Common use of Warranties and Representations of the Company Clause in Contracts

Warranties and Representations of the Company. The Company represents and warrants that: (a) The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Washington. (b) The Board has authorized or will, prior to the Closing Date authorize the execution, delivery, and performance of this Agreement and the transactions contemplated hereby and thereby. No other corporate action is necessary to authorize such execution, delivery and performance, and upon such execution and delivery, this Agreement shall constitute a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms. The Board has authorized or will, prior to the Closing Date, authorize the issuance and delivery of the Shares in accordance with this Agreement. (c) The Shares to be issued and sold by the Company pursuant to this Agreement, when issued in accordance with the provisions hereof, will be validly issued by the Company, fully paid and nonassessable shares of the Company, and no shareholder of the Company has any preemptive rights to subscribe for any such Shares. The shares of Common Stock issuable upon conversion of the Shares when issued in accordance with the Statement of Rights and Preferences, will be validly issued by the Company, fully paid and nonassessable shares of the Company. (d) Except with respect to filings made in connection with exemptions from registration under state or federal securities laws, the creation, authorization, issuance, offer and sale of the Shares do not require any consent, approval or authorization of, or filing, registration or qualification with, any governmental authority on the part of the Company or the vote, consent or approval in any manner of the holders of any security of the Company as a condition to the execution and delivery of this Agreement or the creation, authorization, issuance, offer and sale of the Shares. The execution and delivery by the Company of this Agreement and the performance by the Company of its obligations hereunder will not violate (i) the terms and conditions of the Articles or the Bylaws of the Company, or any agreement or instrument to which the Company is a party or by which it is bound or (ii) subject to the accuracy of your representations and warranties contained in Section 5 hereof, any federal or state law.

Warranties and Representations of the Company. The Company represents and warrants that: (a) The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of WashingtonDelaware. Attached hereto as Exhibits C and D, respectively, are true and complete copies of the Certificate of Incorporation and the Bylaws of the Company as in effect on the date hereof. (b) The Company has been recently formed to enter into the Merger Agreement and to consummate the transactions contemplated thereby and has not conducted any business other than in connection therewith and certain start-up activities. As of the Closing Date, the Company will have no assets or liabilities other than those incurred in connection with the Company's incorporation and the Company's start-up activities, and those acquired or assumed pursuant to the Merger Agreement and those acquired or incurred in connection with the transactions contemplated thereby. (c) The execution, delivery and performance by the Company of this Agreement and the Merger Agreement and the consummation of the transactions contemplated hereby and thereby are within the corporate powers of the Company. The Board of Directors of the Company (the "Board") has authorized or will, prior to the Closing Date authorize the execution, delivery, and performance of this Agreement and the Merger Agreement, and each of the transactions contemplated hereby and thereby. No other corporate action is necessary to authorize such execution, delivery and performance, and upon such execution and delivery, each of this Agreement and the Merger Agreement shall constitute a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms. The Board has authorized or will, prior to the Closing Date, authorize the issuance and delivery of the Shares in accordance with this Agreement. (cd) The Shares to be issued and sold by the Company pursuant to this Agreement, when issued in accordance with the provisions hereof, will be validly issued by the Company, fully paid and nonassessable shares of the Company, upon delivery thereof, the Investors will acquire good title to the Shares, free and clear of any lien or claim of any kind, other than as contemplated by this Agreement and the Stockholders Agreement or any liens incurred by the Investors, and no shareholder stockholder of the Company has any preemptive rights to subscribe for any such Shares. The shares of Common Stock issuable upon conversion of the Shares will be, when issued in accordance with the Statement terms of Rights the Amended and PreferencesRestated Certificate, will be validly issued by the Company, fully paid and nonassessable shares of the Company, upon delivery thereof, the Investors will acquire good title to the shares of Common Stock, free and clear of any lien or claim of any kind, other than as contemplated by this Agreement and the Stockholders Agreement or any liens incurred by the Investors, and no stockholder of the Company will have any preemptive rights to subscribe for any such shares. (de) Except for the filing of the Amended and Restated Certificate with respect to the Secretary of State of the State of Delaware and for filings made in connection with exemptions from registration by the Investors, if any, under state or federal securities lawsthe ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, the creation, authorization, issuance, offer and sale of the Shares do not require any consent, approval or authorization of, or filing, registration or qualification with, any governmental authority on the part of the Company or the vote, consent or approval in any manner of the holders of any security Security (as hereinafter defined) of the Company as a condition to the execution and delivery of this Agreement or the creation, authorization, issuance, offer and sale of the Shares. The execution and delivery by the Company of this Agreement and the Merger Agreement and the performance by the Company of its obligations hereunder