ALL TIMES WITHIN ITS CONTROL.
IF WHITNEY V
SHOULD IN THE FUTURE DECIDE TO DISPOSE OF ANY OF ITS SENIOR PREFERRED SHARES,
WHITNEY V UNDERSTANDS AND AGREES THAT IT MAY DO SO ONLY IN COMPLIANCE WITH THE
SECURITIES ACT, APPLICABLE STATE SECURITIES LAWS AND THE STOCKHOLDERS AGREEMENT,
EACH AS THEN IN EFFECT.
WHITNEY V AGREES TO THE IMPRINTING OF A LEGEND ON THE
CERTIFICATES REPRESENTING ALL OF ITS SENIOR PREFERRED SHARES IN THE FORM AND
SUBSTANCE SET FORTH IN SECTION 2.1 OF THE STOCKHOLDERS AGREEMENT.
(D)
GOVERNMENTAL AUTHORIZATION; THIRD PARTY CONSENT.
NO APPROVAL,
CONSENT, COMPLIANCE, EXEMPTION, AUTHORIZATION, OR OTHER ACTION BY, OR NOTICE TO,
OR FILING WITH, ANY GOVERNMENTAL AUTHORITY OR ANY OTHER PERSON IN RESPECT OF ANY
REQUIREMENT OF LAW, AND NO LAPSE OF A WAITING PERIOD UNDER A REQUIREMENT OF LAW,
IS NECESSARY OR REQUIRED IN CONNECTION WITH THE EXECUTION, DELIVERY OR
PERFORMANCE BY IT OR ENFORCEMENT AGAINST IT OF THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
(E)
BROKER'S, FINDER'S OR SIMILAR FEES.
EXCEPT AS PROVIDED IN SECTION
2.04, THERE ARE NO BROKERAGE COMMISSIONS, FINDER'S FEES OR SIMILAR FEES OR
COMMISSIONS PAYABLE IN
14
connection with the transactions contemplated hereby based on any agreement,
arrangement or understanding with Whitney V or any of its Affiliates or on any
action taken by any such Person.
4.02
Representations and Warranties of Hartnett.
Hartnett hereby
represents and warrants to the Company as follows:
(A)
AUTHORIZATION; NO CONTRAVENTION.
HARTNETT IS COMPETENT AND HAS
ALL REQUISITE AUTHORITY TO EXECUTE, DELIVER AND PERFORM HIS OBLIGATIONS UNDER
THIS AGREEMENT AND THE AMENDED STOCKHOLDERS AGREEMENT.
THE EXECUTION, DELIVERY
AND PERFORMANCE BY HARTNETT OF THIS AGREEMENT AND THE AMENDED STOCKHOLDERS
AGREEMENT SHALL NOT VIOLATE, CONFLICT WITH OR RESULT IN ANY BREACH OR
CONTRAVENTION OF ANY REQUIREMENT OF LAW OR ANY OF HIS, THE COMPANY'S OR ITS
SUBSIDIARIES' CONTRACTUAL OBLIGATIONS, OR ANY ORDER OR DECREE DIRECTLY RELATING
TO HIM OR SUCH OTHER PERSONS.
(B)
BINDING EFFECT.
EACH OF THIS AGREEMENT AND THE AMENDED
STOCKHOLDERS AGREEMENT CONSTITUTES A LEGAL, VALID AND BINDING OBLIGATION OF
HARTNETT, ENFORCEABLE AGAINST HIM IN ACCORDANCE WITH ITS TERMS, EXCEPT AS
ENFORCEABILITY MAY BE LIMITED BY APPLICABLE BANKRUPTCY, INSOLVENCY, OR SIMILAR
LAWS AFFECTING THE ENFORCEMENT OF CREDITORS' RIGHTS GENERALLY OR BY EQUITABLE
PRINCIPLES RELATING TO ENFORCEABILITY.
(C)
SECURITIES LAWS MATTERS.
THE SENIOR PREFERRED SHARES TO BE
ACQUIRED BY HARTNETT PURSUANT TO THIS AGREEMENT ARE BEING OR SHALL BE ACQUIRED
FOR HIS OWN ACCOUNT AND WITH NO INTENTION OF DISTRIBUTING OR RESELLING SUCH
SECURITIES OR ANY PART THEREOF IN ANY TRANSACTION THAT WOULD BE IN VIOLATION OF
THE SECURITIES LAWS OF THE UNITED STATES OF AMERICA, OR ANY STATE, WITHOUT
PREJUDICE, HOWEVER, TO HIS RIGHT AT ALL TIMES TO SELL OR OTHERWISE DISPOSE OF
ALL OR ANY PART OF HIS SENIOR PREFERRED SHARES UNDER AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, OR UNDER AN EXEMPTION FROM SUCH REGISTRATION
AVAILABLE UNDER THE SECURITIES ACT, AND SUBJECT, NEVERTHELESS, TO THE
DISPOSITION OF ITS PROPERTY BEING AT ALL TIMES WITHIN ITS CONTROL.
IF HARTNETT
SHOULD IN THE