SUCH CHANGES OR OCCURRENCES
HAVE OR WOULD REASONABLY BE EXPECTED TO HAVE A MATERIALLY DISPROPORTIONATE
ADVERSE EFFECT ON THE COMPANY AND ITS CONSOLIDATED SUBSIDIARIES TAKEN AS A WHOLE
RELATIVE TO COMPARABLE U.S. BANKING OR FINANCIAL SERVICES ORGANIZATIONS); OR
(II) THE ABILITY OF THE COMPANY TO CONSUMMATE THE PURCHASE AND OTHER
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND THE WARRANT AND PERFORM ITS
OBLIGATIONS HEREUNDER OR THEREUNDER ON A TIMELY BASIS.
(C)
"PREVIOUSLY DISCLOSED" MEANS INFORMATION SET
FORTH ON THE DISCLOSURE SCHEDULE, PROVIDED, HOWEVER, THAT DISCLOSURE IN ANY
SECTION OF SUCH DISCLOSURE SCHEDULE SHALL APPLY ONLY TO THE INDICATED SECTION OF
THIS AGREEMENT EXCEPT TO THE EXTENT THAT IT IS REASONABLY APPARENT FROM THE FACE
OF SUCH DISCLOSURE THAT SUCH DISCLOSURE IS RELEVANT TO ANOTHER SECTION OF THIS
AGREEMENT.
2.2
Representations and Warranties of the
Company. Except as Previously Disclosed, the Company represents and warrants to
the Investor that as of the Signing Date and as of the Closing Date (or such
other date specified herein):
(A)
ORGANIZATION, AUTHORITY AND SIGNIFICANT
SUBSIDIARIES. THE COMPANY HAS BEEN DULY INCORPORATED AND IS VALIDLY EXISTING AND
IN GOOD STANDING UNDER THE LAWS OF ITS JURISDICTION OF ORGANIZATION, WITH THE
NECESSARY POWER AND AUTHORITY TO OWN ITS PROPERTIES AND CONDUCT ITS BUSINESS IN
ALL MATERIAL RESPECTS AS CURRENTLY CONDUCTED, AND EXCEPT AS HAS NOT,
INDIVIDUALLY OR IN THE AGGREGATE, HAD AND WOULD NOT REASONABLY BE EXPECTED TO
HAVE A COMPANY MATERIAL ADVERSE EFFECT, HAS BEEN DULY QUALIFIED AS A FOREIGN
CORPORATION FOR THE TRANSACTION OF BUSINESS AND IS IN GOOD STANDING UNDER THE
LAWS OF EACH OTHER JURISDICTION IN WHICH IT OWNS OR LEASES PROPERTIES OR
CONDUCTS ANY BUSINESS SO AS TO REQUIRE SUCH QUALIFICATION; EACH SUBSIDIARY OF
THE COMPANY THAT WOULD BE CONSIDERED A "SIGNIFICANT SUBSIDIARY" WITHIN THE
MEANING OF RULE 1-02(W) OF REGULATION S-X UNDER THE SECURITIES ACT OF 1933 (THE
"SECURITIES ACT"), HAS BEEN DULY ORGANIZED AND IS VALIDLY EXISTING IN GOOD
STANDING UNDER THE LAWS OF ITS JURISDICTION OF ORGANIZATION.
THE CHARTER AND
BYLAWS OF THE COMPANY, COPIES OF WHICH HAVE BEEN PROVIDED TO THE INVESTOR PRIOR
TO THE SIGNING DATE, ARE TRUE, COMPLETE AND CORRECT COPIES OF SUCH DOCUMENTS AS
IN FULL FORCE AND EFFECT AS OF THE SIGNING DATE.
(B)
CAPITALIZATION. THE AUTHORIZED CAPITAL STOCK
OF THE COMPANY, AND THE OUTSTANDING CAPITAL STOCK OF THE COMPANY (INCLUDING
SECURITIES CONVERTIBLE INTO, OR EXERCISABLE OR EXCHANGEABLE FOR, CAPITAL STOCK
OF THE COMPANY) AS OF THE MOST RECENT FISCAL MONTH-END PRECEDING THE SIGNING
DATE (THE "CAPITALIZATION DATE") IS SET FORTH ON SCHEDULE B.
THE OUTSTANDING
SHARES OF CAPITAL STOCK OF THE COMPANY HAVE BEEN DULY AUTHORIZED AND ARE VALIDLY
ISSUED AND OUTSTANDING, FULLY PAID AND NONASSESSABLE, AND SUBJECT TO NO
PREEMPTIVE RIGHTS (AND WERE NOT ISSUED IN VIOLATION OF ANY PREEMPTIVE RIGHTS).
AS OF THE SIGNING DATE, THE COMPANY DOES NOT HAVE OUTSTANDING ANY SECURITIES OR
OTHER OBLIGATIONS PROVIDING THE HOLDER THE RIGHT TO
5
ACQUIRE ITS COMMON STOCK ("COMMON STOCK") THAT IS NOT RESERVED FOR ISSUANCE AS
SPECIFIED ON SCHEDULE B,