BINDING OBLIGATIONS OF THE COMPANY, ENFORCEABLE IN ACCORDANCE WITH
THEIR RESPECTIVE TERMS, SUBJECT TO APPLICABLE BANKRUPTCY, INSOLVENCY,
REORGANIZATION, MORATORIUM, FRAUDULENT TRANSFER OR SIMILAR LAWS AFFECTING
CREDITORS' RIGHTS GENERALLY AND THE GENERAL PRINCIPLES OF EQUITY, REGARDLESS OF
WHETHER CONSIDERED IN A PROCEEDING IN EQUITY OR AT LAW.
NO EVENT HAS OCCURRED
AND NO CONDITION EXISTS WHICH (UPON NOTICE OR THE PASSAGE OF TIME OR BOTH) WOULD
CONSTITUTE, OR GIVE RISE TO: (I) ANY BREACH, VIOLATION, DEFAULT, CHANGE OF
CONTROL OR RIGHT TO CAUSE THE COMPANY TO REPURCHASE OR REDEEM UNDER, (II) ANY
LIEN ON THE ASSETS OF THE COMPANY OR ANY OF ITS SUBSIDIARIES UNDER, (III) ANY
TERMINATION RIGHT OF ANY PARTY, OR ANY LOSS OF ANY RIGHT OR IMPOSITION OF ANY
PENALTY, UNDER OR (IV) ANY CHANGE OR ACCELERATION IN THE RIGHTS OR OBLIGATIONS
OF ANY PARTY UNDER, THE CERTIFICATE OF INCORPORATION OR BYLAWS OR THE
ORGANIZATIONAL DOCUMENTS OF THE COMPANY'S SUBSIDIARIES.
*CONFIDENTIAL TREATMENT REQUESTED
13
3.4
GOVERNMENTAL AUTHORIZATION; THIRD PARTY
CONSENTS.
EXCEPT AS SET FORTH ON SCHEDULE 3.4 OF THE COMPANY DISCLOSURE LETTER
AND, WITH RESPECT TO THE CONVERSION OF THE NOTE, EXCEPT AS REQUIRED UNDER THE
HSR ACT, NO APPROVAL, CONSENT, QUALIFICATION, ORDER, EXEMPTION, AUTHORIZATION OR
OTHER ACTION BY, OR NOTICE TO, OR FILING WITH, ANY GOVERNMENTAL AUTHORITY, OR
ANY OTHER PERSON IN RESPECT OF ANY REQUIREMENT OF LAW, ORDER, CONTRACT OR
OTHERWISE, AND NO LAPSE OF A WAITING PERIOD UNDER A REQUIREMENT OF LAW, IS
NECESSARY OR REQUIRED IN CONNECTION WITH THE EXECUTION, DELIVERY OR PERFORMANCE
(INCLUDING, WITHOUT LIMITATION, THE ISSUANCE, SALE AND DELIVERY OF THE NOTE) BY
THE COMPANY, OR ENFORCEMENT AGAINST THE COMPANY, OF THIS AGREEMENT, THE NOTE AND
EACH OF THE OTHER TRANSACTION AGREEMENTS OR THE CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED THEREBY.
3.5
BINDING EFFECT.
THE COMPANY HAS FULL POWER
AND AUTHORITY TO EXECUTE, DELIVER AND PERFORM THIS AGREEMENT, THE NOTE AND EACH
OF THE OTHER TRANSACTION AGREEMENTS.
THE EXECUTION, DELIVERY AND PERFORMANCE OF
THIS AGREEMENT, THE NOTE AND EACH OF THE OTHER TRANSACTION AGREEMENTS BY SELLER
HAVE BEEN DULY AUTHORIZED AND APPROVED BY THE BOARD OF DIRECTORS AND DO NOT
REQUIRE ANY FURTHER AUTHORIZATION OR CONSENT OF THE COMPANY OR ITS
STOCKHOLDERS.
THIS AGREEMENT HAS BEEN DULY AUTHORIZED, EXECUTED AND DELIVERED
BY THE COMPANY AND IS THE LEGAL, VALID AND BINDING OBLIGATION OF THE COMPANY
ENFORCEABLE IN ACCORDANCE WITH ITS TERMS, AND THE NOTE AND EACH OF THE OTHER
TRANSACTION AGREEMENTS HAS BEEN DULY AUTHORIZED BY THE COMPANY AND UPON
EXECUTION AND DELIVERY BY THE COMPANY WILL BE A LEGAL, VALID AND BINDING
OBLIGATION OF THE COMPANY ENFORCEABLE IN ACCORDANCE WITH ITS TERMS.
3.6
CAPITALIZATION OF THE COMPANY AND ITS
SUBSIDIARIES.
THE AUTHORIZED CAPITAL STOCK OF THE COMPANY CONSISTS OF
(A) 98,500,000 SHARES OF COMMON STOCK (AND IMMEDIATELY FOLLOWING THE FILING OF
AN AMENDMENT TO THE CERTIFICATE OF INCORPORATION PURSUANT TO SECTION 7.1(G),
250,000,000 SHARES OF COMMON STOCK) AND (B) 5,000,000 SHARES OF PREFERRED STOCK,
PAR VALUE $0.01, OF THE COMPANY (THE "PREFERRED STOCK") OF WHICH 1,000,000
SHARES OF PREFERRED STOCK