REQUIRE NO CONSENT, APPROVAL, ORDER, AUTHORIZATION OR ACTION BY OR IN
RESPECT OF, OR FILING WITH, ANY GOVERNMENTAL AUTHORITY, EXCEPT THAT THE COMPANY
MAKES NO REPRESENTATION OR WARRANTIES REGARDING THE HSR ACT.
SECTION 4.4
NON-CONTRAVENTION; CONSENTS.
EXCEPT AS DISCLOSED IN
SCHEDULE 4.4, THE EXECUTION, DELIVERY AND PERFORMANCE BY DS LLC OF THIS
AGREEMENT AND EACH ANCILLARY AGREEMENT TO WHICH DS LLC WILL BE A PARTY AT THE
CLOSING, AND THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY AND
THEREBY DO NOT AND WILL NOT AT THE CLOSING (I) VIOLATE THE CERTIFICATE OF
FORMATION OF DS LLC OR THE DS OPERATING AGREEMENT, (II) VIOLATE ANY LAW OR
ORDER, (III) REQUIRE ANY FILING WITH OR THE ISSUANCE OF ANY PERMIT, CONSENT OR
APPROVAL OF, OR THE GIVING OF ANY NOTICE TO, ANY PERSON (INCLUDING FILINGS,
CONSENTS OR APPROVALS REQUIRED UNDER ANY PERMITS OF DS LLC OR ANY LICENSES TO
WHICH DS LLC IS A PARTY) EXCEPT THAT THE COMPANY MAKES NO REPRESENTATION OR
WARRANTIES REGARDING THE HSR ACT, (IV) RESULT IN A VIOLATION OR BREACH OF,
CONSTITUTE (WITH OR WITHOUT DUE NOTICE OR LAPSE OF TIME OR BOTH) A DEFAULT
UNDER, OR GIVE RISE TO ANY RIGHT OF TERMINATION, CANCELLATION OR ACCELERATION OF
ANY RIGHT OR OBLIGATION OF THE COMPANY OR TO A LOSS OF ANY BENEFIT TO WHICH THE
COMPANY IS ENTITLED UNDER, ANY CONTRACT, AGREEMENT OR OTHER INSTRUMENT BINDING
UPON THE COMPANY OR ANY LICENSE, FRANCHISE, PERMIT OR OTHER SIMILAR
AUTHORIZATION HELD BY THE COMPANY, OR (V) RESULT IN THE CREATION OR IMPOSITION
OF ANY LIEN (OTHER THAN PERMITTED LIENS) ON ANY OWNERSHIP OR LEASEHOLD INTEREST
IN ANY ASSET OF THE COMPANY, EXCEPT TO THE EXTENT THAT ANY OF THE FOREGOING
WOULD NOT HAVE A MATERIAL ADVERSE EFFECT.
SECTION 4.5
CAPITALIZATION.
THE AUTHORIZED CAPITAL STOCK OF DS LLC CONSISTS
OF 100 COMMON UNITS, ALL OF WHICH ARE ISSUED AND OUTSTANDING AND OWNED OF RECORD
AS SET FORTH ON SCHEDULE 4.5.
ALL OF THE CAPITAL STOCK OF DS LLC (THE "DS
UNITS") ARE DULY AUTHORIZED, VALIDLY ISSUED AND OUTSTANDING, FULLY PAID AND
NONASSESSABLE, AND WERE ISSUED, EXCEPT AS SET FORTH IN THE DS OPERATING
AGREEMENT, FREE OF PREEMPTIVE RIGHTS.
EXCEPT AS SET FORTH IN THE DS OPERATING
AGREEMENT, THERE ARE NO OPTIONS, WARRANTS, PURCHASE RIGHTS, SUBSCRIPTION RIGHTS,
CONVERSION RIGHTS, EXCHANGE RIGHTS, CONVERTIBLE SECURITIES OR OTHER RIGHTS,
AGREEMENT, ARRANGEMENTS OR COMMITMENTS OF ANY CHARACTER RELATING TO THE DS UNITS
OR OBLIGATING DS LLC TO ISSUE, SELL OR OTHERWISE CAUSE TO BECOME OUTSTANDING ANY
SHARES OF CAPITAL STOCK.
THERE ARE NO OUTSTANDING CONTRACTUAL OBLIGATIONS OF DS
LLC TO REPURCHASE, REDEEM OR OTHERWISE ACQUIRE ANY SHARES OF, OR INTERESTS IN,
DS LLC OR TO PROVIDE FUNDS TO, OR MAKE ANY INVESTMENT (IN THE FORM OF A LOAN,
CAPITAL CONTRIBUTION OR OTHERWISE) IN, ANY OTHER PERSON.
EXCEPT AS MAY BE SET
FORTH IN THE DS OPERATING AGREEMENT, THERE ARE NO OUTSTANDING OR AUTHORIZED
STOCK APPRECIATION, PHANTOM STOCK PARTICIPATION OR SIMILAR RIGHTS WITH RESPECT
TO DS LLC.
18
SECTION 4.6
SUBSIDIARIES.
EXCEPT AS DISCLOSED IN SCHEDULE