IT HAS PUBLICLY DISCLOSED ALL
MATERIAL INFORMATION WITH RESPECT TO ITS CONDITION (FINANCIAL OR OTHERWISE).
(B)
IF PARTY B WOULD BE OBLIGATED TO RECEIVE CASH FROM PARTY A PURSUANT
TO THE TERMS OF THIS AGREEMENT FOR ANY REASON WITHOUT HAVING HAD THE RIGHT TO
ELECT TO RECEIVE SHARES IN SATISFACTION OF SUCH PAYMENT OBLIGATION, THEN PARTY B
MAY ELECT THAT PARTY A DELIVER TO PARTY B A NUMBER OF SHARES HAVING A CASH VALUE
EQUAL TO THE AMOUNT OF SUCH PAYMENT OBLIGATION (SUCH NUMBER OF SHARES TO BE
DELIVERED TO BE DETERMINED BY THE CALCULATION AGENT ACTING IN A COMMERCIALLY
REASONABLE MANNER TO DETERMINE THE NUMBER OF SHARES THAT COULD BE PURCHASED OVER
A REASONABLE PERIOD OF TIME WITH THE CASH EQUIVALENT OF SUCH PAYMENT
OBLIGATION). SETTLEMENT RELATING TO ANY DELIVERY OF SHARES PURSUANT TO THIS
PARAGRAPH (B) SHALL OCCUR WITHIN A REASONABLE PERIOD OF TIME.
(C)
PARTY B SHALL DELIVER TO THE PARTY A AN OPINION OR OPINIONS OF
COUNSEL WITH RESPECT TO THE MATTERS SET FORTH ON ANNEX 1 HERETO ON OR BEFORE THE
EFFECTIVE DATE.
(D)
IN ADDITION TO THE REPRESENTATIONS AND WARRANTIES IN THE AGREEMENT
AND THOSE CONTAINED ELSEWHERE HEREIN, PARTY B REPRESENTS AND WARRANTS TO AND FOR
THE BENEFIT OF, AND AGREES WITH, PARTY A AS FOLLOWS:
(i)
(A) On the Effective Date, the Shares or securities that are
convertible into, or exchangeable or exercisable for Shares, are not, and shall
not be, subject to a "restricted period," as such term is defined in
Regulation M ("Regulation M") under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") and (B) Party B shall not engage in any
"distribution," as such term is defined in Regulation M, other than a
distribution meeting the requirements of the exceptions set forth in sections
101(b)(10) and 102(b)(7) of Regulation M, until the second Exchange Business Day
immediately following the Trade Date.
(ii)
Party B is not entering into this Confirmation to create actual
or apparent trading activity in the Shares (or any security convertible into or
exchangeable for Shares) or to manipulate the price of the Shares (or any
security convertible into or exchangeable for Shares) or otherwise in violation
of the Exchange Act.
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(iii)
Without limiting the generality of Section 3(a)(iii) of the
Agreement, the Transaction will not violate Rule 13e-1 or Rule 13e-4 under the
Exchange Act.
(iv)
Prior to the Effective Date, Party B shall deliver to Party A a
resolution of Party B's board of directors authorizing the Transaction and such
other certificate or certificates as Party A shall reasonably request.
(v)
Party B is not, and after giving effect to the transactions
contemplated hereby will not be, required to register as an "investment company"
as such term is defined in the Investment Company Act of 1940, as amended.
(vi)
On the Trade Date (A) the assets of Party B at their fair
valuation exceed the liabilities of Party B, including contingent liabilities,
(B) the capital of Party B is adequate