TO RELEASE PURSUANT TO COMPANY
OPTIONS AND COMPANY RESTRICTED STOCK UNITS; AND (II) 906,440 SHARES OF COMMON
STOCK ARE RESERVED FOR FUTURE ISSUANCE UNDER THE COMPANY PURCHASE PLAN.
ALL
SHARES OF COMMON STOCK SUBJECT TO ISSUANCE UNDER THE COMPANY STOCK OPTION PLANS
AND THE COMPANY PURCHASE PLAN, UPON ISSUANCE ON THE TERMS AND CONDITIONS
SPECIFIED IN THE INSTRUMENTS PURSUANT TO WHICH THEY ARE ISSUABLE, WOULD BE DULY
AUTHORIZED AND VALIDLY ISSUED, FULLY PAID AND NONASSESSABLE.
EXCEPT FOR
OUTSTANDING COMPANY OPTIONS AND COMPANY RESTRICTED STOCK UNITS, THERE ARE NO
OUTSTANDING OR AUTHORIZED STOCK APPRECIATION, PHANTOM STOCK, PROFIT
PARTICIPATION OR OTHER SIMILAR RIGHTS WITH RESPECT TO COMPANY.
(C)
OTHER SECURITIES.
EXCEPT AS OTHERWISE SET FORTH IN THIS
SECTION 3.2 AND PURSUANT TO A COMMON STOCK PURCHASE AGREEMENT BETWEEN THE
COMPANY AND BEIJING E-TOWN INTERNATIONAL INVESTMENT AND DEVELOPMENT CO., LTD.
DATED AS OF THE DATE HEREOF (THE "BEIID SPA"), AS OF DECEMBER 31, 2009, THERE
ARE NO SECURITIES, OPTIONS, WARRANTS, CALLS, RIGHTS, COMMITMENTS, AGREEMENTS,
ARRANGEMENTS OR UNDERTAKINGS OF ANY KIND TO WHICH THE COMPANY OR ANY OF ITS
SUBSIDIARIES IS A PARTY OR BY WHICH ANY OF THEM IS BOUND OBLIGATING THE COMPANY
OR ANY OF ITS SUBSIDIARIES TO ISSUE, DELIVER OR SELL, OR CAUSE TO BE ISSUED,
DELIVERED OR SOLD, ADDITIONAL SHARES OF CAPITAL STOCK OR OTHER VOTING SECURITIES
OF THE COMPANY OR ANY OF ITS SUBSIDIARIES, OR OBLIGATING THE
7
COMPANY OR ANY OF ITS SUBSIDIARIES TO ISSUE, GRANT, EXTEND OR ENTER INTO ANY
SUCH SECURITY, OPTION, WARRANT, CALL, RIGHT, COMMITMENT, AGREEMENT, ARRANGEMENT
OR UNDERTAKING. ALL OUTSTANDING SHARES OF COMMON STOCK, ALL OUTSTANDING COMPANY
OPTIONS, ALL COMPANY RESTRICTED STOCK UNITS AND ALL OUTSTANDING SHARES OF
CAPITAL STOCK OF EACH SUBSIDIARY OF THE COMPANY HAVE BEEN ISSUED AND GRANTED IN
COMPLIANCE IN ALL MATERIAL RESPECTS WITH ALL APPLICABLE SECURITIES LAWS AND
OTHER MATERIAL LEGAL REQUIREMENTS.
3.3
Authorization; Non-Contravention.
(A)
AUTHORIZATION.
ALL CORPORATE ACTION ON THE PART OF THE COMPANY
NECESSARY FOR THE AUTHORIZATION, EXECUTION AND DELIVERY OF THIS AGREEMENT AND
THE STOCKHOLDERS RIGHTS AGREEMENT, THE PERFORMANCE OF ALL OBLIGATIONS OF THE
COMPANY HEREUNDER AND THEREUNDER, AND THE AUTHORIZATION, ISSUANCE, SALE AND
DELIVERY OF THE PURCHASE SHARES HAS BEEN TAKEN PRIOR TO THE DATE HEREOF, AND
EACH OF THIS AGREEMENT AND THE STOCKHOLDERS RIGHTS AGREEMENT, WHEN VALIDLY
EXECUTED BY EACH OF THE PURCHASERS, CONSTITUTES A VALID AND LEGALLY BINDING
OBLIGATION OF THE COMPANY, ENFORCEABLE IN ACCORDANCE WITH ITS TERMS, EXCEPT
(I) AS LIMITED BY APPLICABLE BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM
AND OTHER LAWS OF GENERAL APPLICATION AFFECTING THE ENFORCEMENT OF CREDITORS'
RIGHTS GENERALLY, (II) AS LIMITED BY LAWS RELATING TO THE AVAILABILITY OF
SPECIFIC PERFORMANCE, INJUNCTIVE RELIEF OR OTHER EQUITABLE REMEDIES, AND
(III) TO THE EXTENT THE INDEMNIFICATION PROVISIONS CONTAINED IN THE STOCKHOLDERS
RIGHTS AGREEMENT MAY BE LIMITED BY APPLICABLE FEDERAL OR STATE SECURITIES LAWS.
(B)
NON-CONTRAVENTION.
THE EXECUTION, DELIVERY AND PERFORMANCE OF
THIS AGREEMENT AND THE STOCKHOLDERS RIGHTS AGREEMENT BY THE COMPANY AND THE
CONSUMMATION BY THE COMPANY OF THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY
(INCLUDING, WITHOUT LIMITATION, THE ISSUANCE OF THE