECUTION, DELIVERY AND PERFORMANCE OF THE TRANSACTION AGREEMENTS
BY THE COMPANY, FOR THE AUTHORIZATION, SALE, ISSUANCE AND DELIVERY OF THE
SHARES, AND FOR THE PERFORMANCE OF ALL OF THE COMPANY'S OBLIGATIONS UNDER THE
AGREEMENTS HAS BEEN TAKEN OR WILL BE TAKEN PRIOR TO THE CLOSING DATE.
THE
AGREEMENTS HAVE BEEN DULY EXECUTED AND DELIVERED BY THE COMPANY AND CONSTITUTE
VALID AND BINDING OBLIGATIONS OF THE COMPANY, ENFORCEABLE IN ACCORDANCE WITH
THEIR TERMS, SUBJECT TO APPLICABLE BANKRUPTCY, INSOLVENCY, REORGANIZATION OR
SIMILAR LAWS AFFECTING CREDITORS' RIGHTS GENERALLY AND TO GENERAL PRINCIPLES OF
EQUITY AND TO LIMITATIONS ON THE RIGHTS TO INDEMNITY AND CONTRIBUTION THAT EXIST
BY VIRTUE OF PUBLIC POLICY (THE "BANKRUPTCY AND EQUITY EXCEPTION").
(b)
The Shares will, upon issuance pursuant to the terms hereof and
upon payment therefor, be duly authorized and validly issued, fully paid and
non-assessable and except for the rights granted to Purchasers hereunder, will
be free of preemptive or similar rights.
3.6.
REPORTS AND FINANCIAL STATEMENTS.
(A) THE COMPANY HAS FILED ALL
REPORTS REQUIRED TO BE FILED BY IT UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED (THE "EXCHANGE ACT"), INCLUDING,
3
PURSUANT TO SECTION 13(A) OR 15(D) THEREOF, FOR THE THREE YEARS PRECEDING THE
DATE HEREOF (THE FOREGOING MATERIALS BEING COLLECTIVELY REFERRED TO HEREIN AS
THE "SEC REPORTS"), ON A TIMELY BASIS, OR HAS RECEIVED A VALID EXTENSION OF SUCH
TIME OF FILING AND HAS FILED ANY SUCH SEC REPORTS PRIOR TO THE EXPIRATION OF ANY
SUCH EXTENSION.
AT THE RESPECTIVE TIMES OF FILING, THE SEC REPORTS COMPLIED AS
TO FORM IN ALL MATERIAL RESPECTS WITH THE REQUIREMENTS OF THE SECURITIES ACT AND
THE EXCHANGE ACT AND THE RULES AND REGULATIONS OF THE SECURITIES AND EXCHANGE
COMMISSION ("SEC") PROMULGATED THEREUNDER.
THE SEC REPORTS DID NOT CONTAIN AND,
WITH RESPECT SOLELY TO ANY SEC REPORTS FILED AFTER THE DATE HEREOF, TO THE BEST
OF THE COMPANY'S KNOWLEDGE WILL NOT CONTAIN ANY UNTRUE STATEMENT OF A MATERIAL
FACT OR OMIT TO STATE A MATERIAL FACT REQUIRED TO BE STATED THEREIN OR NECESSARY
IN ORDER TO MAKE THE STATEMENTS THEREIN, IN LIGHT OF THE CIRCUMSTANCES UNDER
WHICH THEY WERE MADE, NOT MISLEADING.
(B)
THE AUDITED CONSOLIDATED FINANCIAL STATEMENTS AND UNAUDITED
INTERIM CONSOLIDATED FINANCIAL STATEMENTS (INCLUDING, IN EACH CASE, THE NOTES,
IF ANY, THERETO), IF ANY, INCLUDED IN THE SEC REPORTS