CERTIFICATE FORM, IN EITHER
CASE PURSUANT TO INSTRUCTIONS OF THE PURCHASERS AS SET FORTH ON
SCHEDULE 2.2(A) HERETO, FREE AND CLEAR OF ANY LIENS OR OTHER ENCUMBRANCES (OTHER
THAN THOSE PLACED THEREON BY OR ON BEHALF OF ANY PURCHASER), AND PURCHASERS,
THROUGH THE PURCHASER OR ENTITY IDENTIFIED ON SCHEDULE 1 AS THE PURCHASERS'
REPRESENTATIVE (THE "PURCHASERS' REPRESENTATIVE"), WILL MAKE PAYMENT TO THE
COMPANY OF THE PURCHASE PRICE, BY WIRE TRANSFER OF IMMEDIATELY AVAILABLE FUNDS
TO AN ACCOUNT DESIGNED BY THE COMPANY AND SET FORTH IN SCHEDULE 2.2(B) HERETO.
THE DELIVERY OF THE SHARES WILL BE PRECEDED BY THE DELIVERY OF, OR ACCOMPANIED
BY, THE PROSPECTUS INCLUDED IN THE REGISTRATION STATEMENT, AS SUPPLEMENTED TO
REFLECT THE TERMS OF THE ISSUANCE AND SALE OF THE SHARES (AS SO SUPPLEMENTED,
AND INCLUDING ALL MATERIAL INCORPORATED BY REFERENCE THEREIN, THE
"PROSPECTUS").
PURCHASERS, ACTING THROUGH THE PURCHASERS' REPRESENTATIVE, AND
THE COMPANY SHALL EXECUTE A CROSS RECEIPT ACKNOWLEDGING RECEIPT OF THE SHARES
AND THE PURCHASE PRICE, RESPECTIVELY.
SECTION 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Purchasers as follows:
3.1
ORGANIZATION AND STANDING; CERTIFICATE AND
BYLAWS.
THE COMPANY IS A CORPORATION DULY ORGANIZED AND EXISTING UNDER, AND BY
VIRTUE OF, THE LAWS OF THE STATE OF CALIFORNIA AND IS IN GOOD STANDING UNDER
SUCH LAWS.
THE COMPANY HAS REQUISITE CORPORATE POWER AND AUTHORITY TO OWN AND
OPERATE ITS PROPERTIES AND ASSETS AND TO CARRY ON ITS BUSINESS AS CURRENTLY
CONDUCTED AND AS PROPOSED TO BE CONDUCTED.
THE COMPANY IS CURRENTLY QUALIFIED
TO DO BUSINESS IN EACH STATE IN WHICH THE FAILURE TO BE SO QUALIFIED WOULD HAVE
A MATERIAL ADVERSE EFFECT ON THE COMPANY'S BUSINESS AS NOW CONDUCTED AND AS
PROPOSED TO BE CONDUCTED.
3.2
CORPORATE POWER.
THE COMPANY HAS ALL
REQUISITE CORPORATE POWER AND AUTHORITY TO EXECUTE AND DELIVER THIS AGREEMENT;
TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED HEREBY; AND TO CARRY OUT AND PERFORM
ITS OBLIGATIONS UNDER THE TERMS HEREOF.
3.3
AUTHORIZATION.
THIS AGREEMENT HAS BEEN DULY
AUTHORIZED, EXECUTED AND DELIVERED BY THE COMPANY AND CONSTITUTES A VALID AND
LEGALLY BINDING AGREEMENT, ENFORCEABLE AGAINST THE COMPANY IN ACCORDANCE WITH
ITS TERMS.
THE SHARES HAVE BEEN DULY AND VALIDLY AUTHORIZED AND, WHEN ISSUED
PURSUANT TO THE TERMS HEREOF, WILL BE VALIDLY ISSUED, FULLY PAID AND
NONASSESSABLE AND WILL CONFORM TO THE DESCRIPTION THEREOF CONTAINED IN THE
REGISTRATION STATEMENT; AND THE SHARES WILL BE FREE OF ANY LIENS OR
ENCUMBRANCES, OTHER THAN ANY LIENS OR ENCUMBRANCES CREATED BY OR IMPOSED UPON
PURCHASERS.
THE SHARES ARE NOT SUBJECT TO ANY PREEMPTIVE RIGHTS OR RIGHTS OF
FIRST REFUSAL SET FORTH IN THE CHARTER DOCUMENTS OF THE COMPANY OR IN ANY
AGREEMENT BY WHICH THE COMPANY IS BOUND.
2
3.4
COMPLIANCE.
THE EXECUTION, DELIVERY, AND
PERFORMANCE OF AND COMPLIANCE WITH THIS AGREEMENT AND THE ISSUANCE OF THE SHARES
BY THE COMPANY HAVE NOT RESULTED AND WILL NOT RESULT IN (I) ANY VIOLATION OF,
CONFLICT WITH OR THE TERMINATION OF ANY RIGHT, THE LOSS OF ANY BENEFIT OR A
DEFAULT (WITH OR WITHOUT NOTICE AND