OF THE SHARES.
REPRESENTATIVES OF SUCH BUYER (I) HAVE PARTICIPATED IN BOARD OF DIRECTOR
MEETINGS OF THE COMPANY PURSUANT TO (A) ITS OBSERVATION RIGHTS (AS DEFINED IN
THE INITIAL PURCHASE AGREEMENT) AND (B) THROUGH ITS NOMINEES TO THE COMPANY'S
BOARD OF DIRECTORS APPOINTED PURSUANT TO THE TERMS OF THE AUGUST 2007 SECURITIES
PURCHASE AGREEMENT.
3.5
RESTRICTIONS ON TRANSFER.
SUCH BUYER UNDERSTANDS THAT EXCEPT AS
PROVIDED IN THE REGISTRATION RIGHTS AGREEMENT, THE ISSUANCE OF THE SHARES 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 SHARES INDEFINITELY AND
THE SHARES MAY NOT BE TRANSFERRED UNLESS (I) THE SHARES 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
SHARES 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
SHARES HAS BEEN REGISTERED UNDER THE 1933 ACT AS CONTEMPLATED BY THE
REGISTRATION RIGHTS AGREEMENT, OR OTHERWISE MAY BE SOLD PURSUANT TO AN EXEMPTION
FROM REGISTRATION, CERTIFICATES EVIDENCING THE SHARES 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 SHARES):
"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."
3.6
CONSENTS.
EXCEPT AS SET FORTH IN THIS AGREEMENT, NO BUYER WILL BE
REQUIRED TO OBTAIN ANY CONSENT FROM ANY PERSON OR ENTITY IN CONNECTION WITH THE
EXECUTION AND DELIVERY OF THIS AGREEMENT OR THE CONSUMMATION OR PERFORMANCE OF
ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.
6
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.
EXPECT AS SET FORTH ON SCHEDULE 4.1, 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