AND THEREBY
WILL NOT (I) RESULT IN A VIOLATION OF THE ORGANIZATIONAL DOCUMENTS OF SUCH BUYER
OR (II) CONFLICT WITH, OR CONSTITUTE A DEFAULT (OR AN EVENT WHICH WITH NOTICE OR
LAPSE OF TIME OR BOTH WOULD BECOME A DEFAULT) UNDER, OR GIVE TO OTHERS ANY
RIGHTS OF TERMINATION, AMENDMENT, ACCELERATION OR CANCELLATION OF, ANY
AGREEMENT, INDENTURE OR INSTRUMENT TO WHICH SUCH BUYER IS A PARTY, OR (III)
RESULT IN A VIOLATION OF ANY LAW, RULE, REGULATION, ORDER, JUDGMENT OR DECREE
(INCLUDING FEDERAL AND STATE SECURITIES LAWS) APPLICABLE TO SUCH BUYER, EXCEPT
IN THE CASE OF CLAUSES (II) AND (III) ABOVE, FOR SUCH CONFLICTS, DEFAULTS,
RIGHTS OR VIOLATIONS WHICH WOULD NOT, INDIVIDUALLY OR IN THE AGGREGATE,
REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT ON THE ABILITY OF SUCH
BUYER TO PERFORM ITS OBLIGATIONS HEREUNDER.
(J)
RESIDENCY.
SUCH BUYER IS A RESIDENT OF
THAT JURISDICTION SPECIFIED BELOW ITS ADDRESS ON THE SCHEDULE OF BUYERS.
(K)
OWNERSHIP OF COMMON STOCK.
NEITHER SUCH
BUYER NOR ANY OF ITS AFFILIATES BENEFICIALLY OWNS ANY COMMON STOCK OF THE
COMPANY AS OF THE DATE HEREOF.
5
(L)
AGENTS.
SUCH BUYER ACKNOWLEDGES THAT IT
HAS BEEN INFORMED BY THE COMPANY THAT EACH AGENT (AS DEFINED IN SECTION 3(G))
MAKES A MARKET IN THE COMPANY'S SECURITIES AND THAT KAUFMAN BROS. L.P., PROVIDES
RESEARCH COVERAGE ON THE COMPANY.
3.
REPRESENTATIONS AND WARRANTIES OF THE
COMPANY.
The Company represents and warrants to each of the Buyers that:
(A)
ORGANIZATION AND QUALIFICATION.
EXCEPT AS
SET FORTH ON SCHEDULE 3(A), THE COMPANY AND ITS "SUBSIDIARIES" (WHICH FOR
PURPOSES OF THIS AGREEMENT MEANS ANY ENTITY IN WHICH THE COMPANY, DIRECTLY OR
INDIRECTLY, OWNS 50% OR MORE OF THE OUTSTANDING CAPITAL STOCK OR HOLDS AN EQUITY
OR SIMILAR INTEREST REPRESENTING 50% OR MORE OF THE OUTSTANDING EQUITY OR
SIMILAR INTEREST OF SUCH ENTITY) ARE ENTITIES DULY ORGANIZED AND VALIDLY
EXISTING AND, TO THE EXTENT LEGALLY APPLICABLE, IN GOOD STANDING UNDER THE LAWS
OF THE JURISDICTION IN WHICH THEY ARE FORMED, AND HAVE THE REQUISITE POWER AND
AUTHORIZATION TO OWN THEIR PROPERTIES AND TO CARRY ON THEIR BUSINESS AS NOW
BEING CONDUCTED.
EXCEPT AS SET FORTH ON SCHEDULE 3(A), EACH OF THE COMPANY AND
ITS SUBSIDIARIES IS DULY QUALIFIED AS A FOREIGN ENTITY TO DO BUSINESS AND, TO
THE EXTENT LEGALLY APPLICABLE, IS IN GOOD STANDING IN EVERY JURISDICTION IN
WHICH ITS OWNERSHIP OF PROPERTY OR THE NATURE OF THE BUSINESS CONDUCTED BY IT
MAKES SUCH QUALIFICATION NECESSARY, EXCEPT TO THE EXTENT THAT THE FAILURE TO BE
SO QUALIFIED OR BE IN GOOD STANDING WOULD NOT HAVE A MATERIAL ADVERSE EFFECT.
AS USED IN THIS AGREEMENT, "MATERIAL ADVERSE EFFECT" MEANS ANY MATERIAL ADVERSE
EFFECT ON THE BUSINESS, PROPERTIES, ASSETS, OPERATIONS, RESULTS OF OPERATIONS OR
CONDITION (FINANCIAL OR OTHERWISE) OF THE COMPANY AND ITS SUBSIDIARIES, TAKEN AS
A WHOLE, OR ON THE TRANSACTIONS CONTEMPLATED HEREBY AND IN THE SECURITY
DOCUMENTS OR BY THE AGREEMENTS AND INSTRUMENTS TO BE ENTERED INTO IN CONNECTION
HEREWITH OR THEREWITH, OR ON THE AUTHORITY OR ABILITY OF THE