THE COMPANY IN ACCORDANCE WITH
THE TERMS HEREOF.
(D)
IMMEDIATELY PRIOR TO THE CLOSING, THE
AUTHORIZED CAPITAL STOCK OF THE COMPANY CONSISTS OF (I) 600,000 SHARES OF CLASS
A COMMON, OF WHICH 437,695.64 SHARES (WITHOUT GIVING EFFECT TO THE RESTRICTED
SHARES OR UP TO 883.75 SHARES UNDER OPTION GRANTS THAT WILL BE CASHED OUT
IMMEDIATELY PRIOR TO CLOSING) ARE ISSUED AND OUTSTANDING AND (II) 600,000
2
shares of Class B Common, of which 44,346.80 shares are issued and outstanding.
Immediately prior to the Closing, except for options to purchase 5,450 shares of
Class A Common (without giving effect to the Restricted Shares, options to
purchase up to 26,150 shares under the 2003 Plan and up to 883.75 shares which
will be cashed out immediately prior to Closing), there are no rights,
subscriptions, warrants, options, conversion rights, or agreements of any kind
outstanding to purchase from the Company, or otherwise require the Company to
issue, any shares of capital stock of the Company or securities or obligations
of any kind convertible into or exchangeable for any shares of capital stock of
the Company.
(E)
AFTER GIVING EFFECT TO THE CLOSING AND
EXCLUDING ANY RESTRICTED SHARES AND OPTION SHARES, THE AUTHORIZED CAPITAL STOCK
OF THE COMPANY WILL CONSIST OF (I) 600,000 SHARES OF CLASS A COMMON, OF WHICH
437,695.64 SHARES (WITHOUT GIVING EFFECT TO UP TO 883.75 SHARES THAT WILL BE
ISSUED BY THE COMPANY TO THE FUND AT CLOSING) WILL BE ISSUED AND OUTSTANDING
IMMEDIATELY AFTER THE CLOSING AND (II) 600,000 SHARES OF CLASS B COMMON, OF
WHICH 44,346.80 SHARES WILL BE ISSUED AND OUTSTANDING IMMEDIATELY AFTER THE
CLOSING.
EXCEPT AS SET FORTH ON EXHIBIT A-2 ATTACHED HERETO AND EXCEPT AS
OTHERWISE SET FORTH HEREIN, AS OF THE CLOSING DATE, THERE WILL BE NO RIGHTS,
SUBSCRIPTIONS, WARRANTS, OPTIONS, CONVERSION RIGHTS, OR AGREEMENTS OF ANY KIND
OUTSTANDING TO PURCHASE FROM THE COMPANY, OR OTHERWISE REQUIRE THE COMPANY TO
ISSUE, ANY SHARES OF CAPITAL STOCK OF THE COMPANY OR SECURITIES OR OBLIGATIONS
OF ANY KIND CONVERTIBLE INTO OR EXCHANGEABLE FOR ANY SHARES OF CAPITAL STOCK OF
THE COMPANY, AND THE COMPANY WILL NOT BE SUBJECT TO ANY OBLIGATION (CONTINGENT
OR OTHERWISE) TO REPURCHASE OR OTHERWISE ACQUIRE OR RETIRE ANY SHARES OF ITS
CAPITAL STOCK; AND THE SHARES CONSTITUTE ALL OF THE OUTSTANDING SHARES OF THE
COMPANY'S CAPITAL STOCK.
1.2.
REPRESENTATIONS AND WARRANTIES OF EACH
INVESTOR.
EACH OF THE INVESTORS SEVERALLY REPRESENTS AND WARRANTS TO THE
COMPANY AND EACH OTHER INVESTOR THAT:
(A)
SUCH INVESTOR HAS FULL LEGAL RIGHT, POWER
AND AUTHORITY (INCLUDING THE DUE AUTHORIZATION BY ALL NECESSARY CORPORATE,
PARTNERSHIP OR LIMITED LIABILITY COMPANY ACTION) TO ENTER INTO THIS AGREEMENT
AND TO PERFORM SUCH INVESTOR'S OBLIGATIONS HEREUNDER WITHOUT THE NEED FOR THE
CONSENT OF ANY OTHER PERSON;
(B)
THIS AGREEMENT HAS BEEN DULY AUTHORIZED,
EXECUTED AND DELIVERED AND, AS OF THE EFFECTIVE TIME, CONSTITUTES THE LEGAL,
VALID AND BINDING OBLIGATION OF SUCH INVESTOR ENFORCEABLE AGAINST SUCH INVESTOR
IN ACCORDANCE WITH THE TERMS HEREOF; AND
(C)
SUCH INVESTOR IS THE RECORD OWNER OF