ENTITY'S OWN ACCOUNT, FOR INVESTMENT AND NOT WITH A VIEW TO OR FOR THE RESALE OR
DISTRIBUTION THEREOF (EXCEPT AS SUCH SHARES MAY BE RESOLD AS CONTEMPLATED BY
SECTION 3.23(D) HERETO); SUCH SELLER ENTITY HAS NO PRESENT PLANS TO ENTER INTO
ANY CONTRACT, UNDERTAKING, AGREEMENT, OR ARRANGEMENT RELATING THERETO THAT WOULD
RENDER THE BUYER UNABLE TO RELY ON THE SAFE HARBOR SET FORTH IN REGULATION D
UNDER THE SECURITIES ACT FOR THE ISSUANCE OF THE COMMON STOCK HEREUNDER.
(D)
SUCH SELLER ENTITY ACQUIRING COMMON STOCK UNDERSTANDS THAT THE
SHARES OF SUCH COMMON STOCK TO BE ISSUED HEREUNDER HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OR UNDER THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION AND ARE BEING OFFERED AND ISSUED IN RELIANCE UPON EXEMPTIONS FOR
PRIVATE OFFERINGS. SUCH SELLER ENTITY ACQUIRING SUCH COMMON STOCK ACKNOWLEDGES
AND IS AWARE THAT THERE ARE SUBSTANTIAL RESTRICTIONS ON THE TRANSFERABILITY OF
THE COMMON STOCK; THE COMMON STOCK TO BE ISSUED HEREUNDER CANNOT BE RESOLD
UNLESS THEY ARE REGISTERED UNDER THE SECURITIES ACT AND QUALIFIED UNDER ANY
APPLICABLE SECURITIES LAW OF ANY STATE OR OTHER JURISDICTION, OR AN EXEMPTION
FROM SUCH REGISTRATION OR QUALIFICATION IS AVAILABLE. EACH SELLER ENTITY
ACKNOWLEDGES THAT THE SOLE OBLIGATION OF THE BUYER TO REGISTER SHARES OF COMMON
STOCK UNDER THE SECURITIES ACT ARE PURSUANT TO THE TERMS AND CONDITIONS OF THE
INVESTOR RIGHTS AGREEMENT AND THAT THE BUYER HAS NO OBLIGATION TO REGISTER ANY
SECURITIES OF BUYER OTHER THAN COMMON STOCK PURSUANT TO THE INVESTOR RIGHTS
AGREEMENT.
(12)
Most recent Form 10-K filing before signing this Agreement.
33
3.24
Valuation Representation. The Seller Entities warrant and
represent that, as a result of the transactions contemplated by this Agreement,
no acquiring person affiliated with the Seller Entities will hold voting
securities of Buyer valued at greater than $[56.7] million(13), as determined
pursuant to the rules set forth in the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended, 15 U.S.C. sec. 18a, and the implementing regulations
thereunder, 16 C.F.R. Parts 801-803 (the "HSR Act").
SECTION 4.
REPRESENTATIONS AND WARRANTIES OF THE PARENT.
As a material inducement to Buyer to enter into this Agreement and consummate
the transactions contemplated hereby, the Parent hereby makes to Buyer, the
representations and warranties contained in this Section 4 as of the date hereof
and as of the Closing Date.
4.1
Organization and Qualifications of the Parent. The Parent is an
entity duly organized, validly existing and in good standing (if applicable)
under the Laws of the jurisdiction of its organization with all requisite power
and authority to own or lease its properties and to conduct its business in the
manner and in the places where such properties are owned or leased or such
business is conducted by it. The copies of the organizational documents
(including charter, articles of association and by-laws) of Parent (the "Parent
Organizational Documents"), each as amended to date, and previously delivered to
Buyer's counsel, are complete and correct, and no amendments thereto are
pending.
4.2
Authority of the