SHARE ACQUISITION, BUSINESS COMBINATION, POISON
PILL (INCLUDING ANY DISTRIBUTION UNDER A RIGHTS AGREEMENT) OR OTHER SIMILAR
ANTI-TAKEOVER PROVISION UNDER THE COMPANY'S CERTIFICATE OF INCORPORATION (OR
SIMILAR CHARTER DOCUMENTS) OR THE LAWS OF ITS STATE 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,
OTHER THAN THOSE PROVISIONS OF DELAWARE LAW GENERALLY APPLICABLE TO CORPORATIONS
ORGANIZED UNDER THE LAWS OF THAT STATE.
16
(Y)
DISCLOSURE.
EXCEPT WITH RESPECT TO THE
MATERIAL TERMS AND CONDITIONS OF THE TRANSACTION CONTEMPLATED BY THE TRANSACTION
DOCUMENTS, 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 INFORMATION THAT CONSTITUTES OR MIGHT CONSTITUTE MATERIAL, NONPUBLIC
INFORMATION.
THE COMPANY UNDERSTANDS AND CONFIRMS THAT THE PURCHASERS WILL RELY
ON THE FOREGOING REPRESENTATIONS AND COVENANTS IN EFFECTING TRANSACTIONS IN
SECURITIES OF THE COMPANY.
ALL DISCLOSURE PROVIDED TO THE PURCHASERS REGARDING
THE COMPANY, ITS BUSINESS AND THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING
THE DISCLOSURE SCHEDULES TO THIS AGREEMENT, FURNISHED BY OR ON BEHALF OF THE
COMPANY WITH RESPECT TO THE REPRESENTATIONS AND WARRANTIES MADE HEREIN ARE TRUE
AND CORRECT WITH RESPECT TO SUCH REPRESENTATIONS AND WARRANTIES AND DO NOT
CONTAIN ANY UNTRUE STATEMENT OF A MATERIAL FACT OR OMIT TO STATE ANY MATERIAL
FACT NECESSARY IN ORDER TO MAKE THE STATEMENTS MADE THEREIN, IN LIGHT OF THE
CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING. THE COMPANY
ACKNOWLEDGES AND AGREES THAT NO PURCHASER MAKES OR HAS MADE ANY REPRESENTATIONS
OR WARRANTIES WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED HEREBY OTHER THAN
THOSE SPECIFICALLY SET FORTH IN SECTION 3.2 HEREOF.
(Z)
NO INTEGRATED OFFERING. ASSUMING THE
ACCURACY OF THE PURCHASERS' REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION
3.2, NEITHER THE COMPANY, NOR ANY OF ITS AFFILIATES, NOR ANY PERSON ACTING ON
ITS OR THEIR BEHALF HAS, DIRECTLY OR INDIRECTLY, MADE ANY OFFERS OR SALES OF ANY
SECURITY OR SOLICITED ANY OFFERS TO BUY ANY SECURITY, UNDER CIRCUMSTANCES THAT
WOULD CAUSE THIS OFFERING OF THE SECURITIES TO BE INTEGRATED WITH PRIOR
OFFERINGS BY THE COMPANY FOR PURPOSES OF THE SECURITIES ACT OR ANY APPLICABLE
SHAREHOLDER APPROVAL PROVISIONS, INCLUDING, WITHOUT LIMITATION, UNDER THE RULES
AND REGULATIONS OF ANY TRADING MARKET ON WHICH ANY OF THE SECURITIES OF THE
COMPANY ARE LISTED OR DESIGNATED.
(AA)
SOLVENCY.
BASED ON THE FINANCIAL CONDITION OF
THE COMPANY AS OF THE CLOSING DATE AFTER GIVING EFFECT TO THE RECEIPT BY THE
COMPANY OF THE PROCEEDS FROM THE SALE OF THE SECURITIES HEREUNDER AND ASSUMING
FOR PURPOSES OF THIS REPRESENTATION THAT THE SECURITIES ARE ALL CONVERTED INTO
EQUITY, (I) THE COMPANY'S FAIR SALEABLE VALUE OF ITS ASSETS EXCEEDS THE AMOUNT
THAT WILL BE REQUIRED TO BE PAID ON OR IN RESPECT OF THE COMPANY'S EXISTING
DEBTS AND OTHER LIABILITIES (INCLUDING KNOWN