and thereunder will not violate (i) the terms and conditions of the Articles Certificate of Incorporation or the Bylaws of the Company, or any agreement or instrument to which the Company is a party or by which it is bound or (ii) subject to the accuracy of your the Investors' representations and warranties contained in Section 5 hereof, any federal or state law. (f) Immediately prior to the Closing, the outstanding capital stock of the Company will consist of one share of Common Stock. Immediately after the Closing, the outstanding capital stock of the Company will consist of one share of Common Stock and the Shares. Except as set forth in this Section 4(f) or the Amended and Restated Certificate and except for options to be made available to the management of the Company there are, and immediately after the Closing there will be, no outstanding (i) shares of capital stock or voting securities of the Company, (ii) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities of the Company, (iii) options or other rights to acquire from the Company, or other obligations of the Company to issue any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of the Company or (iv) obligations of the Company to repurchase or otherwise acquire or retire any shares of capital stock or any convertible securities, rights or options of the type described in clause (i), (ii), or (iii). (g) Other than this Agreement, the Merger Agreement, the Stockholders Agreement and the Registration Rights Agreement, no agreement or other arrangement regarding any class of capital stock of the Company exists between the Company, or any of its affiliates and any Person. The Company is not a party to, has not agreed to be a party to, and does not plan to become a party to any agreement or arrangement with any affiliate, stockholder or other person or entity who will become a stockholder of the Company in connection with the transactions contemplated by the Merger Agreement and this Agreement, which has not been disclosed to each Investor. (h) There is no investment banker, broker or finder which has been retained by, will be retained by or is authorized to act on behalf of the Company who will be entitled to any fee or commission from the Target or the Company upon consummation of the transactions contemplated by this Agreement. (i) Neither Company, Merger Sub nor any executive officer or director of Company or Merger Sub has acquired any shares of Target Common Stock (or any security exchangeable for or convertible into such shares) since January 30, 1998 at a price in excess of the Per Share Amount (as defined in the Merger Agreement.

Warranties and Representations of the Company. The Except as set forth in the attached Schedule of Exceptions, (“Schedule”) or in the Current Securities Filings, the Company hereby represents and warrants thatto Investor as follows: (a) The Company is a corporation duly organized, incorporated validly existing and in good standing under the laws of New Jersey and has all requisite corporate authority to own, lease and operate its properties and assets and to carry on its business as now being conducted. The Company is duly qualified or licensed as a foreign corporation and is in good standing in all jurisdictions where the State nature of Washingtonits business or property makes such qualification or licensing necessary and where the failure to do so would have a material adverse effect on its condition (financial or otherwise), business, properties, assets, liabilities (including contingent liabilities), results of operations or current prospects of the Company and its subsidiaries, taken as a whole (hereinafter a “Material Adverse Effect”). (b) The Company will have, at the Closing Date, all requisite legal and corporate power to execute and deliver this Agreement, the Registration Rights Agreement and the Investor Rights Agreement (the Registration Rights Agreement and the Investor Rights Agreement are hereinafter collectively referred to as the “Related Agreements”) and to consummate any other transactions contemplated by the terms of this Agreement and the Related Agreements, including the delivery of certificate evidencing the Shares being purchased and to carry out and perform its obligations under the terms of this Agreement and the Related Agreements. (c) (i) The execution and delivery of the Agreement and Related Agreements by the Company and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action and no further consent or authorization of the Company or its Board has of Directors or stockholders is required, and (ii) the Agreement and Related Agreements have been duly executed and delivered by the Company, and at the Closing shall constitute valid and binding obligations of the Company enforceable against the Company in accordance with their respective terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, liquidation, conservatorship, receivership or similar laws relating to, or affecting generally the enforcement of, creditor’s rights and remedies or by other equitable principles of general application. (d) The authorized or will, capital stock of the Company is as set forth in the Current Securities Filings. Immediately prior to the Closing Date authorize of this transaction and a similar transaction with an affiliate of Purchaser, there were 13,636,358 shares of Common Stock outstanding and an additional 203,030 shares of Common Stock will be issued in a private transaction closing contemporaneously with the transactions contemplated hereby. Except as set forth in this Agreement, the Schedule or the Current Securities Filings, no options, warrants, subscriptions or purchase rights of any nature to acquire from the Company shares of capital stock or other securities are authorized, issued or outstanding, nor is the Company obligated under its charter documents or under any agreement by which the Company is bound to issue shares of its capital stock or other securities. There are no restrictions on the transfer of shares of capital stock of the Company other than those imposed by relevant federal and state securities laws and as otherwise contemplated by this Agreement. To the Company’s best knowledge, there are no agreements, understandings, trusts or other collaborative arrangements or understandings