OF PURCHASER
PROVIDED TO THE COMPANY AT LEAST FIVE (5) BUSINESS DAYS IN ADVANCE OF THE
CLOSING DATE, FREE AND CLEAR OF ANY LIENS OR OTHER ENCUMBRANCES (OTHER THAN
THOSE PLACED THEREON BY OR ON BEHALF OF ANY PURCHASER) AND SUBJECT TO ANY
RESTRICTIONS ON RESALE IN ACCORDANCE WITH APPLICABLE LAW PRIOR TO THE
EFFECTIVENESS OF ANY REGISTRATION STATEMENT REGISTERING SUCH RESALE, AND
PURCHASER WILL MAKE PAYMENT TO THE COMPANY OF THE PURCHASE PRICE, BY WIRE
TRANSFER OF IMMEDIATELY AVAILABLE FUNDS TO AN ACCOUNT DESIGNATED BY THE COMPANY
AND SET FORTH IN SCHEDULE 2.2(A) HERETO.
PURCHASER AND THE COMPANY SHALL
EXECUTE A CROSS RECEIPT ACKNOWLEDGING RECEIPT OF THE SHARES AND THE PURCHASE
PRICE, RESPECTIVELY.
2.3
ANTI-DILUTION.
IF, BETWEEN THE DATE OF THIS AGREEMENT AND THE
CLOSING DATE, THE OUTSTANDING SHARES OF COMPANY COMMON STOCK SHALL HAVE BEEN
CHANGED INTO OR EXCHANGED FOR A DIFFERENT NUMBER OR KIND OF SHARES OR SECURITIES
AS A RESULT OF ANY REORGANIZATION, RECAPITALIZATION, RECLASSIFICATION, STOCK
DIVIDEND, STOCK SPLIT, REVERSE STOCK SPLIT OR OTHER SUBSTANTIALLY SIMILAR
TRANSACTION, AN APPROPRIATE AND PROPORTIONATE ADJUSTMENT SHALL BE MADE TO THE
NUMBER OF SHARES AND THE PURCHASE PRICE, AS THE CASE MAY BE, FOR THE SHARES.
SECTION 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as disclosed in reasonable detail in the Company Reports (as defined
below) furnished or filed prior to the date of this Agreement (excluding any
risk factor disclosures contained in such documents under the heading "Risk
Factors" and any disclosures of risks included in any "forward-looking
statements" disclaimer or other statements made that are similarly non-specific
and are predictive or forward-looking in nature), the Company hereby represents
and warrants to Purchaser as follows:
3.1
ORGANIZATION AND STANDING.
(A) THE COMPANY IS A CORPORATION DULY
ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE STATE OF
DELAWARE.
THE COMPANY IS DULY QUALIFIED TO DO BUSINESS AND IS IN GOOD STANDING
AS A FOREIGN CORPORATION IN EACH JURISDICTION WHERE THE OWNERSHIP OR OPERATION
OF ITS ASSETS OR PROPERTIES OR CONDUCT OF ITS BUSINESS REQUIRES SUCH
QUALIFICATION, EXCEPT WHERE THE FAILURE TO BE SO QUALIFIED OR IN GOOD STANDING
IS NOT REASONABLY LIKELY TO HAVE, INDIVIDUALLY OR IN THE AGGREGATE, A MATERIAL
ADVERSE EFFECT (AS DEFINED BELOW). AS USED IN THIS AGREEMENT, A "MATERIAL
ADVERSE EFFECT" MEANS ANY EFFECT, CIRCUMSTANCE, OCCURRENCE OR CHANGE THAT IS
MATERIAL AND ADVERSE TO THE BUSINESS, ASSETS, RESULTS OF OPERATIONS OR FINANCIAL
CONDITION OF THE COMPANY AND COMPANY SUBSIDIARIES (AS DEFINED BELOW), TAKEN AS A
WHOLE; PROVIDED, HOWEVER, THAT MATERIAL ADVERSE EFFECT SHALL NOT BE DEEMED TO
INCLUDE (A) ANY EFFECTS, CIRCUMSTANCES, OCCURRENCES OR CHANGES GENERALLY
AFFECTING THE COMMERCIAL BANKING INDUSTRY, THE ECONOMY, OR THE FINANCIAL, REAL
ESTATE, SECURITIES OR CREDIT MARKETS IN THE UNITED STATES OR
2
ELSEWHERE IN THE WORLD, INCLUDING EFFECTS ON SUCH INDUSTRY, ECONOMY OR MARKETS
RESULTING FROM ANY REGULATORY OR POLITICAL CONDITIONS OR DEVELOPMENTS, OR ANY
OUTBREAK OR ESCALATION OF HOSTILITIES, DECLARED OR UNDECLARED ACTS OF WAR OR
TERRORISM, (B) CHANGES OR PROPOSED CHANGES IN