OR QUALIFIED TO DO BUSINESS IN EACH OTHER JURISDICTION IN WHICH IT OWNS OR
LEASES PROPERTIES, OR CONDUCTS ANY BUSINESS, SO AS TO REQUIRE SUCH
QUALIFICATION, EXCEPT WHERE THE FAILURE TO BE SO LICENSED OR QUALIFIED IN ANY
SUCH JURISDICTION COULD NOT INDIVIDUALLY OR IN THE AGGREGATE REASONABLY HAVE A
MATERIAL ADVERSE EFFECT.
EXCEPT FOR THE LIMITATIONS RELATING TO THE LIENS SET
FORTH IN SCHEDULE 3.03, NO COMPANY SUBSIDIARY IS SUBJECT TO ANY RESTRICTION ON
ITS ABILITY TO MAKE DISTRIBUTIONS TO ITS OWNERS.
SECTION 3.04.
CAPITALIZATION.
(A)
SCHEDULE 3.04(A) SETS FORTH (I) THE
AUTHORIZED CAPITALIZATION OF THE COMPANY, THE NUMBER OF SHARES OF EACH CLASS
ISSUED AND OUTSTANDING AND THE NUMBER OF SHARES RESERVED FOR ISSUANCE IN
CONNECTION WITH THE COMPANY'S STOCK OPTION PLANS OR OTHERWISE, AND (II) ALL
OPTIONS, WARRANTS, RIGHTS TO SUBSCRIBE TO, CALLS, CONTRACTS, UNDERTAKINGS,
ARRANGEMENTS AND COMMITMENTS TO ISSUE WHICH MAY RESULT IN THE ISSUANCE OF STOCK
OF THE COMPANY.
ALL OF THE ISSUED AND OUTSTANDING SHARES OF THE COMPANY'S STOCK
HAVE BEEN AND ALL SHARES RESERVED FOR ISSUANCE WILL ON ISSUANCE BE, DULY AND
VALIDLY AUTHORIZED AND ISSUED AND ARE FULLY PAID AND NON-ASSESSABLE AND ARE NOT
SUBJECT TO ANY PREEMPTIVE RIGHTS.
EXCEPT AS SET FORTH ON SCHEDULE 3.04(A),
PURSUANT TO THIS AGREEMENT, AND AS PROVIDED IN THE CERTIFICATES OF DESIGNATIONS
OF THE SERIES A STOCK AND SERIES B-1 STOCK, (I) NO EQUITY SECURITIES OF THE
COMPANY ARE OR MAY BE REQUIRED TO BE ISSUED BY REASON OF ANY OPTIONS, WARRANTS,
RIGHTS TO SUBSCRIBE TO, CALLS OR COMMITMENTS OF ANY CHARACTER WHATSOEVER, (II)
THERE ARE OUTSTANDING NO SECURITIES OR RIGHTS CONVERTIBLE INTO OR EXCHANGEABLE
FOR SHARES OF ANY STOCK OF THE COMPANY, AND (III) THERE ARE NO CONTRACTS,
COMMITMENTS, UNDERSTANDINGS OR ARRANGEMENTS BY WHICH THE COMPANY IS BOUND TO
ISSUE ADDITIONAL SHARES OF ITS STOCK OR SECURITIES OR RIGHTS CONVERTIBLE INTO OR
EXCHANGEABLE FOR SHARES OF ANY STOCK OF THE COMPANY, OR OPTIONS, WARRANTS OR
RIGHTS TO PURCHASE OR ACQUIRE ANY ADDITIONAL SHARES OF ITS STOCK.
NEITHER THE
COMPANY NOR ANY COMPANY SUBSIDIARY IS SUBJECT TO ANY OBLIGATION (CONTINGENT OR
OTHERWISE) TO REPURCHASE OR OTHERWISE ACQUIRE OR RETIRE ANY OF ITS CAPITAL
9
STOCK.
EXCEPT AS CONTEMPLATED BY THE REGISTRATION RIGHTS AGREEMENT OR AS SET
FORTH ON SCHEDULE 3.04(A), THERE ARE NO CONTRACTS BETWEEN THE COMPANY AND ANY
PERSON GRANTING SUCH PERSON THE RIGHT TO REQUIRE THE COMPANY TO FILE A
REGISTRATION STATEMENT UNDER THE SECURITIES ACT WITH RESPECT TO ANY SECURITIES
OF THE COMPANY OWNED OR TO BE OWNED BY SUCH PERSON OR TO REQUIRE THE COMPANY TO
INCLUDE SUCH SECURITIES IN ANY OTHER REGISTRATION STATEMENT FILED BY THE COMPANY
UNDER THE SECURITIES ACT.
(B)
THE SERIES B-1 SHARES WILL HAVE THE VOTING
POWERS, DESIGNATIONS, PREFERENCES AND RIGHTS, AND THE QUALIFICATIONS,
LIMITATIONS AND RESTRICTIONS THEREOF, SET FORTH IN THE CERTIFICATE OF
DESIGNATIONS.
THE COMPANY HAS RESERVED, OR WILL ON OR BEFORE CLOSING RESERVE,
FOR ISSUANCE THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THE SERIES
B-1 SHARES.
WHEN PAID FOR BY, AND