ACT OF
1935, AS AMENDED.
THE COMPANY IS NOT, AND AS A RESULT OF AND IMMEDIATELY UPON
CLOSING WILL NOT BE, AN "INVESTMENT COMPANY" OR A COMPANY "CONTROLLED" BY AN
"INVESTMENT COMPANY", WITHIN THE MEANING OF THE INVESTMENT COMPANY ACT OF 1940,
AS AMENDED.
(CC)
ERISA. NO LIABILITY TO THE PENSION BENEFIT
GUARANTY CORPORATION HAS BEEN INCURRED WITH RESPECT TO ANY PLAN BY THE COMPANY
OR ANY OF ITS SUBSIDIARIES WHICH IS OR WOULD CAUSE A MATERIAL ADVERSE EFFECT.
THE EXECUTION AND DELIVERY OF THIS AGREEMENT AND THE ISSUE AND SALE OF THE
SHARES, THE WARRANTS AND THE AIRS WILL NOT INVOLVE ANY TRANSACTION WHICH IS
SUBJECT TO THE PROHIBITIONS OF SECTION 406 OF ERISA OR IN CONNECTION WITH WHICH
A TAX COULD BE IMPOSED PURSUANT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"); PROVIDED THAT, IF ANY PURCHASER, OR ANY PERSON
THAT OWNS A BENEFICIAL INTEREST IN ANY PURCHASER, IS AN "EMPLOYEE PENSION
BENEFIT PLAN" (WITHIN THE MEANING OF SECTION 3(2) OF ERISA) WITH RESPECT TO
WHICH THE COMPANY IS A "PARTY IN INTEREST" (WITHIN THE MEANING OF SECTION 3(14)
OF ERISA), THE REQUIREMENTS OF SECTIONS 407(D)(5) AND 408(E) OF ERISA, IF
APPLICABLE, ARE MET.
AS USED IN THIS SECTION 2.1(CC), THE TERM "PLAN" SHALL
MEAN AN "EMPLOYEE PENSION BENEFIT PLAN" (AS DEFINED IN SECTION 3 OF ERISA) WHICH
IS OR HAS BEEN ESTABLISHED OR MAINTAINED, OR TO WHICH CONTRIBUTIONS ARE OR HAVE
BEEN MADE, BY THE COMPANY OR ANY SUBSIDIARY OR BY ANY TRADE OR BUSINESS, WHETHER
OR NOT INCORPORATED, WHICH, TOGETHER WITH THE COMPANY OR ANY SUBSIDIARY, IS
UNDER COMMON CONTROL, AS DESCRIBED IN SECTION 414(B) OR (C) OF THE CODE.
(DD)
DELISTING NOTIFICATION. THE COMPANY HAS NOT
RECEIVED A DELISTING NOTIFICATION FROM THE AMERICAN STOCK EXCHANGE THAT HAS NOT
BEEN RESCINDED, AND, TO ITS KNOWLEDGE, THERE ARE NO EXISTING FACTS OR
CIRCUMSTANCES THAT COULD GIVE RISE TO THE DELISTING OF THE COMMON STOCK FROM THE
AMERICAN STOCK EXCHANGE.
12
(EE)
SARBANES-OXLEY ACT. THE COMPANY IS IN COMPLIANCE
WITH ANY AND ALL APPLICABLE REQUIREMENTS OF THE SARBANES-OXLEY ACT OF 2002 THAT
ARE EFFECTIVE AS OF THE DATE HEREOF, AND ANY AND ALL APPLICABLE RULES AND
REGULATIONS PROMULGATED BY THE COMMISSION THEREUNDER THAT ARE EFFECTIVE AS OF
THE DATE HEREOF, EXCEPT WHERE SUCH NONCOMPLIANCE WOULD NOT HAVE, INDIVIDUALLY OR
IN THE AGGREGATE, A MATERIAL ADVERSE EFFECT.
SECTION 2.2
REPRESENTATIONS AND WARRANTIES
OF THE PURCHASERS. EACH OF THE PURCHASERS HEREBY MAKES THE FOLLOWING
REPRESENTATIONS AND WARRANTIES TO THE COMPANY WITH RESPECT SOLELY TO ITSELF AND
NOT WITH RESPECT TO ANY OTHER PURCHASER:
(A)
ORGANIZATION AND STANDING OF THE
PURCHASERS. IF SUCH PURCHASER IS AN ENTITY, SUCH PURCHASER IS A CORPORATION,
LIMITED LIABILITY COMPANY OR PARTNERSHIP DULY INCORPORATED OR ORGANIZED, VALIDLY
EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE JURISDICTION OF ITS
INCORPORATION OR ORGANIZATION.
(B)
AUTHORIZATION AND POWER. SUCH PURCHASER HAS
THE REQUISITE POWER AND AUTHORITY TO ENTER INTO AND PERFORM THE TRANSACTION
DOCUMENTS AND TO PURCHASE THE SHARES, THE