DOCUMENTS, SUCH
SELLING STOCKHOLDER CONFIRMS THAT, NEITHER HE, SHE OR IT NOR ANY OTHER PERSON
ACTING ON HIS, HER OR ITS BEHALF HAS PROVIDED ANY OF THE PURCHASERS OR THEIR
AGENTS OR COUNSEL WITH ANY INFORMATION THAT CONSTITUTES OR MIGHT CONSTITUTE
MATERIAL, NON-PUBLIC INFORMATION.
SUCH SELLING STOCKHOLDER UNDERSTANDS AND
CONFIRMS THAT THE PURCHASERS WILL RELY ON THE FOREGOING REPRESENTATION IN
EFFECTING TRANSACTIONS IN SECURITIES OF THE COMPANY.
SUCH SELLING STOCKHOLDER
HAS REVIEWED THE REPRESENTATIONS AND WARRANTIES MADE BY THE COMPANY PURSUANT TO
SECTION 3.1 HEREOF AS MODIFIED BY THE DISCLOSURE SCHEDULES AND HEREBY REPRESENTS
AND WARRANTS THAT SUCH SELLING STOCKHOLDER HAS NO ACTUAL KNOWLEDGE OF ANY FACTS
OR CIRCUMSTANCES THAT WOULD MAKE ANY STATEMENTS MADE THEREIN, IN LIGHT OF THE
CIRCUMSTANCES UNDER WHICH THEY WERE MADE, UNTRUE OR MISLEADING IN ANY MATERIAL
RESPECT.
SUCH SELLING STOCKHOLDER ACKNOWLEDGES AND 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 3.3 HEREOF.
(G)
LITIGATION.
THERE IS NO ACTION, SUIT, INQUIRY, NOTICE OF
VIOLATION, PROCEEDING OR INVESTIGATION PENDING AGAINST SUCH SELLING STOCKHOLDER
OR, TO THE KNOWLEDGE OF SUCH SELLING STOCKHOLDER, THREATENED AGAINST OR
AFFECTING THE LEGALITY, VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT WITH
RESPECT TO THE OBLIGATIONS OF SUCH SELLING STOCKHOLDER, AND, TO THE KNOWLEDGE OF
SUCH SELLING STOCKHOLDER, NO EVENT HAS OCCURRED AND NO CONDITION EXISTS THAT
COULD FORM THE BASIS OF ANY SUCH ACTION, SUIT, INQUIRY, NOTICE OF VIOLATION,
PROCEEDING OR INVESTIGATION.
(H)
PRIVATE PLACEMENT. ASSUMING THE ACCURACY OF THE PURCHASERS
REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 3.3, NO REGISTRATION UNDER
THE SECURITIES ACT IS REQUIRED FOR THE OFFER AND SALE OF THE SECURITIES AS
CONTEMPLATED HEREBY.
3.3
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS.
EACH PURCHASER
HEREBY, FOR ITSELF AND FOR NO OTHER PURCHASER, REPRESENTS AND WARRANTS AS OF THE
DATE HEREOF AND AS OF THE CLOSING DATE TO THE COMPANY AND THE SELLING
STOCKHOLDERS AS FOLLOWS:
(A)
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 FULL RIGHT, 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 EXECUTION, DELIVERY AND PERFORMANCE BY SUCH PURCHASER OF THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT HAVE BEEN DULY AUTHORIZED BY ALL
NECESSARY CORPORATE OR SIMILAR ACTION ON THE PART OF SUCH PURCHASER.
EACH
TRANSACTION DOCUMENT TO WHICH IT IS A PARTY HAS BEEN DULY EXECUTED BY SUCH
PURCHASER, AND WHEN DELIVERED BY SUCH PURCHASER IN ACCORDANCE WITH THE TERMS
20
HEREOF, WILL CONSTITUTE THE VALID AND LEGALLY BINDING OBLIGATION OF SUCH
PURCHASER, ENFORCEABLE AGAINST IT IN ACCORDANCE WITH ITS TERMS, EXCEPT (I) AS
LIMITED BY GENERAL EQUITABLE PRINCIPLES AND APPLICABLE BANKRUPTCY, INSOLVENCY,
REORGANIZATION, MORATORIUM AND OTHER LAWS OF GENERAL APPLICATION AFFECTING
ENFORCEMENT OF CREDITORS' RIGHTS GENERALLY, (II) AS LIMITED BY LAWS RELATING TO
THE AVAILABILITY OF SPECIFIC PERFORMANCE,