VIOLATIONS WHICH WOULD NOT,
INDIVIDUALLY OR IN THE AGGREGATE, REASONABLY BE EXPECTED TO HAVE A MATERIAL
ADVERSE EFFECT ON THE ABILITY OF SUCH BUYER TO PERFORM ITS OBLIGATIONS
HEREUNDER.
(J)
RESIDENCY.
SUCH BUYER IS A RESIDENT OF THAT JURISDICTION
SPECIFIED BELOW ITS ADDRESS ON THE SCHEDULE OF BUYERS.
(K)
INDEPENDENT INVESTMENT DECISION.
SUCH BUYER HAS INDEPENDENTLY
EVALUATED THE MERITS OF ITS DECISION TO PURCHASE SECURITIES PURSUANT TO THE
TRANSACTION DOCUMENTS, AND SUCH BUYER CONFIRMS THAT IT HAS NOT RELIED ON THE
ADVICE OF THE COMPANY NOR ANY OTHER BUYER'S BUSINESS AND/OR LEGAL COUNSEL IN
MAKING SUCH DECISION.
(L)
CERTAIN TRADING ACTIVITIES.
SUCH BUYER HAS NOT DIRECTLY OR
INDIRECTLY, NOR HAS ANY PERSON ACTING ON BEHALF OF OR PURSUANT TO ANY
UNDERSTANDING WITH SUCH BUYER, ENGAGED IN ANY TRANSACTIONS IN THE SECURITIES OF
THE COMPANY (INCLUDING, WITHOUT LIMITATIONS, ANY SHORT SALES INVOLVING THE
COMPANY'S SECURITIES) SINCE THE EARLIER OF (I) THE TIME THAT SUCH BUYER WAS
FIRST CONTACTED BY THE COMPANY REGARDING THE TRANSACTIONS CONTEMPLATED HEREBY
AND (II) TWENTY (20) CALENDAR DAYS PRIOR TO THE DATE HEREOF.
SUCH BUYER
COVENANTS THAT NEITHER IT NOR ANY PERSON ACTING ON ITS BEHALF OR PURSUANT TO ANY
UNDERSTANDING WITH IT WILL ENGAGE IN ANY TRANSACTIONS IN THE SECURITIES OF THE
COMPANY (INCLUDING SHORT SALES) PRIOR TO THE TIME THAT THE TRANSACTIONS
5
CONTEMPLATED BY THIS AGREEMENT ARE PUBLICLY DISCLOSED.
FOR THE PURPOSE OF THIS
AGREEMENT, "SHORT SALES" INCLUDE, WITHOUT LIMITATION, ALL "SHORT SALES" AS
DEFINED IN RULE 200 PROMULGATED UNDER REGULATION SHO UNDER THE 1934 ACT AND ALL
TYPES OF DIRECT AND INDIRECT STOCK PLEDGES, FORWARD SALE CONTRACTS, OPTIONS,
PUTS, CALLS, SWAPS AND SIMILAR ARRANGEMENTS (INCLUDING ON A TOTAL RETURN BASIS),
AND SALES AND OTHER TRANSACTIONS THROUGH NON-US BROKER DEALERS OR FOREIGN
REGULATED BROKERS.
(M)
GENERAL SOLICITATION.
SUCH BUYER IS NOT PURCHASING THE SECURITIES
AS A RESULT OF ANY ADVERTISEMENT, ARTICLE, NOTICE OR OTHER COMMUNICATION
REGARDING THE SECURITIES PUBLISHED IN ANY NEWSPAPER, MAGAZINE OR SIMILAR MEDIA
OR BROADCAST OVER TELEVISION OR RADIO OR PRESENTED AT ANY SEMINAR.
(N)
ORGANIZATION.
SUCH BUYER 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 APPLICABLE
TRANSACTION DOCUMENTS (AS DEFINED BELOW) AND OTHERWISE TO CARRY OUT ITS
OBLIGATIONS THEREUNDER.
3.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to each of the Buyers that:
(A)
ORGANIZATION AND QUALIFICATION.
THE COMPANY AND ITS
"SUBSIDIARIES" (WHICH FOR PURPOSES OF THIS AGREEMENT MEANS ANY JOINT VENTURE OR
ANY ENTITY (I) IN WHICH THE COMPANY, DIRECTLY OR INDIRECTLY, OWNS 50% OR MORE OF
THE OUTSTANDING CAPITAL STOCK OR HOLDS AN EQUITY OR SIMILAR INTEREST
REPRESENTING 50% OR MORE OF THE OUTSTANDING EQUITY OR SIMILAR INTEREST OF SUCH
ENTITY, (II) THAT IS A SIGNIFICANT SUBSIDIARY OF THE COMPANY AS DEFINED UNDER
REGULATION S-X OF THE 1934 ACT OR (III) IN WHICH THE COMPANY CONTROLS OR
OPERATES ALL OR PART