STOCK,
PAR
3
value $0.01 per share, 36,665,322 shares of which are issued and outstanding ,
and 1,000,000 are shares of preferred stock, par value $0.01 per share none of
which shares of preferred stock are issued and outstanding.]
The authorized,
issued and outstanding capital stock of each Subsidiary of the Company is set
forth on Schedule 4.3.
(B)
EXCEPT AS DISCLOSED ON SCHEDULE 4.3, OTHER THAN:
(I) THE SHARES
RESERVED FOR ISSUANCE UNDER THE COMPANY'S STOCK OPTION PLANS; AND (II) SHARES
WHICH MAY BE GRANTED PURSUANT TO THIS AGREEMENT AND THE RELATED AGREEMENTS,
THERE ARE NO OUTSTANDING OPTIONS, WARRANTS, RIGHTS (INCLUDING CONVERSION OR
PREEMPTIVE RIGHTS AND RIGHTS OF FIRST REFUSAL), PROXY OR STOCKHOLDER AGREEMENTS,
OR ARRANGEMENTS OR AGREEMENTS OF ANY KIND FOR THE PURCHASE OR ACQUISITION FROM
THE COMPANY OF ANY OF ITS SECURITIES.
EXCEPT AS DISCLOSED ON SCHEDULE 4.3,
NEITHER THE OFFER, ISSUANCE OR SALE OF ANY OF THE NOTE OR THE WARRANT, OR THE
ISSUANCE OF ANY OF THE WARRANT SHARES, NOR THE CONSUMMATION OF ANY TRANSACTION
CONTEMPLATED HEREBY WILL RESULT IN A CHANGE IN THE PRICE OR NUMBER OF ANY
SECURITIES OF THE COMPANY OUTSTANDING, UNDER ANTI-DILUTION OR OTHER SIMILAR
PROVISIONS CONTAINED IN OR AFFECTING ANY SUCH SECURITIES.
(C)
ALL ISSUED AND OUTSTANDING SHARES OF THE COMPANY'S COMMON STOCK:
(I) HAVE BEEN DULY AUTHORIZED AND VALIDLY ISSUED AND ARE FULLY PAID AND
NONASSESSABLE; AND (II) WERE ISSUED IN COMPLIANCE WITH ALL APPLICABLE STATE AND
FEDERAL LAWS CONCERNING THE ISSUANCE OF SECURITIES.
(D)
THE RIGHTS, PREFERENCES, PRIVILEGES AND RESTRICTIONS OF THE SHARES
OF THE COMMON STOCK ARE AS STATED IN THE COMPANY'S CERTIFICATE OF INCORPORATION
(THE "CHARTER").
THE WARRANT SHARES HAVE BEEN DULY AND VALIDLY RESERVED FOR
ISSUANCE.
WHEN ISSUED IN COMPLIANCE WITH THE PROVISIONS OF THIS AGREEMENT AND
THE COMPANY'S CHARTER, THE SECURITIES WILL BE VALIDLY ISSUED, FULLY PAID AND
NONASSESSABLE, AND WILL BE FREE OF ANY LIENS OR ENCUMBRANCES; PROVIDED, HOWEVER,
THAT THE SECURITIES MAY BE SUBJECT TO RESTRICTIONS ON TRANSFER UNDER STATE
AND/OR FEDERAL SECURITIES LAWS AS SET FORTH HEREIN OR AS OTHERWISE REQUIRED BY
SUCH LAWS AT THE TIME A TRANSFER IS PROPOSED.
5.4
AUTHORIZATION; BINDING OBLIGATIONS.
ALL CORPORATE, PARTNERSHIP OR
LIMITED LIABILITY COMPANY, AS THE CASE MAY BE, ACTION ON THE PART OF THE COMPANY
AND EACH OF ITS SUBSIDIARIES (INCLUDING THEIR RESPECTIVE OFFICERS AND DIRECTORS)
NECESSARY FOR THE AUTHORIZATION OF THIS AGREEMENT AND THE RELATED AGREEMENTS,
THE PERFORMANCE OF ALL OBLIGATIONS OF THE COMPANY AND ITS SUBSIDIARIES HEREUNDER
AND UNDER THE OTHER RELATED AGREEMENTS AT THE CLOSING AND, THE AUTHORIZATION,
SALE, ISSUANCE AND DELIVERY OF THE NOTE AND WARRANT HAS BEEN TAKEN OR WILL BE
TAKEN PRIOR TO THE CLOSING.
THIS AGREEMENT AND THE RELATED AGREEMENTS, WHEN
EXECUTED AND DELIVERED AND TO THE EXTENT IT IS A PARTY THERETO, WILL BE VALID
AND BINDING OBLIGATIONS OF EACH OF THE COMPANY AND EACH OF ITS SUBSIDIARIES,
ENFORCEABLE AGAINST EACH SUCH PERSON OR ENTITY IN ACCORDANCE WITH THEIR TERMS,
EXCEPT:
(A)
AS LIMITED BY APPLICABLE BANKRUPTCY, INSOLVENCY, REORGANIZATION,
MORATORIUM OR OTHER LAWS