concerning the voting of the capital stock of the Company. (e) The execution, delivery, delivery and performance of this Agreement and the transactions contemplated hereby and thereby. No other corporate action is necessary to authorize such execution, delivery and performance, and upon such execution and delivery, this Agreement shall constitute a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms. The Board has authorized or will, prior to the Closing Date, authorize the issuance and delivery of the Shares in accordance with this Agreement. (c) The Shares to be issued and sold Related Agreements by the Company pursuant to this Agreement, when issued in accordance with and the provisions hereof, will be validly issued by the Company, fully paid and nonassessable shares of the Company, and no shareholder of the Company has any preemptive rights to subscribe for any such Shares. The shares of Common Stock issuable upon conversion of the Shares when issued in accordance with the Statement of Rights and Preferences, will be validly issued by the Company, fully paid and nonassessable shares of the Company. (d) Except with respect to filings made in connection with exemptions from registration under state or federal securities laws, the creation, authorization, issuance, offer and sale of the Shares do not require any consent, approval or authorization of, or filing, registration or qualification with, any governmental authority on the part of the Company or the vote, consent or approval in any manner of the holders of any security of the Company as a condition to the execution and delivery of this Agreement or the creation, authorization, issuance, offer and sale of the Shares. The execution and delivery consummation by the Company of this Agreement the transactions contemplated herein and the performance by the Company of its obligations hereunder therein do not and will not violate (i) the terms and conditions violate any provision of the Company’s Articles of Incorporation or the Bylaws Bylaws, (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, mortgage, deed of trust, indenture, note, bond, license, lease agreement, instrument or obligation to which the Company, or any of its subsidiaries is a party, (iii) create or impose a lien, charge or encumbrance on any property of the Company under any agreement or instrument any commitment to which the Company or any of its subsidiaries is a party or by which it the Company or any of its subsidiaries is bound or by which any of their respective properties or assets are bound, or (iv) result in a violation of any federal, state, local or other foreign statute, rule, regulation, order, judgment or decree (including any federal or state securities laws and regulations) applicable to the Company or any of its subsidiaries or by which any property or asset of the Company or any of its subsidiaries are bound or affected, except, in all cases, for such conflicts, defaults, termination, amendments, accelerations, cancellations and violations as would not, individually or in the aggregate, have a Material Adverse Effect. (f) The financial statements of the Company comply as to form in all material respects with applicable accounting requirements under GAAP or other applicable rules and regulations with respect thereto including the rules and regulations of the Securities and Exchange Commission (“SEC”). Such financial statements have been prepared in accordance with GAAP applied on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto or (ii) subject in the case of unaudited interim statements, to the accuracy extent they may not include footnotes or may be condensed or summary statements), and fairly present in all material respects the financial position of your representations the Company and warranties its subsidiaries as of the dates thereof and the results of operations and cash flows for the 3 periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). For purposes hereof, the term “GAAP” shall mean the United States Generally Accepted Accounting Principles as those conventions, rules and procedures are determined by the Financial Accounting Standard Board and its predecessor or successor agencies. (g) The Company has no liabilities, obligations, claims or losses (whether liquidated or unliquidated, secured or unsecured, absolute, accrued, contingent or otherwise) that would be required to be disclosed on a balance sheet of the Company or any subsidiary (including the notes thereto) in conformity with GAAP which are not disclosed in the Schedule, other than those incurred in the ordinary course of the Company’s business since January 31, 2004 and which, individually or in the aggregate, do not or would not have a Material Adverse Effect on the Company. (h) The Company has all franchises, permits, licenses, consents and other governmental or regulatory authorizations and approvals necessary for the conduct of its business as now being conducted by it unless the failure to possess such franchises, permits, licenses, consents and other governmental or regulatory authorizations and approvals, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. (i) The Company has filed all documents that the Company was required to file under the Securities Exchange Act of 1934 as amended (the “Exchange Act”) during the 36 months preceding the date of this Agreement (collectively, the “Securities Filings”), and those Securities Filings, as amended, complied as to form in all material respects with the SEC’s requirements as of their respective filing dates, and the information contained therein as of the date thereof did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading. (j) The Company has complied and will comply with all applicable federal and state securities laws in connection with the offer, issuance and sale of all securities of the Company, including the Shares. Neither the Company nor anyone acting on its behalf, directly or indirectly, has or will sell, offer to sell or solicit offers to buy the Shares or similar securities to, or solicit offers with respect thereto from, or enter into any preliminary conversations or negotiations relating thereto with, any person (other than the Investor and Sky Capital Holdings Ltd.), so as to bring the issuance and sale of the