OF WHICH THE COMPANY WAS THE COMMON PARENT; AND
(IX) NO CLOSING AGREEMENTS, PRIVATE LETTER RULINGS, TECHNICAL ADVANCE MEMORANDA
OR SIMILAR AGREEMENT OR RULINGS HAVE BEEN ENTERED INTO OR ISSUED BY ANY TAXING
AUTHORITY WITH RESPECT TO THE COMPANY OR ANY OF ITS SUBSIDIARIES.
SECTION 3.10.
NO MATERIAL ADVERSE
CHANGE.
SINCE MARCH 31, 2009, AND EXCEPT AS DISCLOSED IN THE COMPANY'S ANNUAL
REPORT ON FORM 10-K FOR THE YEAR ENDED DECEMBER 31, 2008 OR ANY EXCHANGE ACT
FILINGS MADE BY THE COMPANY SINCE DECEMBER 31, 2008 AND EXCEPT AS CONTEMPLATED
BY THE TRANSACTION AGREEMENT, NO EVENT, CIRCUMSTANCE OR CHANGE HAS OCCURRED THAT
HAS CAUSED OR EVIDENCES, EITHER IN ANY CASE OR IN THE AGGREGATE, A MATERIAL
ADVERSE EFFECT WITH RESPECT TO THE COMPANY AND ITS SUBSIDIARIES, TAKEN AS A
WHOLE.
SECTION 3.11.
INVESTMENT COMPANY
ACT.
NEITHER THE COMPANY NOR ANY SUBSIDIARY IS AN "INVESTMENT COMPANY" OR A
COMPANY "CONTROLLED" BY AN "INVESTMENT COMPANY", WITHIN THE MEANING OF THE
INVESTMENT COMPANY ACT OF 1940.
SECTION 3.12.
SOLVENCY.
THE
COMPANY AND ITS SUBSIDIARIES, ON A CONSOLIDATED BASIS, ARE SOLVENT.
SECTION 3.13.
NYSE LISTING.
THE
OUTSTANDING SHARES OF COMMON STOCK ARE LISTED ON THE NYSE AND THE SHARES WILL,
UPON ISSUANCE, BE LISTED ON THE NYSE.
SECTION 3.14.
SHARE REGISTER.
AT
ALL MATERIAL TIMES, THE REGISTER OF OWNERSHIP OF THE SHARES OF THE COMPANY IS
AND WILL BE SITUATED IN THE UNITED STATES.
15
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF THE INVESTOR
As an inducement to the Company to enter into the Agreement, the Investor hereby
represents and warrants to the Company as of the date hereof as follows:
SECTION 4.01.
ORGANIZATION AND
AUTHORITY OF THE INVESTOR.
(A)
THE INVESTOR IS DULY ORGANIZED, VALIDLY EXISTING,
AND IN GOOD STANDING UNDER THE LAWS OF THE JURISDICTION OF ITS FORMATION, HAS
ALL POWER AND AUTHORITY TO CARRY ON ITS BUSINESS AS NOW BEING CONDUCTED AND TO
OWN ITS PROPERTIES AND IS DULY LICENSED OR QUALIFIED AND IN GOOD STANDING IN
EACH OTHER JURISDICTION IN WHICH ITS PROPERTIES ARE LOCATED OR IN WHICH FAILURE
TO QUALIFY WOULD MATERIALLY AND ADVERSELY AFFECT THE CONDUCT OF ITS BUSINESS.
(B)
THE EXECUTION, DELIVERY AND PERFORMANCE BY THE
INVESTOR OF THIS AGREEMENT AND THE REGISTRATION RIGHTS AGREEMENT ARE WITHIN THE
INVESTOR'S CORPORATE POWER AND HAVE BEEN DULY AUTHORIZED BY ALL NECESSARY
CORPORATE ACTION.
(C)
THIS AGREEMENT AND UPON ITS EXECUTION, THE
REGISTRATION RIGHTS AGREEMENT, CONSTITUTE VALID AND BINDING OBLIGATIONS OF THE
INVESTOR, ENFORCEABLE AGAINST THE INVESTOR IN ACCORDANCE WITH THEIR TERMS,
EXCEPT TO THE EXTENT ENFORCEABILITY MAY BE LIMITED BY ANY ENFORCEMENT
LIMITATION.
SECTION 4.02.
NO CONFLICT.
AS OF
THE DATE HEREOF (ASSUMING THAT ANY APPLICABLE WAITING PERIOD UNDER THE HSR ACT
HAS EXPIRED OR BEEN TERMINATED) THE EXECUTION AND DELIVERY OF THIS AGREEMENT AND
THE REGISTRATION RIGHTS AGREEMENT BY THE INVESTOR DO NOT, AND AS OF THE CLOSING
DATE THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT AND THE
REGISTRATION RIGHTS AGREEMENT BY THE INVESTOR DO NOT AND WILL NOT CONTRAVENE, OR
CONSTITUTE A DEFAULT UNDER, ANY PROVISION