WITH RESPECT TO A PARTICULAR DATE, THAT ON SUCH DATE, (I)
THE FAIR MARKET VALUE OF THE TOTAL ASSETS OF EACH OF THE COMPANY AND ITS
SUBSIDIARIES EXCEEDS THEIR RESPECTIVE TOTAL LIABILITIES (INCLUDING, WITHOUT
LIMITATION, STATED LIABILITIES AND CONTINGENT LIABILITIES), AND (II) THE COMPANY
AND EACH OF ITS SUBSIDIARIES IS CURRENTLY ABLE TO DISCHARGE ITS DEBTS AS THEY
COME DUE OR MATURE.
NONE OF THE COMPANY NOR ANY OF ITS "SIGNIFICANT
SUBSIDIARIES" HAS TAKEN ANY STEPS, AND DOES NOT CURRENTLY EXPECT TO TAKE ANY
STEPS, TO SEEK PROTECTION PURSUANT TO ANY BANKRUPTCY, INSOLVENCY, DEBTOR RELIEF,
REORGANIZATION OR SIMILAR LAW, NOR DOES THE COMPANY HAVE ANY KNOWLEDGE OR REASON
TO BELIEVE THAT CREDITORS OF THE COMPANY AND ITS SUBSIDIARIES HAVE INITIATED OR
INTEND TO INITIATE INVOLUNTARY BANKRUPTCY OR SIMILAR PROCEEDINGS.
INTERNAL ACCOUNTING CONTROLS.
THE COMPANY AND THE SUBSIDIARIES MAINTAIN A
SYSTEM OF INTERNAL ACCOUNTING CONTROLS SUFFICIENT TO PROVIDE REASONABLE
ASSURANCE THAT (I) TRANSACTIONS ARE EXECUTED IN ACCORDANCE WITH MANAGEMENT'S
GENERAL OR SPECIFIC AUTHORIZATIONS, (II) TRANSACTIONS ARE RECORDED AS NECESSARY
TO PERMIT PREPARATION OF FINANCIAL STATEMENTS IN CONFORMITY WITH GENERALLY
ACCEPTED ACCOUNTING PRINCIPLES AND TO MAINTAIN ASSET ACCOUNTABILITY, (III)
ACCESS TO ASSETS IS PERMITTED ONLY IN ACCORDANCE WITH MANAGEMENT'S GENERAL OR
SPECIFIC AUTHORIZATION, AND (IV) THE RECORDED ACCOUNTABILITY FOR ASSETS IS
COMPARED WITH THE EXISTING ASSETS AT REASONABLE INTERVALS AND APPROPRIATE ACTION
IS TAKEN WITH RESPECT TO ANY DIFFERENCES.
(z)
Sarbanes-Oxley Act. The Company is in compliance with applicable
requirements of the Sarbanes-Oxley Act of 2002 and applicable rules and
regulations promulgated by the Commission thereunder in effect as of the date of
this Agreement, except
11
where such noncompliance could not be reasonably expected to have, individually
or in the aggregate, a Material Adverse Effect.
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS.
EACH PURCHASER HEREBY, AS TO
ITSELF ONLY AND FOR NO OTHER PURCHASER, REPRESENTS AND WARRANTS TO THE COMPANY
AS FOLLOWS:
ORGANIZATION; AUTHORITY.
SUCH PURCHASER IS AN ENTITY DULY ORGANIZED, VALIDLY
EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE JURISDICTION OF ITS
ORGANIZATION WITH THE REQUISITE [CORPORATE OR PARTNERSHIP] POWER AND AUTHORITY
TO ENTER INTO AND TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THE TRANSACTION
DOCUMENTS AND OTHERWISE TO CARRY OUT ITS OBLIGATIONS HEREUNDER AND THEREUNDER.
THE PURCHASE BY SUCH PURCHASER OF THE SHARES AND THE WARRANTS HEREUNDER HAS BEEN
DULY AUTHORIZED BY ALL NECESSARY ACTION ON THE PART OF SUCH PURCHASER.
THIS
AGREEMENT HAS BEEN DULY EXECUTED AND DELIVERED BY SUCH PURCHASER AND CONSTITUTES
THE VALID AND BINDING OBLIGATION OF SUCH PURCHASER, ENFORCEABLE AGAINST IT IN
ACCORDANCE WITH ITS TERMS.
INVESTMENT INTENT.
SUCH PURCHASER IS ACQUIRING THE SECURITIES AS PRINCIPAL FOR
INVESTMENT PURPOSES ONLY AND NOT WITH A VIEW TO OR FOR DISTRIBUTING OR RESELLING
SUCH SECURITIES OR ANY PART THEREOF, WITHOUT PREJUDICE, HOWEVER, TO SUCH
PURCHASER'S RIGHT, SUBJECT TO THE PROVISIONS OF THIS AGREEMENT, AT ALL TIMES TO
SELL OR OTHERWISE DISPOSE OF ALL OR ANY PART OF SUCH SECURITIES PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR UNDER AN EXEMPTION
FROM SUCH REGISTRATION