UNITED STATES DOLLARS AND IN
IMMEDIATELY AVAILABLE FUNDS, BY WIRE TRANSFER TO AN ACCOUNT DESIGNATED IN
WRITING BY THE COMPANY FOR SUCH PURPOSE; AND
(II)
THE REGISTRATION RIGHTS AGREEMENT, DULY EXECUTED BY SUCH
INVESTOR.
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES
3.1.
Representations and Warranties of the Company.
The Company
hereby makes the following representations and warranties to each Investor:
(A)
SUBSIDIARIES. THE COMPANY HAS NO DIRECT OR INDIRECT SUBSIDIARIES
OTHER THAN AS SPECIFIED IN THE SEC REPORTS.
THE COMPANY OWNS, DIRECTLY OR
INDIRECTLY, ALL OF THE CAPITAL STOCK OF EACH SUBSIDIARY FREE AND CLEAR OF ANY
AND ALL LIENS, AND ALL THE ISSUED AND OUTSTANDING SHARES OF CAPITAL STOCK OF
EACH SUBSIDIARY ARE VALIDLY ISSUED AND ARE FULLY PAID, NON-ASSESSABLE AND FREE
OF PREEMPTIVE AND SIMILAR RIGHTS.
(B)
ORGANIZATION AND QUALIFICATION. THE COMPANY AND EACH SUBSIDIARY
ARE DULY INCORPORATED OR OTHERWISE ORGANIZED, VALIDLY EXISTING AND IN GOOD
STANDING UNDER THE LAWS OF THE JURISDICTION OF ITS INCORPORATION OR ORGANIZATION
(AS APPLICABLE), WITH THE REQUISITE POWER AND AUTHORITY TO OWN AND USE ITS
PROPERTIES AND ASSETS AND TO CARRY ON ITS BUSINESS AS CURRENTLY CONDUCTED.
NEITHER THE COMPANY NOR ANY SUBSIDIARY IS IN VIOLATION OF ANY OF THE PROVISIONS
OF ITS RESPECTIVE CERTIFICATE OR ARTICLES OF INCORPORATION, BYLAWS OR OTHER
ORGANIZATIONAL OR CHARTER DOCUMENTS. THE COMPANY AND EACH SUBSIDIARY ARE DULY
QUALIFIED TO CONDUCT ITS RESPECTIVE BUSINESSES AND ARE IN GOOD STANDING AS A
FOREIGN CORPORATION OR OTHER ENTITY IN EACH JURISDICTION IN WHICH THE NATURE OF
THE BUSINESS CONDUCTED OR PROPERTY OWNED BY IT MAKES SUCH QUALIFICATION
NECESSARY, EXCEPT WHERE THE FAILURE TO BE SO QUALIFIED OR IN GOOD STANDING, AS
THE CASE MAY BE, COULD NOT, INDIVIDUALLY OR IN THE AGGREGATE, HAVE OR REASONABLY
BE EXPECTED TO RESULT IN A MATERIAL ADVERSE EFFECT.
(C)
AUTHORIZATION; ENFORCEMENT. THE COMPANY HAS THE REQUISITE
CORPORATE POWER AND AUTHORITY TO ENTER INTO AND TO CONSUMMATE THE TRANSACTIONS
CONTEMPLATED BY EACH OF THE TRANSACTION DOCUMENTS AND OTHERWISE TO CARRY OUT ITS
OBLIGATIONS THEREUNDER. THE EXECUTION AND DELIVERY OF EACH OF THE TRANSACTION
DOCUMENTS BY THE COMPANY AND THE CONSUMMATION BY IT OF THE TRANSACTIONS
CONTEMPLATED THEREBY HAVE BEEN DULY AUTHORIZED BY ALL NECESSARY ACTION ON THE
PART OF THE COMPANY'S BOARD OF DIRECTORS AND NO FURTHER ACTION IS REQUIRED BY
THE COMPANY, ITS BOARD OF DIRECTORS OR ITS STOCKHOLDERS IN CONNECTION THEREWITH.
EACH TRANSACTION DOCUMENT HAS BEEN (OR UPON DELIVERY WILL HAVE BEEN) DULY
EXECUTED BY THE COMPANY AND, WHEN DELIVERED
5
IN ACCORDANCE WITH THE TERMS HEREOF, WILL CONSTITUTE THE VALID AND BINDING
OBLIGATION OF THE COMPANY ENFORCEABLE AGAINST THE COMPANY IN ACCORDANCE WITH ITS
TERMS, EXCEPT AS SUCH ENFORCEABILITY MAY BE LIMITED BY APPLICABLE BANKRUPTCY,
INSOLVENCY, REORGANIZATION, MORATORIUM, LIQUIDATION OR SIMILAR LAWS RELATING TO,
OR AFFECTING GENERALLY THE ENFORCEMENT OF, CREDITORS' RIGHTS AND REMEDIES OR BY
OTHER EQUITABLE PRINCIPLES OF GENERAL APPLICATION.
(D)
NO CONFLICTS. THE EXECUTION, DELIVERY AND PERFORMANCE OF THE
TRANSACTION DOCUMENTS BY THE COMPANY AND THE CONSUMMATION BY THE COMPANY OF THE
TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY DO NOT