THEIR OBLIGATIONS OR EXERCISING THEIR RIGHTS UNDER THE
TRANSACTION DOCUMENTS, INCLUDING WITHOUT LIMITATION AS A RESULT OF THE COMPANY'S
ISSUANCE OF THE SECURITIES AND THE PURCHASERS' OWNERSHIP OF THE SECURITIES.
(Y)
DISCLOSURE.
THE COMPANY CONFIRMS THAT NEITHER IT NOR ANY OTHER
PERSON ACTING ON ITS BEHALF HAS PROVIDED ANY OF THE PURCHASERS OR THEIR AGENTS
OR COUNSEL WITH ANY INFORMATION THAT CONSTITUTES OR MIGHT CONSTITUTE MATERIAL,
NONPUBLIC INFORMATION.
THE COMPANY UNDERSTANDS AND CONFIRMS THAT EACH PURCHASER
WILL RELY ON THE FOREGOING REPRESENTATIONS AND COVENANTS IN EFFECTING
TRANSACTIONS IN SECURITIES OF THE COMPANY.
ALL DISCLOSURE PROVIDED TO THE
PURCHASERS REGARDING THE COMPANY, ITS SUBSIDIARIES, ITS BUSINESS AND THE
TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING THE DISCLOSURE SCHEDULES TO THIS
AGREEMENT, FURNISHED BY OR ON BEHALF OF THE COMPANY WITH RESPECT TO THE
REPRESENTATIONS AND WARRANTIES MADE HEREIN ARE TRUE AND CORRECT WITH RESPECT TO
SUCH REPRESENTATIONS AND WARRANTIES AND DO NOT CONTAIN ANY UNTRUE STATEMENT OF A
MATERIAL FACT OR OMIT TO STATE ANY MATERIAL FACT NECESSARY IN ORDER TO MAKE THE
STATEMENTS MADE THEREIN, IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE
MADE, NOT MISLEADING. THE COMPANY ACKNOWLEDGES AND
14
AGREES THAT NO PURCHASER MAKES OR HAS MADE ANY REPRESENTATIONS OR WARRANTIES
WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED HEREBY OTHER THAN THOSE
SPECIFICALLY SET FORTH IN SECTION 3.2 HEREOF.
(Z)
NO INTEGRATED OFFERING.
ASSUMING THE ACCURACY OF THE PURCHASER'S
REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 3.2, AND EXCEPT FOR THE
TRANSACTIONS RELATED TO THE PREFERRED STOCK OFFERING, NEITHER THE COMPANY, NOR
ANY OF ITS SUBSIDIARIES OR AFFILIATES, NOR ANY PERSON ACTING ON ITS OR THEIR
BEHALF HAS, DIRECTLY OR INDIRECTLY, MADE ANY OFFERS OR SALES OF ANY SECURITY OR
SOLICITED ANY OFFERS TO BUY ANY SECURITY, UNDER CIRCUMSTANCES THAT WOULD CAUSE
THIS OFFERING OF THE SECURITIES TO BE INTEGRATED WITH PRIOR OFFERINGS BY THE
COMPANY OR ITS SUBSIDIARIES FOR PURPOSES OF THE SECURITIES ACT OR ANY APPLICABLE
SHAREHOLDER APPROVAL PROVISIONS, INCLUDING, WITHOUT LIMITATION, UNDER THE RULES
AND REGULATIONS OF ANY EXCHANGE OR AUTOMATED QUOTATION SYSTEM ON WHICH ANY OF
THE SECURITIES OF THE COMPANY ARE LISTED OR DESIGNATED.
(AA)
SOLVENCY.
FOR PURPOSES OF THIS REPRESENTATION, THE TERM "COMPANY"
SHALL INCLUDE ALL OF ITS SUBSIDIARIES.
BASED ON THE FINANCIAL CONDITION OF THE
COMPANY AS OF THE CLOSING DATE AFTER GIVING EFFECT TO THE RECEIPT BY THE COMPANY
OF THE PROCEEDS FROM THE SALE OF THE SECURITIES HEREUNDER AND THE APPLICATION OF
THE PROCEEDS THEREOF, (I) THE COMPANY'S FAIR SALEABLE VALUE OF ITS ASSETS
EXCEEDS THE AMOUNT THAT WILL BE REQUIRED TO BE PAID ON OR IN RESPECT OF THE
COMPANY'S EXISTING DEBTS AND OTHER LIABILITIES (INCLUDING KNOWN CONTINGENT
LIABILITIES) AS THEY MATURE; (II) THE COMPANY'S ASSETS DO NOT CONSTITUTE
UNREASONABLY SMALL CAPITAL TO CARRY ON ITS BUSINESS FOR THE CURRENT FISCAL YEAR
AS NOW CONDUCTED AND AS PROPOSED TO BE CONDUCTED INCLUDING ITS CAPITAL NEEDS
TAKING INTO ACCOUNT THE PARTICULAR CAPITAL REQUIREMENTS OF THE BUSINESS
CONDUCTED BY THE COMPANY, AND PROJECTED CAPITAL REQUIREMENTS AND CAPITAL
AVAILABILITY THEREOF; AND (III) THE