Shares under the registration provisions of the Securities Act and applicable state securities laws. Neither the Company nor any of its affiliates, nor any person acting omits or their behalf, has engaged in any form of general solicitation or general advertising (within the meaning of Regulation D under the Securities Act) in connection with the offer or sale of the Shares. (k) Since January 31, 2004, there has not been: any change in the assets, liabilities, financial condition or operating results of he Company from that reflected in the Current Securities Filings, including the financial statements contained therein, except changes in the ordinary course of business that have not been, in the aggregate, materially adverse. (l) Except as reflected in the Current Securities Filings, there are no actions, suits, proceedings or investigations pending or, to the Company’s knowledge, threatened against, the Company or its properties (not, to the Company’s knowledge against any of the officers or directors of the Company) before any court, arbitrator or governmental agency which, in the case of actions, suits, proceedings or investigations pending or threatened against officers or directors of the Company, either in any case or in the aggregate, might have a Material Adverse Effect on the Company or its business and properties, and none of which questions the validity of the Agreement, the right of the Company to enter into the Agreement or the Related Agreements or consummate the transactions contemplated hereby or thereby, or any action taken or to be taken in connection herewith, nor is the Company aware that there is a reasonable basis for any of the foregoing. (m) The Company has not incurred, and will not incur, directly or indirectly, as a result of any action taken by the Company, any liability for brokerage or finder’s fees or agent’s commissions or any similar charges in connection with this Agreement and the Related Agreements. (n) The Company has fully provided Investor with all the information which Investor has requested for deciding whether to acquire the Shares and all information which the Company believes is reasonably necessary to enable Investor to make such decision. No representation or warranty of the Company contained in Section 5 hereofthis Agreement and the Related Agreements and the exhibits and schedules attached hereto and thereto, any federal certificate furnished or to be furnished to Investor at the Closing or other written information furnished to the Investor or their counsel in connection with the transactions contemplated by this Agreement and the Related Agreements contains any untrue statement of a material fact or omits to state law.a material fact necessary in order to make the statements contained herein or therein not misleading in light of the circumstances under which they were made. There is no fact known to the Company that has not been disclosed herein or in the Related Agreements, or in any other agreement, document or written statement furnished by the Company to the Investor in connection with the transactions contemplated hereby and thereby which is specific to the Company, as opposed to the industry in which the Company operates, and which materially adversely affects or is reasonably likely to materially and adversely affect the business, properties, assets or financial condition of the Company

Warranties and Representations of the Company. The Company represents and --------------------------------------------- warrants that: (a) The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of WashingtonDelaware. Annexed hereto as Exhibits A and B, respectively, are true and complete copies of the Certificate of Incorporation (including the Certificate of Designation) and the Amended Bylaws as in effect on the date hereof. (b) The Board of Directors of the Company (the "Board") has authorized or will, prior to the Closing Date authorize the execution, delivery, and performance of this Agreement Agreement, and each of the transactions contemplated hereby and therebyhereby. No other corporate action is necessary to authorize such execution, delivery and performance, and upon such execution and delivery, this Agreement shall constitute a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms. The Board has authorized or will, prior to the Closing Date, authorize the issuance and delivery of the Shares Securities in accordance with this Agreement. (c) The Shares and Warrants to be issued and sold by the Company pursuant to this Agreement, when issued in accordance with the provisions hereof, will be validly issued by the Company, fully paid and nonassessable shares and fully paid and duly executed warrants, respectively, of the Company, and no shareholder . Upon issuance in accordance with the terms of the Company has any preemptive rights to subscribe for any such Shares. The Warrants, the shares of Common Stock issuable upon conversion the exercise of the Shares when issued in accordance with the Statement of Rights and Preferences, Warrants will be duly authorized, validly issued by the Company, fully paid and nonassessable shares of the Company. (d) Except with respect to filings made in connection with exemptions from registration under state or federal securities lawsas has been obtained, the creation, authorization, issuance, offer and sale of the Shares Securities do not require any consent, approval or authorization of, or filing, registration or qualification with, any governmental authority on the part of the Company or the vote, consent or approval in any manner of the holders of any security (as defined in Section 2(1) of the Securities Act) of the Company as a condition to the execution and delivery of this Agreement or the creation, authorization, issuance, offer and sale of the SharesSecurities. The execution and delivery by the Company of this Agreement and the performance by the Company of its obligations hereunder will not violate (i) the terms and conditions of the Articles Certificate of Incorporation or the Amended Bylaws of the Company, or any agreement or instrument to which the Company is a party or by which it is bound or (ii) subject to the accuracy of your representations and warranties contained in Section 5 hereof, any federal or state law.

