STOCK EQUAL TO 50% OF THE SHARES TO
BE ISSUED TO SUCH PURCHASER AT SUCH CLOSING;
(IV)
THE REGISTRATION RIGHTS AGREEMENT DULY EXECUTED BY THE COMPANY; AND
(V)
A LEGAL OPINION OF COMPANY COUNSEL, IN THE FORM OF EXHIBIT A ATTACHED
HERETO.
(B)
AT A CLOSING, EACH PURCHASER SHALL DELIVER OR CAUSE TO BE DELIVERED TO THE
COMPANY THE FOLLOWING:
(I)
THIS AGREEMENT DULY EXECUTED BY SUCH PURCHASER;
4
(II)
SUCH PURCHASER'S SUBSCRIPTION AMOUNT AS TO SUCH CLOSING BY WIRE TRANSFER
TO THE ACCOUNT OF THE COMPANY AS PROVIDED TO THE PURCHASERS IN WRITING PRIOR TO
THE CLOSING DATE; AND
(III)
THE REGISTRATION RIGHTS AGREEMENT DULY EXECUTED BY SUCH PURCHASER.
(C)
ALL REPRESENTATIONS AND WARRANTIES OF THE OTHER PARTY CONTAINED HEREIN
SHALL REMAIN TRUE AND CORRECT AS OF THE CLOSING DATE (EXCEPT FOR REPRESENTATIONS
AND WARRANTIES THAT SPEAK AS OF A SPECIFIC DATE, WHICH REPRESENTATIONS AND
WARRANTIES MUST BE CORRECT AS OF SUCH DATE).
(D)
AS OF THE CLOSING DATE, THERE SHALL HAVE BEEN NO MATERIAL ADVERSE EFFECT
WITH RESPECT TO THE COMPANY SINCE THE DATE HEREOF.
(E)
FROM THE DATE HEREOF TO THE CLOSING DATE, TRADING IN THE COMMON STOCK
SHALL NOT HAVE BEEN SUSPENDED BY THE COMMISSION (EXCEPT FOR ANY SUSPENSION OF
TRADING OF LIMITED DURATION AGREED TO BY THE COMPANY, WHICH SUSPENSION SHALL BE
TERMINATED PRIOR TO THE CLOSING), AND, AT ANY TIME PRIOR TO THE CLOSING DATE,
TRADING IN SECURITIES GENERALLY AS REPORTED BY BLOOMBERG FINANCIAL MARKETS SHALL
NOT HAVE BEEN SUSPENDED OR LIMITED, OR MINIMUM PRICES SHALL NOT HAVE BEEN
ESTABLISHED ON SECURITIES WHOSE TRADES ARE REPORTED BY SUCH SERVICE, OR ON ANY
TRADING MARKET, NOR SHALL A BANKING MORATORIUM HAVE BEEN DECLARED EITHER BY THE
UNITED STATES OR NEW YORK STATE AUTHORITIES.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
3.1
Representations and Warranties of the Company.
Except as set
forth or incorporated by reference in (i) the SEC Reports, which qualify the
following representations and warranties in their entirety, or (ii) the
corresponding section of the Disclosure Schedules delivered concurrently
herewith, the Company hereby makes the following representations and warranties
as of the date hereof and as of the Closing Date to each Purchaser:
(A)
SUBSIDIARIES.
ALL SUBSIDIARIES OF THE COMPANY ARE LISTED ON EXHIBIT 21.1
OF THE COMPANY'S ANNUAL REPORT ON FORM 10-K FOR THE YEAR ENDED DECEMBER 31, 2002
(EACH A "SUBSIDIARY").
THE COMPANY OWNS, DIRECTLY OR INDIRECTLY, ALL OF THE
CAPITAL STOCK OF EACH SUBSIDIARY FREE AND CLEAR OF ANY LIENS, AND ALL THE ISSUED
AND OUTSTANDING SHARES OF CAPITAL STOCK OF EACH SUBSIDIARY ARE VALIDLY ISSUED
AND ARE FULLY PAID, NON-ASSESSABLE AND FREE OF PREEMPTIVE AND SIMILAR RIGHTS.
(B)
ORGANIZATION AND QUALIFICATION.
EACH OF THE COMPANY AND THE SUBSIDIARIES
IS AN ENTITY DULY INCORPORATED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE
LAWS OF THE JURISDICTION OF ITS INCORPORATION OR ORGANIZATION (AS APPLICABLE),
WITH THE REQUISITE CORPORATE POWER AND AUTHORITY TO OWN AND USE ITS PROPERTIES
AND ASSETS AND TO CARRY ON ITS BUSINESS AS CURRENTLY CONDUCTED.
NEITHER THE
COMPANY NOR