BY WHICH THE COMPANY IS OR MAY BECOME
BOUND TO ISSUE ADDITIONAL SHARES OF THE CAPITAL STOCK OF THE COMPANY OR OPTIONS,
SECURITIES OR RIGHTS CONVERTIBLE INTO SHARES OF CAPITAL STOCK OF THE COMPANY.
EXCEPT AS SET FORTH IN THE DISCLOSURE SCHEDULE AND NOTWITHSTANDING ANY RELATED
DISCLOSURE IN ANY SEC FILING, THE COMPANY IS NOT A PARTY TO, AND IT HAS NO
KNOWLEDGE OF, ANY AGREEMENT RESTRICTING THE VOTING OR TRANSFER OF ANY SHARES OF
THE CAPITAL STOCK OF THE COMPANY OTHER THAN TRANSFER RESTRICTIONS IMPOSED TO
SATISFY STATE AND FEDERAL SECURITIES LAWS.
3.3
AUTHORIZATION; NO CONFLICTS; APPROVALS.
3.3.1
THE COMPANY HAS ALL REQUISITE POWER AND AUTHORITY TO
EXECUTE, DELIVER AND PERFORM ITS OBLIGATIONS UNDER THE AGREEMENT, AND ALL
CORPORATE ACTION ON THE PART OF THE COMPANY, ITS STOCKHOLDERS AND ITS DIRECTORS
NECESSARY FOR THE AUTHORIZATION, EXECUTION, DELIVERY AND PERFORMANCE OF THE
AGREEMENT BY THE COMPANY, THE AUTHORIZATION, SALE, ISSUANCE AND DELIVERY OF THE
SHARES, AND THE PERFORMANCE OF ALL OF THE COMPANY'S OBLIGATIONS UNDER THE
AGREEMENT HAS BEEN TAKEN OR WILL BE TAKEN PRIOR TO THE CLOSING DATE. THE
AGREEMENT AND THE RIGHTS AGREEMENT (COLLECTIVELY, THE "STOCK AGREEMENTS"), WHEN
EXECUTED AND DELIVERED BY THE COMPANY, SHALL CONSTITUTE VALID AND BINDING
OBLIGATIONS OF THE COMPANY, ENFORCEABLE IN ACCORDANCE WITH THEIR TERMS, SUBJECT
TO LAWS OF GENERAL APPLICATION RELATING TO BANKRUPTCY, INSOLVENCY AND THE RELIEF
OF DEBTORS AND RULES OF LAW GOVERNING
3
SPECIFIC PERFORMANCE, INJUNCTIVE RELIEF OR OTHER EQUITABLE REMEDIES. THE SHARES,
WHEN ISSUED IN COMPLIANCE WITH THE PROVISIONS OF THIS AGREEMENT, WILL BE VALIDLY
ISSUED, FULLY PAID AND NONASSESSABLE, AND FREE OF ANY LIENS; PROVIDED, HOWEVER,
THAT THE SHARES ARE SUBJECT TO RESTRICTIONS ON TRANSFER UNDER STATE AND/OR
FEDERAL SECURITIES LAWS AND AS SET FORTH IN THIS AGREEMENT AND THE RIGHTS
AGREEMENT. THE BOARD OF DIRECTORS OF THE COMPANY (THE "COMPANY BOARD") HAS
APPROVED AND ADOPTED THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY,
DECLARED THE ADVISABILITY OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND
ADOPTED AND APPROVED THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY,
AND HAS NOT, AS OF THE DATE HEREOF, RESCINDED OR MODIFIED IN ANY RESPECT ANY OF
SUCH ACTIONS.
3.3.2
SUBJECT TO COMPLIANCE WITH THE HART-SCOTT-RODINO
ANTITRUST IMPROVEMENTS ACT OF 1976, AS AMENDED (THE "HSR ACT"), TO THE EXTENT
APPLICABLE TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, THE EXECUTION AND
DELIVERY BY THE COMPANY OF THE STOCK AGREEMENTS DO NOT, AND THE CONSUMMATION OF
THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY WILL NOT, (I) CONFLICT WITH, OR
RESULT IN ANY VIOLATION OF OR BREACH OF ANY PROVISION OF THE CERTIFICATE OF
INCORPORATION OR BYLAWS OF THE COMPANY OR OF ANY SUBSIDIARY, (II) RESULT IN ANY
VIOLATION OR BREACH OF, OR CONSTITUTE (WITH OR WITHOUT NOTICE OR LAPSE OF TIME,
OR BOTH) A DEFAULT UNDER, OR GIVE RISE TO A RIGHT OF TERMINATION, CANCELLATION
OR ACCELERATION OF ANY OBLIGATION OR LOSS OF ANY MATERIAL BENEFIT UNDER ANY
LICENSE, ASSIGNMENT, BOND, DEBENTURE, NOTE, MORTGAGE, PLEDGE, DEED OF TRUST,
LOAN AGREEMENT OR OTHER EVIDENCE OF INDEBTEDNESS, LIEN, INDENTURE, LEASE,