Warranties and Representations of the Company. The Company represents and warrants that: (a) The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of WashingtonDelaware. Annexed hereto as Exhibits A and B, respectively, are true and complete copies of the Certificate of Incorporation and the Bylaws as in effect on the date hereof. (b) The Company has been recently formed to enter into the Asset Purchase Agreement and to consummate the transactions contemplated thereby and has not conducted any business other than in connection therewith and certain start-up activities. As of the Closing Date, the Company will have no assets or liabilities other than those incurred in connection with the Company's incorporation and the Company's start-up activities, and those acquired or assumed pursuant to the Asset Purchase Agreement and those acquired or incurred in connection with the transactions contemplated thereby. (c) The Board of Directors of the Company (the "Board") has authorized or will, prior to the Closing Date authorize the execution, delivery, and performance of this Agreement Agreement, and each of the transactions contemplated hereby and therebyhereby. No other corporate action is necessary to authorize such execution, delivery and performance, and upon such execution and delivery, this Agreement shall constitute a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms. The Board has authorized or will, prior to the Closing Date, authorize the issuance and delivery of the Shares in accordance with this Agreement. (cd) The Shares to be issued and sold by the Company pursuant to this Agreement, when issued in accordance with the provisions hereof, will be validly issued by the Company, fully paid and nonassessable shares of the Company, and no shareholder stockholder of the Company has any preemptive rights to subscribe for any such Shares. The shares of Common Stock issuable upon conversion of the Shares when issued in accordance with the Statement of Rights and Preferences, will be validly issued by the Company, fully paid and nonassessable shares of the Company. (de) Except with respect to filings made in connection with exemptions from registration under state or federal securities laws, the The creation, authorization, issuance, offer and sale of the Shares do not require any consent, approval or authorization of, or filing, registration or qualification with, any governmental authority on the part of the Company or the vote, consent or approval in any manner of the holders of any security Security (as hereinafter defined) of the Company as a condition to the execution and delivery of this Agreement or the creation, authorization, issuance, offer and sale of the Shares. The execution and delivery by the Company of this Agreement and the performance by the Company of its obligations hereunder will not violate (i) the terms and conditions of the Articles Certificate of Incorporation or the Bylaws of the Company, or any agreement or instrument to which the Company is a party or by which it is bound or (ii) subject to the accuracy of your representations and warranties contained in Section 5 hereof, any federal or state law.

Warranties and Representations of the Company. The Company represents and warrants that: (a) The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Washington. (b) The Board has authorized or will, prior to the Closing Date authorize the execution, delivery, and performance of this Agreement and the transactions contemplated hereby and thereby. No other corporate action is necessary to authorize such execution, delivery and performance, and upon such execution and delivery, this Agreement shall constitute a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms. The Board has authorized or will, prior to the Closing Date, authorize the issuance and delivery of the Shares in accordance with this Agreement. (c) The Shares to be issued and sold by the Company pursuant to this Agreement, when issued in accordance with the provisions hereof, will be validly issued by the Company, fully paid and nonassessable shares of the Company, and no shareholder of the Company has any preemptive rights to subscribe for any such Shares. The shares of Common Stock issuable upon conversion of the Shares when issued in accordance with the Statement Certificate of Rights and PreferencesDesignation, will be validly issued by the Company, fully paid and nonassessable shares of the Company. (d) Except with respect to filings made in connection with exemptions from registration under state or federal securities laws, the creation, authorization, issuance, offer and sale of the Shares do not require any consent, approval or authorization of, or filing, registration or qualification with, any governmental authority on the part of the Company or the vote, consent or approval in any manner of the holders of any security of the Company as a condition to the execution and delivery of this Agreement or the creation, authorization, issuance, offer and sale of the Shares. The execution and delivery by the Company of this Agreement and the performance by the Company of its obligations hereunder will not violate (i) the terms and conditions of the Articles or the Bylaws of the Company, or any agreement or instrument to which the Company is a party or by which it is bound or (ii) subject to the accuracy of your representations and warranties contained in Section 5 hereof, any federal or state law.