QUESTIONS, TO
THE EXTENT SUCH BUYER CONSIDERED NECESSARY, AND HAVE RECEIVED ANSWERS FROM,
OFFICERS OF THE COMPANY CONCERNING THE BUSINESS, FINANCES AND OPERATIONS OF THE
COMPANY AND INFORMATION RELATING TO THE OFFER AND SALE OF THE SECURITIES, AND
(IV) HAVE RECEIVED OR HAD AN OPPORTUNITY TO OBTAIN SUCH ADDITIONAL INFORMATION
AS THEY DEEM NECESSARY TO MAKE AN INFORMED INVESTMENT DECISION WITH RESPECT TO
THE PURCHASE OF THE SECURITIES.
3.5
RESTRICTIONS ON TRANSFER.
SUCH BUYER UNDERSTANDS THAT EXCEPT AS
PROVIDED IN THE REGISTRATION RIGHTS AGREEMENT, THE ISSUANCE OF THE SECURITIES
HAS NOT BEEN AND IS NOT BEING REGISTERED UNDER THE 1933 ACT OR ANY APPLICABLE
STATE SECURITIES LAWS. SUCH BUYER MAY BE REQUIRED TO HOLD THE SECURITIES
INDEFINITELY AND THE SECURITIES MAY NOT BE TRANSFERRED UNLESS (I) THE SECURITIES
ARE SOLD PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT, OR
(II) SUCH BUYER SHALL HAVE DELIVERED TO THE COMPANY AN OPINION OF COUNSEL TO THE
EFFECT THAT THE SECURITIES TO BE SOLD OR TRANSFERRED MAY BE SOLD OR TRANSFERRED
PURSUANT TO AN EXEMPTION FROM SUCH REGISTRATION, WHICH OPINION SHALL BE
REASONABLY ACCEPTABLE TO THE COMPANY. SUCH BUYER UNDERSTANDS THAT UNTIL SUCH
TIME AS THE RESALE OF THE SECURITIES HAS BEEN REGISTERED UNDER THE 1933 ACT AS
CONTEMPLATED BY THE REGISTRATION RIGHTS AGREEMENT, AS IT MAY BE AMENDED BY THE
RRA AMENDMENT, OR OTHERWISE MAY BE SOLD PURSUANT TO AN EXEMPTION FROM
REGISTRATION,
5
CERTIFICATES EVIDENCING THE SECURITIES MAY BEAR A RESTRICTIVE LEGEND IN
SUBSTANTIALLY THE FOLLOWING FORM (AND A STOP-TRANSFER ORDER MAY BE PLACED
AGAINST TRANSFER OF THE CERTIFICATES EVIDENCING SUCH SECURITIES):
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "ACT").
THE SHARES MAY NOT BE OFFERED FOR SALE,
SOLD, OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT, OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
ACT, THE AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO THE SATISFACTION OF THE
CORPORATION."
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth in the Company's Disclosure Schedule attached hereto, the
Company represents and warrants to the Buyers that:
4.1
ORGANIZATION AND QUALIFICATION.
THE COMPANY HAS NO SUBSIDIARIES
OTHER THAN THE SUBSIDIARIES.
THE COMPANY AND EACH OF ITS SUBSIDIARIES IS A
CORPORATION, LIMITED PARTNERSHIP, LIMITED LIABILITY COMPANY, OR JOINT VENTURE AS
APPLICABLE, DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS
OF THE JURISDICTION IN WHICH IT IS INCORPORATED OR ORGANIZED, WITH CORPORATE,
LIMITED LIABILITY OR LIMITED PARTNERSHIP POWER AND AUTHORITY TO OWN, LEASE, USE
AND OPERATE ITS PROPERTIES AND TO CARRY ON ITS BUSINESS AS NOW OPERATED AND
CONDUCTED.
THE COMPANY AND EACH OF ITS SUBSIDIARIES IS DULY QUALIFIED AS A
FOREIGN CORPORATION, LIMITED LIABILITY COMPANY OR LIMITED PARTNERSHIP TO DO
BUSINESS AND IS IN GOOD STANDING IN EACH JURISDICTION IN WHICH ITS OWNERSHIP OR
USE OF PROPERTY OR THE NATURE OF THE BUSINESS CONDUCTED BY IT MAKES SUCH
QUALIFICATION NECESSARY, EXCEPT WHERE THE FAILURE TO BE SO QUALIFIED OR