ORDINARY COURSE OF THE COMPANY'S OR ITS SUBSIDIARIES' RESPECTIVE
BUSINESSES. THE COMPANY HAS FURNISHED TO THE BUYERS TRUE, CORRECT AND COMPLETE
COPIES OF THE COMPANY'S CERTIFICATE OF INCORPORATION, AS AMENDED AND AS IN
EFFECT ON THE DATE HEREOF (THE "CERTIFICATE OF INCORPORATION"), AND THE
COMPANY'S BYLAWS, AS AMENDED AND AS IN EFFECT ON THE DATE HEREOF (THE "BYLAWS"),
AND THE TERMS OF ALL SECURITIES CONVERTIBLE INTO, OR EXERCISABLE OR EXCHANGEABLE
FOR, SHARES OF COMMON STOCK AND THE MATERIAL RIGHTS OF THE HOLDERS THEREOF IN
RESPECT THERETO. SCHEDULE 3(R) SETS FORTH THE SHARES OF COMMON STOCK OWNED
BENEFICIALLY OR OF RECORD AND COMMON STOCK EQUIVALENTS (AS DEFINED BELOW) HELD
BY EACH DIRECTOR AND EXECUTIVE OFFICER.
12
(S)
INDEBTEDNESS AND OTHER CONTRACTS. EXCEPT AS
SET FORTH IN SCHEDULE 3(S), NEITHER THE COMPANY NOR ANY OF ITS SUBSIDIARIES (I)
HAS ANY OUTSTANDING INDEBTEDNESS (AS DEFINED BELOW), (II) IS A PARTY TO ANY
CONTRACT, AGREEMENT OR INSTRUMENT, THE VIOLATION OF WHICH, OR DEFAULT UNDER
WHICH, BY THE OTHER PARTY(IES) TO SUCH CONTRACT, AGREEMENT OR INSTRUMENT COULD
REASONABLY BE EXPECTED TO RESULT IN A MATERIAL ADVERSE EFFECT, (III) IS IN
MATERIAL VIOLATION OF ANY TERM OF OR IN MATERIAL DEFAULT UNDER ANY MATERIAL
CONTRACT, AGREEMENT OR INSTRUMENT RELATING TO ANY INDEBTEDNESS, OR (IV) IS A
PARTY TO ANY CONTRACT, AGREEMENT OR INSTRUMENT RELATING TO ANY INDEBTEDNESS, THE
PERFORMANCE OF WHICH, IN THE JUDGMENT OF THE COMPANY'S OFFICERS, HAS OR IS
EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT. SCHEDULE 3(S) PROVIDES A DETAILED
DESCRIPTION OF THE MATERIAL TERMS OF ANY SUCH OUTSTANDING INDEBTEDNESS. FOR
PURPOSES OF THIS AGREEMENT: (X) "INDEBTEDNESS" OF ANY PERSON MEANS, WITHOUT
DUPLICATION (A) ALL INDEBTEDNESS FOR BORROWED MONEY, (B) ALL OBLIGATIONS ISSUED,
UNDERTAKEN OR ASSUMED AS THE DEFERRED PURCHASE PRICE OF PROPERTY OR SERVICES
(INCLUDING, WITHOUT LIMITATION, "CAPITAL LEASES" IN ACCORDANCE WITH GENERALLY
ACCEPTED ACCOUNTING PRINCIPLES) (OTHER THAN TRADE PAYABLES ENTERED INTO IN THE
ORDINARY COURSE OF BUSINESS), (C) ALL REIMBURSEMENT OR PAYMENT OBLIGATIONS WITH
RESPECT TO LETTERS OF CREDIT, SURETY BONDS AND OTHER SIMILAR INSTRUMENTS, (D)
ALL OBLIGATIONS EVIDENCED BY NOTES, BONDS, DEBENTURES OR SIMILAR INSTRUMENTS,
INCLUDING OBLIGATIONS SO EVIDENCED INCURRED IN CONNECTION WITH THE ACQUISITION
OF PROPERTY, ASSETS OR BUSINESSES, (E) ALL INDEBTEDNESS CREATED OR ARISING UNDER
ANY CONDITIONAL SALE OR OTHER TITLE RETENTION AGREEMENT, OR INCURRED AS
FINANCING, IN EITHER CASE WITH RESPECT TO ANY PROPERTY OR ASSETS ACQUIRED WITH
THE PROCEEDS OF SUCH INDEBTEDNESS (EVEN THOUGH THE RIGHTS AND REMEDIES OF THE
SELLER OR BANK UNDER SUCH AGREEMENT IN THE EVENT OF DEFAULT ARE LIMITED TO
REPOSSESSION OR SALE OF SUCH PROPERTY), (F) ALL MONETARY OBLIGATIONS UNDER ANY
LEASING OR SIMILAR ARRANGEMENT WHICH, IN CONNECTION WITH GENERALLY ACCEPTED
ACCOUNTING PRINCIPLES, CONSISTENTLY APPLIED FOR THE PERIODS COVERED THEREBY, IS
CLASSIFIED AS A CAPITAL LEASE, (G) ALL INDEBTEDNESS REFERRED TO IN CLAUSES (A)
THROUGH (F) ABOVE SECURED BY (OR FOR WHICH THE HOLDER OF SUCH INDEBTEDNESS HAS
AN EXISTING RIGHT, CONTINGENT OR OTHERWISE, TO BE SECURED BY) ANY MORTGAGE,
LIEN, PLEDGE, CHARGE, SECURITY INTEREST OR OTHER ENCUMBRANCE UPON OR