for all purposes under this Agreement and any Institutional Investors
shall be deemed to be "Investors" for all purposes under this Agreement.
SECTION 3.
REPRESENTATIONS AND WARRANTIES OF THE
COMPANY
Except as set forth in the Disclosure Schedule delivered by the Company to the
Investors at the Initial Closing or any Subsequent Closing, as the case may be,
the Company represents and warrants to the Investors as of the date of this
Agreement (or, if made as of a specified date, as of such date) that:
3.1.
Corporate Organization
(A)
THE COMPANY IS A CORPORATION DULY
ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE STATE OF
DELAWARE.
ATTACHED HERETO AS EXHIBITS C AND D, RESPECTIVELY, ARE TRUE AND
COMPLETE COPIES OF THE RESTATED CERTIFICATE OF INCORPORATION AND BY-LAWS OF THE
COMPANY, AS AMENDED THROUGH THE DATE HEREOF (COLLECTIVELY, THE "ORGANIZATIONAL
DOCUMENTS").
(B)
THE COMPANY HAS ALL REQUISITE CORPORATE
POWER AND AUTHORITY TO CARRY ON ITS BUSINESS AS NOW CONDUCTED.
THE COMPANY HAS
ALL REQUISITE POWER AND AUTHORITY TO EXECUTE AND DELIVER THIS AGREEMENT AND TO
PERFORM ITS OBLIGATIONS HEREUNDER.
(C)
THE COMPANY HAS FILED ALL NECESSARY
DOCUMENTS TO QUALIFY TO DO BUSINESS AS A FOREIGN CORPORATION IN EACH
JURISDICTION IN WHICH THE CONDUCT OF THE COMPANY'S BUSINESS OR THE NATURE OF THE
PROPERTY OWNED REQUIRES SUCH QUALIFICATION, EXCEPT WHERE THE FAILURE TO SO
QUALIFY WOULD NOT BE REASONABLY LIKELY TO HAVE A MATERIAL ADVERSE EFFECT.
3.2.
Subsidiaries
THE COMPANY HAS NO SUBSIDIARIES AND NO EQUITY INTERESTS OR INVESTMENTS IN ANY
PARTNERSHIP, TRUST OR OTHER ENTITY OR ORGANIZATION.
3.3.
Capitalization
(A)
THE AUTHORIZED CAPITAL STOCK OF THE
COMPANY, IMMEDIATELY PRIOR TO THE INITIAL CLOSING, SHALL CONSIST OF (I)
75,000,000 SHARES OF COMMON STOCK AND (II) 10,000,000 SHARES OF PREFERRED STOCK,
OF WHICH 2,714,932 SHARES SHALL BE DESIGNATED AS EXCHANGEABLE
7
PREFERRED STOCK AND 1,000,000 SHARES SHALL BE DESIGNATED AS SERIES A JUNIOR
PARTICIPATING PREFERRED STOCK.
AS OF MARCH 2, 2005, THE ISSUED AND OUTSTANDING
SHARES OF CAPITAL STOCK OF THE COMPANY CONSISTED OF 31,175,783 SHARES OF COMMON
STOCK AND NO SHARES OF PREFERRED STOCK.
(B)
ALL THE OUTSTANDING SHARES OF CAPITAL STOCK
OF THE COMPANY HAVE BEEN DULY AND VALIDLY ISSUED AND ARE FULLY PAID AND
NON-ASSESSABLE, AND WERE ISSUED IN ACCORDANCE WITH THE REGISTRATION OR
QUALIFICATION REQUIREMENTS OF THE SECURITIES ACT AND ANY RELEVANT STATE
SECURITIES LAWS OR PURSUANT TO VALID EXEMPTIONS THEREFROM.
AS OF THE INITIAL
CLOSING DATE, THE SHARES WILL BE DULY AUTHORIZED AND, UPON ISSUANCE, SALE AND
DELIVERY AS CONTEMPLATED BY THIS AGREEMENT, THE SHARES WILL BE VALIDLY ISSUED,
FULLY PAID AND NON-ASSESSABLE SECURITIES OF THE COMPANY.
UPON THEIR ISSUANCE IN
ACCORDANCE WITH THE TERMS OF THE EXCHANGEABLE PREFERRED STOCK, THE SHARES OF
COMMON STOCK ISSUABLE UPON EXCHANGE OF THE EXCHANGEABLE PREFERRED STOCK WILL BE
FREE AND CLEAR OF ANY AND ALL SECURITY INTERESTS, PLEDGES, LIENS, CHARGES,
CLAIMS, OPTIONS, RESTRICTIONS ON TRANSFER, PREEMPTIVE OR SIMILAR RIGHTS, PROXIES
AND VOTING OR OTHER AGREEMENTS, OR OTHER ENCUMBRANCES OF ANY NATURE WHATSOEVER,
EXCEPT FOR THOSE