Common use of Representations and Warranties of each Holder Clause in Contracts

Representations and Warranties of each Holder. Each Holder ------------------------------------------------ severally and not jointly represents and warrants to Parent and Sub as follows: (a) (i) such Holder has the right to vote the Voting Securities, listed opposite the name of such Holder on Schedule 1, (ii) such Voting Securities are, except as noted on Schedule 1, the only Equity Securities owned of record or beneficially by such Holder or in which such Holder has any interest or which such Holder has the right to vote, as the case may be, and (iii) such Holder does not have any option or other right to acquire any other Equity Securities; (b) such Holder has the right, power and authority to execute and deliver this Agreement and to perform his obligations hereunder; other than in connection with or in compliance with the disclosure provisions of the Securities Exchange Act of 1934, as amended, and the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the "HSR Act"), and any equivalent state laws the execution, delivery and performance of this Agreement by such Holder will not require the consent of or filing with any other person and will not constitute a violation of, conflict with or result in a default under (i) any contract, understanding or arrangement to which such Holder is a party or by which such Holder is bound, (ii) any judgment, decree or order applicable to such Holder, or (iii) any law, rule or regulation of any governmental body applicable to such Holder; and, assuming this Agreement is the valid and binding obligation of Parent and Sub, this Agreement constitutes a valid and binding agreement on the part of such Holder, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, moratorium or other similar laws relating to creditors' rights and general principles of equity; (d) except as set forth on Schedule 1, none of the Voting Securities are subject to any voting trust or other agreement or arrangement (except as created by this Agreement) with respect to the voting or disposition of the Voting Securities; and there are no outstanding options, warrants or rights to purchase or acquire, or agreements (except for this Agreement) relating to, such Voting Securities; (f) no person is required to withhold any amounts pursuant to Section 1445 of the Code from any payments of Merger Consideration (as defined in the Merger Agreement) made to a Holder pursuant to the Merger ("1445 Withholding").

Representations and Warranties of each Holder. Each Holder ------------------------------------------------ severally and not jointly represents and warrants to Parent and Sub as follows: (a) (i) such Holder has the right to vote the Voting Securities, listed opposite the name of such Holder on Schedule 1, (ii) such Voting Securities are, except as noted on Schedule 1, the only Equity Securities owned of record or beneficially by such Holder or in which such Holder has any interest or which such Holder has the right to vote, as the case may be, and (iii) such Holder does not have any option or other right to acquire any other Equity Securities; (b) such Holder has the right, power and authority to execute and deliver this Agreement and to perform his obligations hereunder; other than in connection with or in compliance with the disclosure provisions of the Securities Exchange Act of 1934, as amended, and the ▇▇▇▇Hart-▇▇▇▇▇Scott-▇▇▇▇▇▇ Rodino Antitrust Improvements Act of 1976, as amended ▇▇▇▇▇▇▇ (the ▇▇▇ "HSR ▇▇▇ Act"), and any equivalent state laws the execution, delivery and performance of this Agreement by such Holder will not require the consent of or filing with any other person and will not constitute a violation of, conflict with or result in a default under (i) any contract, understanding or arrangement to which such Holder is a party or by which such Holder is bound, (ii) any judgment, decree or order applicable to such Holder, or (iii) any law, rule or regulation of any governmental body applicable to such Holder; and, assuming this Agreement is the valid and binding obligation of Parent and Sub, this Agreement constitutes a valid and binding agreement on the part of such Holder, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, moratorium or other similar laws relating to creditors' rights and general principles of equity; (d) except as set forth on Schedule 1, none of the Voting Securities are subject to any voting trust or other agreement or arrangement (except as created by this Agreement) with respect to the voting or disposition of the Voting Securities; and there are no outstanding options, warrants or rights to purchase or acquire, or agreements (except for this Agreement) relating to, such Voting Securities; (f) no person is required to withhold any amounts pursuant to Section 1445 of the Code from any payments of Merger Consideration (as defined in the Merger Agreement) made to a Holder pursuant to the Merger ("1445 Withholding").

