PAGE HEREOF.
2.
Closing.
(A)
TIME AND PLACE.
EXCEPT AS OTHERWISE AGREED BY THE COMPANY AND THE
PURCHASER IN WRITING, THE CLOSING (THE "CLOSING") OF THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT SHALL BE HELD AT THE OFFICES OF DEBEVOISE &
PLIMPTON, 919 THIRD AVENUE, NEW YORK, NEW YORK AT 10:00 A.M. (NEW YORK TIME) ON
OR ABOUT [
], 2004.
(B)
DELIVERY BY THE COMPANY.
AT THE CLOSING, THE COMPANY SHALL
DELIVER TO THE PURCHASER A STOCK CERTIFICATE REGISTERED IN THE PURCHASER'S NAME
AND REPRESENTING THE SHARES, WHICH CERTIFICATE SHALL BEAR THE LEGENDS SET FORTH
IN SECTION 3(B).
(C)
DELIVERY BY THE PURCHASER.
AT THE CLOSING, THE PURCHASER SHALL
DELIVER TO THE COMPANY (I) THE CONSIDERATION REFERRED TO IN SECTION 1(B), AND
(II) A JOINDER TO THE STOCKHOLDERS AGREEMENT, EXECUTED BY THE PURCHASER.
3.
Purchaser's Representations, Warranties and Covenants.
(A)
INVESTMENT INTENTION.
THE PURCHASER REPRESENTS AND WARRANTS THAT
THE PURCHASER IS ACQUIRING THE SHARES SOLELY FOR THE PURCHASER'S OWN ACCOUNT FOR
INVESTMENT AND NOT WITH A VIEW TO OR FOR SALE IN CONNECTION WITH ANY
DISTRIBUTION THEREOF.
THE PURCHASER AGREES THAT THE PURCHASER WILL NOT,
DIRECTLY OR INDIRECTLY, OFFER, TRANSFER, SELL, PLEDGE, HYPOTHECATE OR OTHERWISE
DISPOSE OF ANY OF THE SHARES (OR SOLICIT ANY OFFERS TO BUY, PURCHASE OR
OTHERWISE ACQUIRE OR TAKE A PLEDGE OF ANY SHARES), EXCEPT IN COMPLIANCE WITH THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE RULES AND
REGULATIONS OF THE SECURITIES AND EXCHANGE COMMISSION (THE "COMMISSION")
THEREUNDER, AND IN COMPLIANCE WITH APPLICABLE STATE AND FOREIGN SECURITIES OR
"BLUE SKY" LAWS.
THE PURCHASER FURTHER UNDERSTANDS, ACKNOWLEDGES AND AGREES
THAT NONE OF THE SHARES MAY BE TRANSFERRED, SOLD, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF (I) UNLESS THE PROVISIONS OF SECTION 4, AND THE APPLICABLE
PROVISIONS OF THE AGREEMENT (INCLUDING, BUT NOT LIMITED TO, THE PLAN AS
INCORPORATED BY REFERENCE HEREIN) AND THE STOCKHOLDERS AGREEMENT SHALL HAVE BEEN
COMPLIED WITH OR HAVE EXPIRED, (II) UNLESS (A) SUCH DISPOSITION IS PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (B) THE PURCHASER
SHALL HAVE DELIVERED TO THE COMPANY AN OPINION OF COUNSEL, WHICH OPINION AND
COUNSEL SHALL BE
2
REASONABLY SATISFACTORY TO THE COMPANY, TO THE EFFECT THAT SUCH DISPOSITION IS
EXEMPT FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT, OR (C) A
NO-ACTION LETTER FROM THE COMMISSION, REASONABLY SATISFACTORY TO THE COMPANY,
SHALL HAVE BEEN OBTAINED WITH RESPECT TO SUCH DISPOSITION, AND (III) UNLESS SUCH
DISPOSITION IS PURSUANT TO REGISTRATION UNDER ANY APPLICABLE STATE AND FOREIGN
SECURITIES LAWS OR AN EXEMPTION THEREFROM.
(B)
LEGENDS.
THE PURCHASER ACKNOWLEDGES THAT THE CERTIFICATE OR
CERTIFICATES REPRESENTING THE SHARES SHALL BEAR AN APPROPRIATE LEGEND, WHICH
WILL INCLUDE, WITHOUT LIMITATION, THE FOLLOWING LANGUAGE:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND
CONDITIONS OF A SUBSCRIPTION AGREEMENT, DATED AS OF [
], 2004, AS
AMENDED FROM TIME TO TIME, AND A STOCKHOLDERS AGREEMENT, DATED AS OF MAY 27,
2004, BY AND AMONG THE COMPANY AND CERTAIN STOCKHOLDERS OF THE COMPANY, AS
AMENDED