ASSUMING THE ACCURACY
OF THE PURCHASERS' REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 3.2, NO
REGISTRATION UNDER THE SECURITIES ACT IS REQUIRED FOR THE OFFER AND SALE OF THE
SECURITIES BY THE COMPANY TO THE PURCHASERS AS CONTEMPLATED HEREBY. THE ISSUANCE
AND SALE OF THE SECURITIES HEREUNDER DOES NOT CONTRAVENE THE RULES AND
REGULATIONS OF ANY APPLICABLE TRADING MARKET.
(U)
INVESTMENT COMPANY. THE COMPANY IS NOT, AND IS
NOT AN AFFILIATE OF, AND IMMEDIATELY AFTER RECEIPT OF PAYMENT FOR THE
SECURITIES, WILL NOT BE OR BE AN AFFILIATE OF, AN "INVESTMENT COMPANY" WITHIN
THE MEANING OF THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED.
THE COMPANY
SHALL CONDUCT ITS BUSINESS IN A MANNER SO THAT IT WILL NOT BECOME SUBJECT TO THE
INVESTMENT COMPANY ACT OF 1940, AS AMENDED.
(V)
REGISTRATION RIGHTS.
OTHER THAN EACH OF THE
PURCHASERS, NO PERSON HAS ANY RIGHT TO CAUSE THE COMPANY TO EFFECT THE
REGISTRATION UNDER THE SECURITIES ACT OF ANY SECURITIES OF THE COMPANY.
(W)
[RESERVED].
(X)
APPLICATION OF TAKEOVER PROTECTIONS.
THE
COMPANY AND THE BOARD OF DIRECTORS HAVE TAKEN ALL NECESSARY ACTION, IF ANY, IN
ORDER TO RENDER INAPPLICABLE ANY CONTROL SHARE ACQUISITION, BUSINESS
COMBINATION, POISON PILL (INCLUDING ANY DISTRIBUTION UNDER A RIGHTS AGREEMENT)
OR OTHER SIMILAR ANTI-TAKEOVER PROVISION UNDER THE COMPANY'S CERTIFICATE OF
INCORPORATION (OR SIMILAR CHARTER DOCUMENTS) OR THE LAWS OF ITS STATE OF
INCORPORATION THAT IS OR COULD BECOME APPLICABLE TO THE PURCHASERS AS A RESULT
OF THE PURCHASERS AND THE COMPANY FULFILLING THEIR OBLIGATIONS OR EXERCISING
THEIR RIGHTS UNDER THE TRANSACTION DOCUMENTS, INCLUDING WITHOUT LIMITATION AS A
RESULT OF THE COMPANY'S ISSUANCE OF THE SECURITIES AND THE PURCHASERS' OWNERSHIP
OF THE SECURITIES.
(Y)
DISCLOSURE.
EXCEPT WITH RESPECT TO THE
MATERIAL TERMS AND CONDITIONS OF THE TRANSACTIONS CONTEMPLATED BY THE
TRANSACTION DOCUMENTS, THE COMPANY CONFIRMS THAT NEITHER IT NOR ANY OTHER PERSON
ACTING ON ITS BEHALF HAS PROVIDED ANY OF THE PURCHASERS OR THEIR AGENTS OR
COUNSEL WITH ANY INFORMATION THAT IT BELIEVES CONSTITUTES OR MIGHT CONSTITUTE
MATERIAL, NONPUBLIC INFORMATION.
THE COMPANY UNDERSTANDS AND CONFIRMS THAT THE
PURCHASERS WILL RELY ON THE FOREGOING REPRESENTATION IN EFFECTING TRANSACTIONS
IN SECURITIES OF THE COMPANY.
ALL DISCLOSURE FURNISHED BY OR ON BEHALF OF THE
COMPANY TO THE PURCHASERS REGARDING THE COMPANY, ITS BUSINESS AND THE
TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING THE DISCLOSURE SCHEDULES TO THIS
AGREEMENT, IS TRUE AND CORRECT AND DOES NOT CONTAIN ANY UNTRUE STATEMENT OF A
MATERIAL FACT OR OMIT TO STATE ANY MATERIAL FACT NECESSARY IN ORDER TO MAKE THE
STATEMENTS MADE THEREIN, IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE
MADE, NOT MISLEADING.
THE PRESS RELEASES DISSEMINATED BY THE COMPANY DURING
THE TWELVE MONTHS PRECEDING THE DATE OF THIS AGREEMENT TAKEN AS A WHOLE DID NOT,
AT THE TIME THEY WERE ISSUED, 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
15
MAKE THE STATEMENTS THEREIN, IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE
MADE AND WHEN MADE, NOT