Representations and Warranties of each Holder. Each Holder ------------------------------------------------ Holder, severally and but not jointly jointly, represents and warrants to Parent and Sub the Company as of the date of the Closing as follows: (a) (i) such Each Series C Preferred Holder has is the right to vote lawful owner of the Voting Securities, listed number of shares of Series C Preferred Stock set forth opposite the name of such Series C Preferred Holder on in Schedule 1, (ii) such Voting Securities are, except as noted on Schedule 1, the only Equity Securities owned of record or beneficially by such Holder or in which such A hereto. Such Series C Preferred Holder has good, valid and marketable title to such shares of Series C Preferred Stock, free and clear of any interest and all any liens, security interests, restrictions, options or which encumbrances (other than restrictions on transfer under applicable securities laws), with full right and lawful authority to sell and transfer such Holder has shares to the right Company pursuant to votethis Agreement. There are no proxies, as the case may bevoting rights, and (iii) such Holder does not have any option stockholders agreements or other right to acquire any other Equity Securities; (b) such Holder has the rightagreements or understandings, power and authority to execute and deliver this Agreement and to perform his obligations hereunder; other than in connection with or in compliance with the disclosure provisions of the Securities Exchange Act of 1934, as amended, and the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the "HSR Act"), and any equivalent state laws the execution, delivery and performance of this Agreement by such Holder will not require the consent of or filing with any other person and will not constitute a violation of, conflict with or result in a default under (i) any contract, understanding or arrangement to which such Series C Preferred Holder is a party or by which such Series C Preferred Holder is bound, (ii) with respect to the voting or transfer of such shares of Series C Preferred Stock. Such Series C Preferred Holder has not granted any judgment, decree or order applicable options of any sort with respect to such Holdershares of Series C Preferred Stock or any right to acquire any such shares other than as contemplated hereby. Upon transfer of the shares of Series C Preferred Stock to the Company in accordance with this Agreement, or (iii) any lawthe Company will acquire good, rule or regulation valid and marketable title thereto, free of any governmental body and all any liens, security interests, restrictions, options or encumbrances (other than restrictions on transfer under applicable securities laws). (b) Each Holder has full power and authority to such Holder; andenter into this Agreement, assuming this Agreement is the valid and binding obligation of Parent and Sub, this Agreement constitutes a such Holder’s valid and legally binding agreement on the part of such Holderobligation, enforceable against such Holder in accordance with its terms, subject to except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium or and other similar laws of general application affecting enforcement of creditors’ rights generally and (ii) as limited by laws relating to creditors' rights and general principles the availability of equity;specific performance, injunctive relief or other equitable remedies. (c) There are no agreements, understandings, law, statute, rule or regulation or other restrictions of any kind to which such Holder is party or subject that would prevent or restrict the execution, delivery or performance of this Agreement. No consent or approval of any person, court or governmental authority is necessary for the Holder to perform the actions contemplated by this Agreement. (d) except The shares of Common Stock to be received by each Holder (the “Securities”) are being acquired for investment for such Holder’s own account not as set forth on Schedule 1a nominee or agent, none and not with a view to the resale or distribution of any part thereof, and such Holder has no present intention of selling, granting any participation in, or otherwise distributing the same. (e) Such Holder believes it has received all the information it considers necessary or appropriate for deciding whether to acquire the Securities. Such Holder further represents that it has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the Voting Securities are subject to any voting trust or other agreement or arrangement (except as created by transactions contemplated in this Agreement) with respect to Agreement and the voting or disposition business, properties, prospects and financial condition of the Voting Securities; Company. The foregoing, however, does not limit or modify the representations and there are no outstanding options, warrants warranties of the Company in Section 3 of this Agreement or rights the right of the Holders to purchase or acquire, or agreements (except for this Agreement) relating to, such Voting Securities;rely thereon. (f) Such Holder acknowledges that any investment in the Securities involves a high degree of risk, and represents that it is able, without materially impairing its financial condition, to hold the Securities for an indefinite period of time and to suffer a complete loss of its investment. (g) Such Holder is an “accredited investor” within the meaning of Rule 501 under the Securities Act of 1933 (the “Act”), as presently in effect and, for the purpose of Section 25102(f) of the California Corporations Code, such Holder is excluded from the count of “purchasers” pursuant to Rule 260.102.13 thereunder. (h) Such Holder understands that the Securities it is acquiring are characterized as “restricted securities” under the federal securities laws inasmuch as they are being acquired from the Company in a transaction not involving a public offering and that under such laws and applicable regulations such securities may be resold without registration under the Act only in certain limited circumstances. In this connection, such Holder represents that it is familiar with Rule 144 under the Act, as presently in effect, and understands the resale limitations imposed thereby and by the Act. EACH HOLDER UNDERSTANDS AND ACKNOWLEDGES HEREIN THAT AN INVESTMENT IN THE COMPANY’S SECURITIES INVOLVES A HIGH DEGREE OF RISK AND MAY RESULT IN A COMPLETE LOSS OF HIS, HER OR ITS INVESTMENT. Such Holder understands that the Securities have not been and will not be registered under the Act, and have not been and will not be registered or qualified in any state in which they are offered, and thus the Holder will not be able to resell or otherwise transfer his, her or its Securities unless they are registered under the Act and registered or qualified under applicable state securities laws, or an exemption from such registration or qualification is available. Such Holder has no person is immediate need for liquidity in connection with this investment, does not anticipate that the Holder will be required to withhold any amounts pursuant to Section 1445 of the Code from any payments of Merger Consideration (as defined sell his, her or its Securities in the Merger Agreement) made to a Holder pursuant to the Merger ("1445 Withholding")foreseeable future.