OF THE
COMMON STOCK (THE "STOCK PRICE") HAS FLUCTUATED SINCE THE SELLER PURCHASED THE
SHARES AND IS LIKELY TO CONTINUE TO FLUCTUATE AFTER THE DATE OF THIS AGREEMENT,
INCLUDING POSSIBLE MATERIAL INCREASES TO SUCH STOCK PRICE. THE SELLER FURTHER
ACKNOWLEDGES AND CONFIRMS THAT IT IS AWARE THAT FUTURE CHANGES AND DEVELOPMENTS
IN (A) THE BUYER'S BUSINESS AND FINANCIAL CONDITION AND OPERATING RESULTS,
(B) THE INDUSTRIES IN WHICH THE BUYER COMPETES AND (C) OVERALL MARKET AND
ECONOMIC CONDITIONS, MAY HAVE A FAVORABLE IMPACT ON THE VALUE OF THE COMMON
STOCK AFTER THE SALE BY THE SELLER OF THE SHARES TO THE BUYER PURSUANT TO TERMS
OF THIS AGREEMENT.
(F)
THE SELLER REPRESENTS AND WARRANTS THAT
IT IS NOT RELYING ON ANY REPRESENTATION OR WARRANTY BY THE BUYER IN CONNECTION
WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT EXCEPT AS EXPRESSLY SET
FORTH IN THIS AGREEMENT.
3.2
REPRESENTATIONS, WARRANTIES AND AGREEMENTS
OF THE BUYER.
(A)
AUTHORITY OF BUYER.
THE BUYER HAS THE
REQUISITE CORPORATE POWER AND AUTHORITY TO EXECUTE, DELIVER AND PERFORM THIS
AGREEMENT.
THIS AGREEMENT HAS BEEN DULY AUTHORIZED, EXECUTED AND DELIVERED BY
THE BUYER AND IS THE LEGAL, VALID AND BINDING OBLIGATION OF THE BUYER
ENFORCEABLE IN ACCORDANCE WITH ITS TERMS.
(B)
NO CONFLICT.
NEITHER THE EXECUTION AND
DELIVERY OF THIS AGREEMENT OR THE CONSUMMATION OF ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY NOR COMPLIANCE WITH OR FULFILLMENT OF THE TERMS, CONDITIONS
AND PROVISIONS HEREOF WILL CONFLICT WITH, RESULT IN A BREACH OF THE TERMS,
CONDITIONS OR PROVISIONS OF, OR CONSTITUTE A DEFAULT, AN EVENT OF DEFAULT OR AN
EVENT CREATING RIGHTS OF ACCELERATION, TERMINATION OR CANCELLATION OR A LOSS OF
RIGHTS UNDER (A) THE CERTIFICATE OF INCORPORATION OR BY-LAWS OF THE BUYER,
(B) ANY MATERIAL NOTE, INSTRUMENT, AGREEMENT, MORTGAGE, LEASE, LICENSE,
FRANCHISE, PERMIT OR OTHER AUTHORIZATION, RIGHT, RESTRICTION OR OBLIGATION TO
WHICH THE BUYER IS A PARTY OR BY WHICH THE BUYER IS BOUND, (C) ANY COURT ORDER
TO WHICH THE BUYER IS A PARTY OR BY WHICH THE BUYER IS BOUND, OR (D) ANY
REQUIREMENTS OF LAWS, RULES OR REGULATIONS AFFECTING THE BUYER OR OTHERWISE
APPLICABLE TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
ARTICLE IV
COVENANTS OF THE PARTIES
4.1
NO PROXY AND VOTING OF THE SHARES. (A) THE
SELLER COVENANTS AND AGREES THAT IT SHALL NOT GRANT TO ANY PERSON ANY PROXY WITH
RESPECT TO ANY OF THE SHARES (OTHER THAN TO A DESIGNATED REPRESENTATIVE OF THE
BUYER PURSUANT TO A PROXY STATEMENT OF THE BUYER). THE SELLER FURTHER COVENANTS
AND AGREES THAT IT SHALL CAUSE ALL OF THE SHARES FOR WHICH IT HAS THE RIGHT TO
VOTE AS OF THE RECORD DATE FOR ANY MEETING OF STOCKHOLDERS OF BUYER TO BE
PRESENT FOR QUORUM
3
PURPOSES AND TO BE VOTED AT ANY SUCH MEETING OR AT ANY ADJOURNMENTS OR
POSTPONEMENTS THEREOF, (X) IN FAVOR OF EACH DIRECTOR NOMINATED AND RECOMMENDED
BY THE BOARD OF DIRECTORS OF BUYER (THE "BOARD") FOR ELECTION AT ANY SUCH
MEETING AND (Y) IN ACCORDANCE WITH THE RECOMMENDATION OF THE BOARD FOR EACH