executed and delivered on behalf of the Investor and is a valid and
binding agreement of the Investor enforceable against the Investor in accordance
with its terms.
Each of the Registration Rights Agreement and the other
Transaction Documents to be entered into and executed by the Investor in
connection with the Transactions as of the Closing will have been duly and
validly authorized, executed and delivered on behalf of the Investor as of the
Closing and will constitute a valid and binding agreement of the Investor,
enforceable against the Investor in accordance with its terms.
i.
Residency.
The Investor is a limited liability company
organized under the laws of the State of Delaware.
J.
NO OTHER AGREEMENTS.
FROM AUGUST 27, 2009 THROUGH AND INCLUDING
THE DATE OF THIS AGREEMENT, NEITHER INVESTOR NOR ANY OF ITS AFFILIATES HAS
ENTERED INTO ANY AGREEMENT WITH ANY PERSON THAT, AS OF THE DATE OF THIS
AGREEMENT, IS A SHAREHOLDER OF THE COMPANY WITH RESPECT TO ANY RIGHT TO ANY
INTEREST IN ANY OF THE SECURITIES.
IF, AT ANY TIME AFTER THE DATE OF THIS
AGREEMENT BUT ON OR PRIOR TO THE CLOSING DATE, INVESTOR OR ANY OF ITS AFFILIATES
ENTERS INTO ANY SUCH AGREEMENT WITH ANY PERSON THAT, AS OF THE DATE OF THIS
AGREEMENT, IS A SHAREHOLDER OF THE COMPANY, INVESTOR WILL PROMPTLY NOTIFY THE
COMPANY THEREOF.
K.
PRIOR TRANSACTIONS.
DURING THE PERIOD COMMENCING ON FEBRUARY 9,
2009 AND ENDING ON THE BUSINESS DAY IMMEDIATELY PRIOR TO THE DATE OF THIS
AGREEMENT (THE "PRE-SIGNING PERIOD"), THE INVESTOR DID NOT PURCHASE OR SELL ANY
SHARES OF COMMON STOCK.
WITHOUT LIMITING THE FOREGOING, DURING THE PRE-SIGNING
PERIOD, THE INVESTOR DID NOT ENGAGE IN ANY TRANSACTION CONSTITUTING A "SHORT
SALE" (AS DEFINED IN RULE 200 OF REGULATION SHO UNDER THE SECURITIES EXCHANGE
ACT OF 1934, AS AMENDED AND THE RULES AND REGULATIONS PROMULGATED THEREUNDER
(THE "1934 ACT")) OF SHARES OF COMMON STOCK OR ESTABLISH AN OPEN "PUT EQUIVALENT
POSITION" (WITHIN THE MEANING OF RULE 16A-1(H) UNDER THE 1934 ACT) WITH RESPECT
TO THE COMMON STOCK.
L.
AVAILABLE FUNDS.
THE INVESTOR HAS, OR WILL HAVE SUFFICIENT
FUNDS IN ITS POSSESSION TO PERMIT THE INVESTOR TO ACQUIRE AND PAY FOR THE
SECURITIES BEING PURCHASED BY THE INVESTOR AND TO PERFORM IT OBLIGATIONS UNDER
THE TRANSACTION DOCUMENTS.
M.
NO GENERAL SOLICITATION.
THE INVESTOR DID NOT LEARN OF THE
INVESTMENT IN THE COMMON SHARES AND THE WARRANT AS A RESULT OF ANY PUBLIC
ADVERTISING OR GENERAL SOLICITATION.
9
N.
BROKERS AND FINDERS.
OTHER THAN AS CONTEMPLATED IN THIS
AGREEMENT, NO PERSON WILL HAVE, AS A RESULT OF THE TRANSACTION CONTEMPLATED BY
THE TRANSACTION DOCUMENTS, ANY VALID RIGHT, INTEREST OR CLAIM AGAINST OR UPON
THE COMPANY OR ANY SUBSIDIARY FOR ANY COMMISSION, FEE OR OTHER COMPENSATION
PURSUANT TO ANY AGREEMENT, ARRANGEMENT OR UNDERSTANDING ENTERED INTO BY OR ON
BEHALF OF THE INVESTOR.
3.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants as of the date of this Agreement and, as of
the Closing Date solely with respect