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 IN THAT COMMON STOCK PURCHASE AGREEMENT BETWEEN THE COMPANY AND
THE INVESTORS SET FORTH THEREIN DATED AS OF THE DATE HEREOF, 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 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.
7
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 THE PURCHASER, 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 PURCHASE SHARES) WILL NOT
(I) RESULT IN A VIOLATION OF THE COMPANY'S CERTIFICATE OF INCORPORATION OR
BYLAWS (EACH AS AMENDED TO DATE), (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, INDENTURE OR INSTRUMENT TO WHICH THE COMPANY OR
ANY SUBSIDIARY IS A PARTY, OR (III)