FOR FEES
OF THE TYPE CONTEMPLATED BY THIS SECTION WITH THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT.
(U)
PRIVATE PLACEMENT.
ASSUMING THE ACCURACY OF
THE REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS SET FORTH IN SECTIONS
3.2(B)-(E), THE OFFER, ISSUANCE AND SALE OF THE SECURITIES TO THE PURCHASERS AS
CONTEMPLATED HEREBY ARE EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.
THE ISSUANCE AND SALE OF THE SECURITIES HEREUNDER DO NOT
CONTRAVENE THE RULES AND REGULATIONS OF THE PRINCIPAL MARKET, EXCEPT THAT
SHAREHOLDER APPROVAL IS REQUIRED FOR THE COMPANY TO ISSUE IN EXCESS OF
2,521,689 SHARES OF COMMON STOCK UNDER THE TRANSACTION DOCUMENTS.
(V)
LISTING AND MAINTENANCE REQUIREMENTS.
THE
COMPANY HAS NOT, IN THE 12 MONTHS PRECEDING THE DATE HEREOF, RECEIVED NOTICE
FROM ANY PRINCIPAL MARKET ON WHICH THE COMMON STOCK IS OR HAS BEEN LISTED OR
QUOTED TO THE EFFECT THAT THE COMPANY IS NOT IN COMPLIANCE WITH THE LISTING OR
MAINTENANCE REQUIREMENTS OF SUCH PRINCIPAL MARKET. THE COMPANY IS, AND HAS NO
REASON TO BELIEVE THAT IT WILL NOT IN THE FORESEEABLE FUTURE CONTINUE TO BE, IN
COMPLIANCE WITH ALL SUCH LISTING AND MAINTENANCE REQUIREMENTS.
(W)
REGISTRATION RIGHTS.
THE
COMPANY HAS NOT
GRANTED OR AGREED TO GRANT TO ANY PERSON ANY RIGHTS (INCLUDING "PIGGY-BACK"
REGISTRATION RIGHTS) TO HAVE ANY SECURITIES OF THE COMPANY REGISTERED WITH THE
COMMISSION OR ANY OTHER GOVERNMENTAL AUTHORITY THAT
ARE REQUIRED TO BE INCLUDED
IN THE REGISTRATION STATEMENT(S) REQUIRED TO BE FILED BY THE COMPANY PURSUANT TO
THE TRANSACTION DOCUMENTS
(X)
APPLICATION OF TAKEOVER PROTECTIONS.
THE
COMPANY AND ITS SUPERVISORY BOARD HAVE TAKEN ALL NECESSARY ACTION, IF ANY, IN
ORDER TO RENDER INAPPLICABLE ANY CONTROL SHARE ACQUISITION, BUSINESS
COMBINATION, POISON PILL (INCLUDING ANY DISTRIBUTION UNDER A RIGHTS AGREEMENT)
OR OTHER SIMILAR ANTI-TAKEOVER PROVISION UNDER THE COMPANY'S ARTICLES OF
ASSOCIATION (OR SIMILAR CHARTER DOCUMENTS) OR THE LAWS OF ITS JURISDICTION OF
INCORPORATION THAT IS OR COULD BECOME APPLICABLE TO THE PURCHASERS AS A RESULT
OF THE PURCHASERS AND THE COMPANY FULFILLING 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)
SENIORITY.
EXCEPT FOR LIENS SECURING
INDEBTEDNESS DISCLOSED IN THE SEC REPORTS AND WITHOUT CONSIDERATION OF EQUITABLE
SUBORDINATION PRINCIPLES, AS OF THE CLOSING DATE, NO INDEBTEDNESS OF THE COMPANY
IS SENIOR TO THE DEBENTURES IN RIGHT OF PAYMENT, WHETHER WITH RESPECT TO
INTEREST OR UPON LIQUIDATION OR DISSOLUTION, OR OTHERWISE, OTHER THAN
INDEBTEDNESS SECURED BY PURCHASE MONEY SECURITY INTERESTS (WHICH IS SENIOR ONLY
AS TO UNDERLYING ASSETS COVERED THEREBY) AND CAPITAL LEASE OBLIGATIONS (WHICH IS
SENIOR ONLY AS TO THE PROPERTY COVERED THEREBY).
(Z)
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
14
INFORMATION THAT CONSTITUTES OR MIGHT CONSTITUTE MATERIAL, NONPUBLIC
INFORMATION, UNLESS PRIOR THERETO SUCH PURCHASER SHALL HAVE EXECUTED A WRITTEN
AGREEMENT REGARDING THE CONFIDENTIALITY AND USE OF SUCH INFORMATION.
THE
COMPANY UNDERSTANDS AND