INFORMATION EXISTS WITH RESPECT TO THE COMPANY OR ANY SUBSIDIARY OR EITHER OF
ITS OR THEIR RESPECTIVE BUSINESS, PROPERTIES, PROSPECTS, OPERATIONS OR FINANCIAL
CONDITIONS, WHICH, UNDER APPLICABLE LAW, RULE OR REGULATION, REQUIRES PUBLIC
DISCLOSURE OR ANNOUNCEMENT BY THE COMPANY BUT WHICH HAS NOT BEEN SO PUBLICLY
ANNOUNCED OR DISCLOSED (ASSUMING FOR THIS PURPOSE THAT THE COMPANY'S REPORTS
FILED UNDER THE EXCHANGE ACT ARE BEING INCORPORATED INTO AN EFFECTIVE
REGISTRATION STATEMENT FILED BY THE COMPANY UNDER THE SECURITIES ACT).
(I)
EQUITY CAPITALIZATION.
AS OF THE DATE HEREOF AND AS OF THE
CLOSING, THE AUTHORIZED CAPITAL STOCK OF THE COMPANY CONSISTS SOLELY OF
(I) 200,000,000 SHARES OF COMMON STOCK, OF WHICH 52,412,695 INCLUDING 2,500,000
SHARES HELD IN TREASURY ARE ISSUED AND 49,912,695 ARE OUTSTANDING AND 31,798,349
ARE RESERVED FOR ISSUANCE PURSUANT TO SECURITIES EXERCISABLE OR EXCHANGEABLE
FOR, OR CONVERTIBLE INTO, SHARES OF COMMON STOCK AND (II) 5,000,000 SHARES OF
PREFERRED STOCK, OF WHICH 26,500 ARE ISSUED AND OUTSTANDING.
(J)
LIMITATION ON INVESTORS REPRESENTATIONS.
THE COMPANY
ACKNOWLEDGES AND AGREES THAT NO INVESTOR HAS MADE OR MAKES ANY REPRESENTATIONS
OR WARRANTIES WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED HEREBY OTHER THAN
THOSE SPECIFICALLY SET FORTH IN SECTION 3.2.
3.2
Representations and Warranties of the Investors.
Each Investor
hereby, for itself and for no other Investor, represents and warrants to the
Company and the Selling Stockholders as follows:
(A)
ORGANIZATION; AUTHORITY.
SUCH INVESTOR 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 THEREUNDER. THE EXECUTION, DELIVERY AND PERFORMANCE BY SUCH INVESTOR
OF THE TRANSACTIONS CONTEMPLATED BY THE TRANSACTION DOCUMENTS HAVE BEEN DULY
AUTHORIZED BY ALL NECESSARY CORPORATE OR, IF SUCH INVESTOR IS NOT A CORPORATION,
SUCH PARTNERSHIP, LIMITED LIABILITY COMPANY OR OTHER APPLICABLE LIKE ACTION, ON
THE PART OF SUCH INVESTOR. EACH OF THIS AGREEMENT
8
and the Registration Rights Agreement has been duly executed by such Investor,
and when delivered by such Investor in accordance with the terms hereof, will
constitute the valid and legally binding obligation of such Investor,
enforceable against it in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or
affecting generally the enforcement of, creditors' rights and remedies or by
other equitable principles of general application.
(B)
INVESTMENT INTENT.
SUCH INVESTOR IS ACQUIRING THE SELLING
STOCKHOLDER SHARES, WARRANTS AND CONVERSION SHARES AS PRINCIPAL FOR ITS OWN
ACCOUNT FOR INVESTMENT PURPOSES ONLY AND NOT WITH A VIEW TO OR FOR DISTRIBUTING
OR RESELLING SUCH SELLING STOCKHOLDER SHARES, WARRANTS AND CONVERSION SHARES OR
ANY PART THEREOF, WITHOUT PREJUDICE, HOWEVER, TO SUCH INVESTOR'S RIGHT AT ALL
TIMES TO SELL OR OTHERWISE DISPOSE OF ALL OR ANY PART OF SUCH SECURITIES IN
COMPLIANCE WITH APPLICABLE FEDERAL AND STATE SECURITIES LAWS. SUBJECT TO THE
IMMEDIATELY PRECEDING SENTENCE, NOTHING CONTAINED HEREIN