OF TERMINATION, AMENDMENT, ACCELERATION OR
CANCELLATION OF, ANY AGREEMENT, INDENTURE OR INSTRUMENT TO WHICH SUCH BUYER IS A
PARTY, OR (III) RESULT IN A VIOLATION OF ANY LAW, RULE, REGULATION, ORDER,
JUDGMENT OR DECREE (INCLUDING FEDERAL AND STATE SECURITIES LAWS) APPLICABLE TO
SUCH BUYER, EXCEPT IN THE CASE OF CLAUSES (II) AND (III) ABOVE, FOR SUCH
CONFLICTS, DEFAULTS, RIGHTS OR 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.
(K)
RESIDENCY. SUCH BUYER IS A RESIDENT OF THAT
JURISDICTION SPECIFIED BELOW ITS ADDRESS ON THE SCHEDULE OF BUYERS.
(L)
VOTE FOR STOCKHOLDER APPROVAL. SUCH
BUYER, TO THE EXTENT SUCH BUYER OWNS ANY SHARES OF COMMON STOCK AT THE TIME OF
THE VOTE CONTEMPLATED BY THE STOCKHOLDER APPROVAL, HEREBY AGREES TO VOTE SUCH
SHARES OF COMMON STOCK IN FAVOR OF THE TRANSACTIONS CONTEMPLATED HEREBY IN
CONNECTION WITH THE STOCKHOLDER APPROVAL.
5
(M)
CERTAIN TRADING ACTIVITIES. OTHER THAN WITH
RESPECT TO THE TRANSACTIONS CONTEMPLATED HEREIN, SINCE THE TIME THAT SUCH BUYER
WAS FIRST CONTACTED BY THE COMPANY, EITHER OF THE AGENTS OR ANY OTHER PERSON
REGARDING THIS INVESTMENT IN THE COMPANY NEITHER THE BUYER NOR ANY AFFILIATE OF
SUCH BUYER WHICH (X) HAD KNOWLEDGE OF THE TRANSACTIONS CONTEMPLATED HEREBY, (Y)
HAS OR SHARES DISCRETION RELATING TO SUCH BUYER'S INVESTMENTS OR TRADING OR
INFORMATION CONCERNING SUCH BUYER'S INVESTMENTS AND (Z) IS SUBJECT TO SUCH
BUYER'S REVIEW OR INPUT CONCERNING SUCH AFFILIATE'S INVESTMENTS OR TRADING
(COLLECTIVELY, "TRADING AFFILIATES") HAS DIRECTLY OR INDIRECTLY, NOR HAS ANY
PERSON ACTING ON BEHALF OF OR PURSUANT TO ANY UNDERSTANDING WITH SUCH BUYER OR
TRADING AFFILIATE, EFFECTED OR AGREED TO EFFECT ANY TRANSACTIONS IN THE
SECURITIES OF THE COMPANY. SUCH BUYER HEREBY COVENANTS AND AGREES NOT TO, AND
SHALL CAUSE ITS TRADING AFFILIATES NOT TO, ENGAGE, DIRECTLY OR INDIRECTLY, IN
ANY TRANSACTIONS IN THE SECURITIES OF THE COMPANY OR INVOLVING THE COMPANY'S
SECURITIES DURING THE PERIOD FROM THE DATE HEREOF UNTIL SUCH TIME AS (I) THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT ARE FIRST PUBLICLY ANNOUNCED AS
DESCRIBED IN SECTION 4(I) HEREOF OR (II) THIS AGREEMENT IS TERMINATED IN FULL
PURSUANT TO SECTION 8 HEREOF.
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 IN WHICH THE COMPANY, DIRECTLY OR INDIRECTLY, OWNS CAPITAL
STOCK OR HOLDS AN EQUITY OR SIMILAR INTEREST) ARE ENTITIES DULY ORGANIZED AND
VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE JURISDICTION IN
WHICH THEY ARE FORMED, AND HAVE THE REQUISITE POWER AND AUTHORIZATION TO OWN
THEIR PROPERTIES AND TO CARRY ON THEIR BUSINESS AS NOW BEING CONDUCTED. EACH OF
THE COMPANY AND ITS SUBSIDIARIES IS DULY QUALIFIED AS A FOREIGN ENTITY TO DO
BUSINESS AND IS IN GOOD STANDING IN EVERY JURISDICTION IN WHICH ITS OWNERSHIP OF
PROPERTY OR THE NATURE