5, THE BOARD MAY, AT OR AFTER THE CLOSING, WAIVE THE
CALL RIGHTS IN RESPECT OF SHARES UPON TERMINATION OF EMPLOYMENT.
(E)
CERTAIN ADJUSTMENTS.
NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED IN THIS SECTION 5, IN THE EVENT OF AN ADJUSTMENT EVENT, THE PURCHASE
PRICE PAYABLE PURSUANT TO THIS SECTION 5 (INCLUDING ANY MINIMUM OR MAXIMUM
PURCHASE PRICE SPECIFIED HEREIN OR IN EFFECT AS A RESULT OF A PRIOR ADJUSTMENT)
SHALL BE APPROPRIATELY ADJUSTED AS PROVIDED IN THE PLAN TO REFLECT SUCH EVENT.
6.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
THE COMPANY
REPRESENTS AND WARRANTS TO THE PURCHASER THAT (A) THE COMPANY HAS BEEN DULY
INCORPORATED AND IS AN EXISTING CORPORATION IN GOOD STANDING UNDER THE LAWS OF
THE STATE OF DELAWARE, (B) THIS AGREEMENT HAS BEEN DULY AUTHORIZED, EXECUTED AND
DELIVERED BY THE COMPANY AND CONSTITUTES A VALID AND LEGALLY BINDING OBLIGATION
OF THE COMPANY ENFORCEABLE AGAINST THE COMPANY IN ACCORDANCE WITH ITS TERMS, AND
(C) THE SHARES, WHEN ISSUED, DELIVERED AND PAID FOR IN ACCORDANCE WITH THE TERMS
HEREOF, WILL BE DULY AND VALIDLY ISSUED, FULLY PAID AND NONASSESSABLE, AND FREE
AND CLEAR OF ANY LIENS OR ENCUMBRANCES OTHER THAN THOSE CREATED PURSUANT TO THIS
AGREEMENT (INCLUDING, BUT NOT LIMITED TO, THE PLAN AS INCORPORATED BY REFERENCE
HEREIN), THE STOCKHOLDERS AGREEMENT, OR OTHERWISE IN CONNECTION WITH THE
TRANSACTIONS CONTEMPLATED HEREBY.
7.
CERTAIN RESTRICTIONS ON REPURCHASES.
(A)
FINANCING AGREEMENTS, ETC.
NOTWITHSTANDING ANY OTHER PROVISION OF
THIS AGREEMENT (INCLUDING, BUT NOT LIMITED TO, THE PLAN AS INCORPORATED BY
REFERENCE HEREIN), THE COMPANY SHALL NOT BE PERMITTED TO REPURCHASE ANY SHARES
FROM THE PURCHASER TO THE EXTENT THAT (I) SUCH REPURCHASE (OR THE PAYMENT OF A
DIVIDEND BY ANY SUBSIDIARY TO FUND SUCH REPURCHASE) WOULD RESULT IN ANY DEFAULT
OR AN EVENT OF DEFAULT, OR WOULD BE PROHIBITED UNDER, ANY FINANCING OR SECURITY
AGREEMENT OR DOCUMENT ENTERED INTO BY THE COMPANY OR ANY SUBSIDIARY PRIOR TO THE
DATE HEREOF, ANY REFUNDING THEREOF, OR IN CONNECTION WITH THE OPERATIONS OF THE
COMPANY OR ANY SUBSIDIARY FROM TIME TO TIME, IN EACH CASE, AS THE SAME MAY BE
AMENDED, MODIFIED OR SUPPLEMENTED FROM TIME TO TIME (THE "FINANCING
AGREEMENTS"), (II) SUCH REPURCHASE WOULD RESULT IN A VIOLATION OF ANY LAW,
STATUTE, RULE, REGULATION, POLICY, ORDER, WRIT, INJUNCTION, DECREE OR JUDGMENT
PROMULGATED OR ENTERED BY ANY FEDERAL, STATE, LOCAL OR FOREIGN COURT OR
GOVERNMENTAL AUTHORITY
7
APPLICABLE TO THE COMPANY OR ANY SUBSIDIARY OR ANY OF ITS OR THEIR PROPERTY,
(III) SUCH REPURCHASE WOULD VIOLATE ANY OF THE TERMS OR PROVISIONS OF THE
CERTIFICATE OF INCORPORATION OF THE COMPANY, OR (IV) THE COMPANY HAS NO FUNDS
LEGALLY AVAILABLE THEREFOR UNDER THE GENERAL CORPORATION LAW OF THE STATE OF
DELAWARE.
(B)
DELAY OF REPURCHASE.
IN THE EVENT THAT A REPURCHASE BY THE
COMPANY OTHERWISE PERMITTED UNDER SECTION 5 IS PREVENTED SOLELY BY THE TERMS OF
SECTION 7(A), (I) SUCH REPURCHASE WILL BE POSTPONED AND WILL TAKE PLACE WITHOUT
THE APPLICATION OF FURTHER CONDITIONS OR IMPEDIMENTS (OTHER THAN AS SET FORTH IN
SECTION 5 OR IN