VOTING POWER (OTHER THAN STOCK OR OTHER
OWNERSHIP INTERESTS HAVING SUCH POWER ONLY BY REASON OF THE HAPPENING OF A
CONTINGENCY) TO ELECT A MAJORITY OF THE DIRECTORS OF SUCH CORPORATION, OR OTHER
PERSONS OR ENTITIES PERFORMING SIMILAR FUNCTIONS FOR SUCH PERSON OR ENTITY, ARE
OWNED, DIRECTLY OR INDIRECTLY, BY SUCH PERSON OR ENTITY OR (II) A CORPORATION OR
OTHER ENTITY IN WHICH SUCH PERSON OR ENTITY OWNS, DIRECTLY OR INDIRECTLY, MORE
THAN 50% OF THE EQUITY INTERESTS AT SUCH TIME.
CAPITALIZATION; VOTING RIGHTS.
THE AUTHORIZED CAPITAL STOCK OF THE COMPANY, AS OF THE DATE HEREOF CONSISTS OF
101,000,000 SHARES, OF WHICH 100,000,000 ARE SHARES OF COMMON STOCK, PAR VALUE
$0.01 PER SHARE, 37,876,889 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.
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 NOTES OR THE WARRANTS, OR THE ISSUANCE OF ANY OF
WARRANT SHARES, NOR THE CONSUMMATION OF ANY TRANSACTION CONTEMPLATED HEREBY WILL
RESULT
3
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.
ALL ISSUED AND OUTSTANDING SHARES OF THE COMPANY'S COMMON
STOCK:
(I) HAVE BEEN DULY AUTHORIZED AND VALIDLY ISSUED AND ARE FULLY PAID AND
NON-ASSESSABLE; AND (II) WERE ISSUED IN COMPLIANCE WITH ALL APPLICABLE STATE AND
FEDERAL LAWS CONCERNING THE ISSUANCE OF SECURITIES.
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 NON-ASSESSABLE, 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.
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