SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN
THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS OR
(B) AN OPINION OF COUNSEL, IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS
NOT REQUIRED UNDER SAID ACT OR APPLICABLE STATE SECURITIES LAWS OR (II) UNLESS
SOLD PURSUANT TO RULE 144 UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE
SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER
LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.
The legend set forth above shall be removed and the Company shall issue a
certificate without such legend to the holder of the Securities, if (i) such
Securities are registered for resale under the 1933 Act, (ii) such holder
provides the Company with reasonable assurances that the Securities can be sold
without restriction pursuant to Rule 144 promulgated under the 1933 Act
4
(or a successor rule thereto), or (iii) such holder provides the Company
reasonable assurances that the Securities have been or are being sold pursuant
to Rule 144.
H.
AUTHORIZATION; ENFORCEMENT; VALIDITY.
SUCH BUYER IS A VALIDLY EXISTING CORPORATION, PARTNERSHIP, LIMITED LIABILITY
COMPANY OR OTHER ENTITY AND HAS THE REQUISITE CORPORATE, PARTNERSHIP, LIMITED
LIABILITY OR OTHER ORGANIZATIONAL POWER AND AUTHORITY TO PURCHASE THE SECURITIES
PURSUANT TO THIS AGREEMENT.
THIS AGREEMENT HAS BEEN DULY AND VALIDLY
AUTHORIZED, EXECUTED AND DELIVERED ON BEHALF OF SUCH BUYER AND IS A VALID AND
BINDING AGREEMENT OF SUCH BUYER ENFORCEABLE AGAINST SUCH BUYER IN ACCORDANCE
WITH ITS TERMS.
THE SECURITY AGREEMENT AND EACH OF THE OTHER AGREEMENTS ENTERED
INTO BY SUCH BUYER IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY AS OF
THE CLOSING WILL HAVE BEEN DULY AND VALIDLY AUTHORIZED, EXECUTED AND DELIVERED
ON BEHALF OF SUCH BUYER AS OF THE CLOSING AND WILL BE VALID AND BINDING
AGREEMENTS OF SUCH BUYER, ENFORCEABLE AGAINST SUCH BUYER IN ACCORDANCE WITH
THEIR RESPECTIVE TERMS.
I.
RESIDENCY.
SUCH BUYER IS A RESIDENT
OF THAT JURISDICTION SPECIFIED BELOW ITS ADDRESS ON THE SCHEDULE OF BUYERS.
J.
NO OTHER AGREEMENTS.
AS OF THE
CLOSING DATE, SUCH BUYER HAS NOT, DIRECTLY OR INDIRECTLY, MADE ANY AGREEMENTS
WITH THE COMPANY RELATING TO THE TERMS OR CONDITIONS OF THE TRANSACTIONS
CONTEMPLATED BY THE TRANSACTION DOCUMENTS EXCEPT AS SET FORTH IN THE TRANSACTION
DOCUMENTS.
3.
REPRESENTATIONS AND WARRANTIES OF THE
COMPANY.
The Company represents and warrants, as of the date of this Agreement as of the
Closing Date, to each Buyer, that except as set forth in the Schedules to this
Agreement delivered by the Company to Buyer:
A.
ORGANIZATION AND QUALIFICATION;
SUBSIDIARIES.
THE COMPANY WAS FORMED ON APRIL 22, 2002.
SET FORTH IN SCHEDULE
3(A) IS A TRUE AND CORRECT LIST OF THE COMPANY'S SUBSIDIARIES AND FOREIGN
SUBSIDIARIES AND THE JURISDICTION IN WHICH EACH IS ORGANIZED OR INCORPORATED,
TOGETHER WITH THEIR RESPECTIVE JURISDICTIONS OF ORGANIZATION.
OTHER THAN WITH
RESPECT TO THE ENTITIES LISTED ON SCHEDULE 3(A), THE COMPANY DOES NOT DIRECTLY
OWN ANY SECURITY OR BENEFICIAL OWNERSHIP INTEREST