ISSUANCE.
(BB)
DIRECTORS' AND OFFICERS' INSURANCE.
THE COMPANY (I) MAINTAINS
DIRECTORS' AND OFFICERS' LIABILITY INSURANCE AND FIDUCIARY LIABILITY INSURANCE
WITH, TO THE KNOWLEDGE OF THE COMPANY, FINANCIALLY SOUND AND REPUTABLE INSURANCE
COMPANIES WITH BENEFITS AND LEVELS OF COVERAGE THAT HAVE BEEN PREVIOUSLY
DISCLOSED, (II) HAS TIMELY PAID ALL PREMIUMS ON SUCH POLICIES AND (III) THERE
HAS BEEN NO LAPSE IN COVERAGE DURING THE TERM OF SUCH POLICIES.
23
(CC)
SECTION 16.
THE BOARD OF DIRECTORS HAS APPROVED THE ISSUANCE AND
SALE OF THE SECURITIES, INCLUDING ANY ACQUISITION PURSUANT TO THE EXERCISE OR
CONVERSION THEREOF, IN THE MANNER REQUIRED TO EXEMPT THE ACQUISITION OF SUCH
SECURITIES FROM SECTION 16(B) OF THE EXCHANGE ACT PURSUANT TO RULE 16B-3
THEREUNDER.
(DD)
FEES AND EXPENSES.
ALL CLOSING FEES AND EXPENSES (INCLUDING ALL
COSTS TO BE INCURRED TO REGISTER THE REGISTRABLE SECURITIES AND TO OBTAIN
STOCKHOLDER APPROVAL OF THE STOCKHOLDER PROPOSALS), THE FEES AND EXPENSES OF ANY
COMPANY ADVISORS (INCLUDING COMPANY COUNSEL AND OTHER PROFESSIONAL FEES), AND
FEES AND EXPENSES OF ANY BROKER OR FINDERS THAT THE COMPANY IS RESPONSIBLE FOR
(INCLUDING THE FEES AND EXPENSES OF THE COMPANY'S SOLE PLACEMENT AGENT, SANDLER
O'NEILL + PARTNERS) ARE NOT EXPECTED TO EXCEED $11,000,000.
(EE)
[INVESTMENT AGREEMENT.
THIS AGREEMENT IS SUBSTANTIALLY IDENTICAL
IN ALL MATERIAL RESPECTS TO THE OTHER INVESTMENT AGREEMENTS ENTERED INTO BETWEEN
THE COMPANY AND THE OTHER INVESTORS PURCHASING SECURITIES AND CLASS B WARRANTS
EXCEPT AS TO (I) THE NUMBER OF SECURITIES TO BE PURCHASED AND THE AGGREGATE
PURCHASE PRICE FOR SUCH SECURITIES (BUT NOT THE PURCHASE PRICE PER SECURITY) SET
FORTH IN SECTION 1.2; (II) PROVISIONS RELATING TO THE REIMBURSEMENT OF THE
INVESTOR'S FEES AND EXPENSES, WHICH DO NOT APPEAR IN ALL INVESTMENT AGREEMENTS
BUT, IN THE INVESTMENT AGREEMENTS WHICH DO CONTAIN SUCH PROVISIONS, ARE IN THE
FORM SET FORTH IN SECTION 3.2 HEREOF AND DIFFER ONLY AS TO THE AMOUNT OF FEES
AND EXPENSES TO BE REIMBURSED; (III) THIS AGREEMENT SHALL NOT PROVIDE FOR THE
PURCHASE BY INVESTOR OF CLASS B WARRANTS; (IV) THE PROVISIONS OF
SECTION 3.3(A) HEREOF PROVIDING THE INVESTOR WITH CONSULTING RIGHTS THAT MAY NOT
APPEAR IN OTHER INVESTMENT AGREEMENTS; (V) ONE INVESTMENT AGREEMENT PROVIDES AS
A CONDITION TO THE OBLIGATIONS OF SUCH INVESTOR AND AS AN OBLIGATION OF THE
COMPANY FOR THE PAYMENT OF THE FEES AND EXPENSES OF SULLIVAN & CROMWELL LLP,
COUNSEL TO SUCH INVESTOR, AND (VI) THAT OTHER INVESTMENT AGREEMENTS MAY NOT
CONTAIN THE PROVISIONS SET FORTH IN SECTIONS 2.2(EE), 3.3, 3.4, 3.5, 4.1, 4.2,
4.3 OR 4.4 HEREOF AND/OR MAY PROVIDE FOR COMMITTEE AND/OR OBSERVER
APPOINTMENTS.] (21)
2.3
Representations and Warranties of the Investor.
Except as
Previously Disclosed, the Investor hereby represents and warrants as of the date
of this Agreement (except to the extent made only as of a specified date, in
which case as of such date), solely with respect to itself and, where expressly
indicated, its Affiliates, to the Company that:
(A)
ORGANIZATION AND AUTHORITY.
THE INVESTOR IS A LIMITED PARTNERSHIP
DULY ORGANIZED, VALIDLY EXISTING, AND IN GOOD STANDING UNDER THE