COMPANY, AND ALL SUCH QUESTIONS HAVE BEEN ANSWERED TO THE REASONABLE
SATISFACTION OF THE UNDERSIGNED AND THE UNDERSIGNED'S ADVISORS, IF ANY.
(K)
THE UNDERSIGNED IS UNAWARE OF, IS IN NO WAY RELYING ON, AND DID
NOT BECOME AWARE OF THE OFFERING OF THE UNITS THROUGH OR AS A RESULT OF, ANY
ARTICLE, NOTICE,
12
ADVERTISEMENT OR OTHER COMMUNICATION PUBLISHED IN ANY NEWSPAPER, MAGAZINE OR
SIMILAR MEDIA OR BROADCAST OVER TELEVISION, RADIO OR OVER THE INTERNET, IN
CONNECTION WITH THE OFFERING AND SALE OF THE UNITS AND IS NOT SUBSCRIBING FOR
UNITS AND DID NOT BECOME AWARE OF THE OFFERING OF THE UNITS THROUGH OR AS A
RESULT OF ANY SEMINAR OR MEETING TO WHICH THE UNDERSIGNED WAS INVITED BY, OR ANY
SOLICITATION OF A SUBSCRIPTION BY, A PERSON NOT PREVIOUSLY KNOWN TO THE
UNDERSIGNED IN CONNECTION WITH INVESTMENTS IN SECURITIES GENERALLY.
(L)
THE UNDERSIGNED HAS NOT ENGAGED ANY PLACEMENT AGENT, FINANCIAL
ADVISOR OR BROKER, WHICH WOULD GIVE RISE TO ANY CLAIM BY ANY PERSON FOR
BROKERAGE COMMISSIONS, FINDERS' FEES OR THE LIKE RELATING TO THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY AND, IN TURN, TO BE PAID TO OTHER SELECTED
DEALERS.
(M)
THE FOREGOING REPRESENTATIONS, WARRANTIES, AND AGREEMENTS SHALL
SURVIVE THE CLOSING.
4.
PUBCO'S REPRESENTATIONS AND WARRANTIES
The Company hereby acknowledges, agrees with and represents and warrants to the
undersigned, as follows (for clarity's sake, all references to the Company in
the representations and warranties set forth in this Section 4 shall refer to
Pubco):
(A)
THE COMPANY AND ITS "SUBSIDIARIES" (WHICH FOR PURPOSES OF THIS
AGREEMENT MEANS ANY ENTITY IN WHICH THE COMPANY, DIRECTLY OR INDIRECTLY, OWNS
CAPITAL STOCK OR HOLDS AN EQUITY OR SIMILAR INTEREST) ARE ENTITIES DULY
ORGANIZED AND VALIDLY EXISTING IN GOOD STANDING UNDER THE LAWS OF THE
JURISDICTION IN WHICH THEY ARE FORMED, AND HAVE THE REQUISITE POWER AND
AUTHORITY TO OWN THEIR PROPERTIES AND TO CARRY ON THEIR BUSINESS AS NOW BEING
CONDUCTED.
(B)
THE COMPANY HAS THE CORPORATE POWER AND AUTHORITY TO EXECUTE AND
DELIVER THIS AGREEMENT AND ISSUE THE UNITS AND TO PERFORM ITS OBLIGATIONS
HEREUNDER.
THIS AGREEMENT HAS BEEN DULY AUTHORIZED, EXECUTED AND DELIVERED BY
THE COMPANY AND IS VALID, BINDING AND ENFORCEABLE AGAINST THE COMPANY IN
ACCORDANCE WITH ITS TERMS, EXCEPT AS SUCH ENFORCEABILITY MAY BE LIMITED BY
GENERAL PRINCIPLES OF EQUITY OR TO APPLICABLE BANKRUPTCY, INSOLVENCY,
REORGANIZATION, MORATORIUM, LIQUIDATION AND OTHER SIMILAR LAWS RELATING TO, OR
AFFECTING GENERALLY, THE ENFORCEMENT OF APPLICABLE CREDITORS' RIGHTS AND
REMEDIES.
(C)
THE COMMON STOCK AND WARRANTS TO BE ISSUED TO THE UNDERSIGNED
PURSUANT TO THIS AGREEMENT, WHEN ISSUED AND DELIVERED IN ACCORDANCE WITH THE
TERMS OF THIS AGREEMENT, WILL BE DULY AND VALIDLY ISSUED AND WILL BE FULLY PAID
AND NONASSESSABLE.
(D)
NEITHER THE EXECUTION AND DELIVERY NOR THE PERFORMANCE OF THIS
AGREEMENT BY THE COMPANY WILL CONFLICT WITH THE COMPANY'S CERTIFICATE OF
INCORPORATION, AS AMENDED, OR BY-LAWS, AS AMENDED, OR RESULT IN A BREACH OF ANY
TERMS OR PROVISIONS OF, OR CONSTITUTE A DEFAULT UNDER, ANY MATERIAL CONTRACT,
AGREEMENT OR INSTRUMENT