INDIVIDUALS OR ENTITIES ("PERSON") OF SHARES OF CAPITAL STOCK OF THE
PURCHASER (EITHER THROUGH A NEGOTIATED STOCK PURCHASE OR A TENDER
2
FOR SUCH SHARES), THE EFFECT OF WHICH IS THAT SUCH PERSON THAT DID NOT
BENEFICIALLY OWN A MAJORITY OF THE VOTING POWER OF THE OUTSTANDING SHARES OF
CAPITAL STOCK OF THE PURCHASER IMMEDIATELY PRIOR TO SUCH PURCHASE BENEFICIALLY
OWNS AT LEAST A MAJORITY OF SUCH VOTING POWER IMMEDIATELY AFTER SUCH PURCHASE.
2.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Purchaser that the following
representations are true and complete at and as of the Effective Date and the
Closing.
For purposes of these representations and warranties (other than those
in Sections 2.2, 2.5, 2.6, 2.7 and 2.9), the term "Company" shall include any
subsidiaries of the Company, unless otherwise expressly noted herein.
2.1.
ORGANIZATION, GOOD STANDING, CORPORATE POWER AND QUALIFICATION.
THE COMPANY IS A CORPORATION DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD
STANDING UNDER THE LAWS OF THE STATE OF OREGON AND HAS ALL REQUISITE CORPORATE
POWER AND AUTHORITY TO CARRY ON ITS BUSINESS AS PRESENTLY CONDUCTED AND AS
PROPOSED TO BE CONDUCTED.
THE COMPANY IS QUALIFIED TO DO BUSINESS AS A FOREIGN
CORPORATION AND IS IN GOOD STANDING IN EACH STATE OR JURISDICTION WHERE SUCH
QUALIFICATION IS NECESSARY BECAUSE OF THE BUSINESS IT CONDUCTS, EXCEPT WHERE
SUCH FAILURE TO QUALIFY WOULD NOT HAVE, AND WOULD NOT BE REASONABLY EXPECTED TO
HAVE, A MATERIAL ADVERSE EFFECT ON THE BUSINESS, ASSETS (INCLUDING INTANGIBLE
ASSETS), LIABILITIES, FINANCIAL CONDITION, RESULTS OF OPERATIONS, OR PROSPECTS
OF THE COMPANY ("MATERIAL ADVERSE EFFECT").
2.2.
AUTHORIZATION.
ALL CORPORATE ACTION REQUIRED TO BE TAKEN BY THE
COMPANY'S BOARD OF DIRECTORS AND STOCKHOLDERS IN ORDER TO AUTHORIZE THE COMPANY
TO ENTER INTO THIS AGREEMENT, TO ISSUE THE SHARES AT THE CLOSING, TO REGISTER
THE SHARES UNDER THE SECURITIES ACT, AND TO LIST THE SHARES ON NASDAQ HAS BEEN
TAKEN OR WILL BE TAKEN PRIOR TO THE CLOSING.
ALL ACTION ON THE PART OF THE
OFFICERS OF THE COMPANY NECESSARY FOR THE EXECUTION AND DELIVERY OF THIS
AGREEMENT, THE PERFORMANCE OF ALL OBLIGATIONS OF THE COMPANY UNDER THIS
AGREEMENT TO BE PERFORMED AS OF THE CLOSING, AND THE ISSUANCE AND DELIVERY OF
THE SHARES HAS BEEN TAKEN OR WILL BE TAKEN PRIOR TO THE CLOSING.
THIS
AGREEMENT, WHEN EXECUTED AND DELIVERED BY THE COMPANY, SHALL CONSTITUTE VALID
AND LEGALLY BINDING OBLIGATIONS OF THE COMPANY, ENFORCEABLE AGAINST THE COMPANY
IN ACCORDANCE WITH ITS RESPECTIVE TERMS EXCEPT (I) AS LIMITED BY APPLICABLE
BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM, FRAUDULENT CONVEYANCE, OR
OTHER LAWS OF GENERAL APPLICATION RELATING TO OR AFFECTING THE ENFORCEMENT OF
CREDITORS' RIGHTS GENERALLY, (II) AS LIMITED BY LAWS RELATING TO THE
AVAILABILITY OF SPECIFIC PERFORMANCE, INJUNCTIVE RELIEF, OR OTHER EQUITABLE
REMEDIES, OR (III) TO THE EXTENT THE INDEMNIFICATION PROVISIONS CONTAINED IN
THIS AGREEMENT MAY BE LIMITED BY APPLICABLE FEDERAL OR STATE SECURITIES LAWS.
2.3.
COMPLIANCE WITH LAWS AND OTHER INSTRUMENTS.
THE COMPANY IS NOT IN
VIOLATION OR DEFAULT (I) OF ANY PROVISION