OF ANY APPLICABLE BANKRUPTCY, INSOLVENCY,
REORGANIZATION OR SIMILAR LAWS OR COURT DECISIONS AFFECTING ENFORCEMENT OF
CREDITORS' RIGHTS GENERALLY AND EXCEPT AS ENFORCEMENT HEREOF IS SUBJECT TO
GENERAL PRINCIPLES OF EQUITY (REGARDLESS OF WHETHER ENFORCEMENT IS CONSIDERED IN
A PROCEEDING IN EQUITY OR AT LAW).
(4)
THE INVESTOR SHARES HAVE BEEN DULY
AUTHORIZED BY THE COMPANY, AND WHEN ISSUED AND DELIVERED BY THE COMPANY AGAINST
PAYMENT THEREFOR AS CONTEMPLATED BY THIS AGREEMENT, THE INVESTOR SHARES WILL BE
VALIDLY ISSUED, FULLY PAID AND NONASSESSABLE, AND WILL CONFORM TO THE
DESCRIPTION OF THE COMMON STOCK CONTAINED IN THE PROSPECTUS.
(5)
THE EXECUTION AND DELIVERY OF THIS
AGREEMENT DO NOT, AND THE COMPLIANCE BY THE COMPANY WITH THE TERMS HEREOF WILL
NOT, (I) VIOLATE THE CERTIFICATE OF INCORPORATION (AS AMENDED TO DATE) OF THE
COMPANY OR THE BY-LAWS (AS AMENDED TO DATE) OF THE COMPANY, (II) RESULT IN A
BREACH OR VIOLATION OF ANY OF THE TERMS OR PROVISIONS OF, OR CONSTITUTE A
DEFAULT UNDER, ANY INDENTURE, MORTGAGE, DEED OF TRUST, LOAN AGREEMENT OR OTHER
AGREEMENT OR INSTRUMENT TO WHICH THE COMPANY OR ANY OF ITS SUBSIDIARIES IS A
PARTY OR BY WHICH THE COMPANY OR ANY OF ITS SUBSIDIARIES IS BOUND OR TO WHICH
ANY OF THEIR PROPERTIES OR ASSETS ARE SUBJECT, OR (III) RESULT IN A VIOLATION
OF, OR FAILURE TO BE IN COMPLIANCE WITH, ANY APPLICABLE STATUTE OR ANY ORDER,
JUDGMENT, DECREE, RULE OR REGULATION OF ANY COURT OR GOVERNMENTAL, REGULATORY OR
SELF-REGULATORY AGENCY OR BODY HAVING JURISDICTION OVER THE COMPANY OR ANY OF
ITS SUBSIDIARIES OR ANY OF THEIR PROPERTIES OR ASSETS, EXCEPT WHERE SUCH BREACH,
VIOLATION, DEFAULT OR THE FAILURE TO BE IN COMPLIANCE WOULD NOT INDIVIDUALLY OR
IN THE AGGREGATE HAVE A MATERIAL ADVERSE EFFECT OR ADVERSELY AFFECT THE ABILITY
OF THE COMPANY TO ISSUE AND SELL THE INVESTOR SHARES; AND NO CONSENT, APPROVAL,
AUTHORIZATION, ORDER, REGISTRATION, FILING OR QUALIFICATION OF OR WITH ANY SUCH
COURT OR GOVERNMENTAL, REGULATORY OR SELF-REGULATORY AGENCY OR BODY IS REQUIRED
FOR THE VALID AUTHORIZATION, EXECUTION, DELIVERY AND PERFORMANCE BY THE COMPANY
OF THIS AGREEMENT OR THE ISSUANCE OF THE INVESTOR SHARES, EXCEPT FOR SUCH
CONSENTS, APPROVALS, AUTHORIZATIONS, REGISTRATIONS, FILINGS OR QUALIFICATIONS AS
MAY BE REQUIRED UNDER THE SECURITIES ACT OR STATE SECURITIES OR "BLUE SKY" LAWS
AND HAVE BEEN OR WILL BE OBTAINED AND WHICH HAVE BEEN OR WILL BE MADE IN
CONNECTION WITH THE LISTING OF THE INVESTOR SHARES ON THE NASDAQ GLOBAL MARKET.
(6)
THE COMPANY MEETS THE REQUIREMENTS FOR THE
USE OF FORM S-3 UNDER THE SECURITIES ACT FOR THE PRIMARY ISSUANCE OF
SECURITIES.
THE REGISTRATION STATEMENT HAS BEEN DECLARED EFFECTIVE BY THE
COMMISSION AND AT THE TIME IT BECAME EFFECTIVE, AND AS OF THE DATE HEREOF, THE
REGISTRATION STATEMENT COMPLIED AND COMPLIES WITH RULE 415 UNDER THE SECURITIES
ACT.
NO STOP ORDER SUSPENDING THE EFFECTIVENESS OF THE REGISTRATION STATEMENT
HAS BEEN ISSUED AND NO PROCEEDING FOR THAT PURPOSE HAS BEEN INITIATED OR, TO THE
COMPANY'S KNOWLEDGE, THREATENED BY THE COMMISSION.
ON THE EFFECTIVE DATE OF THE
REGISTRATION STATEMENT,