EQUITY
SECURITIES OF PARENT HAVE BEEN DULY AUTHORIZED, AND ARE VALIDLY ISSUED, FULLY
PAID AND NONASSESSABLE; (V) THERE ARE NO PREEMPTIVE OR OTHER OUTSTANDING RIGHTS,
OPTIONS, WARRANTS, CONVERSION RIGHTS, STOCK APPRECIATION RIGHTS, REDEMPTION
RIGHTS, REPURCHASE RIGHTS, AGREEMENTS, ARRANGEMENTS OR COMMITMENTS OF ANY
CHARACTER UNDER WHICH PARENT IS OR MAY BECOME OBLIGATED TO ISSUE OR SELL, OR
GIVING ANY PERSON A RIGHT TO SUBSCRIBE FOR OR ACQUIRE, OR IN ANY WAY DISPOSE OF,
ANY SHARES OF PARENT CAPITAL STOCK OR OTHER EQUITY SECURITIES OF PARENT, AND NO
SECURITIES OR OBLIGATIONS EVIDENCING SUCH RIGHTS ARE AUTHORIZED, ISSUED OR
OUTSTANDING; (VI) THE OUTSTANDING PARENT CAPITAL STOCK AND OTHER EQUITY
SECURITIES OF PARENT ARE NOT SUBJECT TO ANY VOTING TRUST AGREEMENT OR OTHER
CONTRACT, AGREEMENT OR ARRANGEMENT RESTRICTING OR OTHERWISE RELATING TO THE
VOTING, DIVIDEND RIGHTS OR DISPOSITION OF SUCH STOCK OR OTHER EQUITY SECURITIES;
(VII) THERE ARE NO PHANTOM STOCK OR SIMILAR RIGHTS PROVIDING ECONOMIC BENEFITS
BASED, DIRECTLY OR INDIRECTLY, ON THE VALUE OR PRICE OF THE PARENT CAPITAL STOCK
OR OTHER EQUITY SECURITIES OF PARENT; (VIII) THERE ARE NOT ANY BONDS,
DEBENTURES, NOTES OR OTHER INDEBTEDNESS OF PARENT HAVING THE RIGHT TO VOTE (OR
CONVERTIBLE INTO, OR EXCHANGEABLE FOR, SECURITIES HAVING THE RIGHT TO VOTE) ON
ANY MATTERS ON WHICH HOLDERS OF THE PARENT CAPITAL STOCK MAY VOTE; AND
(IX) THERE ARE NOT ANY OUTSTANDING CONTRACTUAL OBLIGATIONS OF PARENT OR ANY OF
ITS SUBSIDIARIES TO REPURCHASE, REDEEM OR OTHERWISE ACQUIRE ANY SHARES OF
CAPITAL STOCK OF PARENT.
(C)
AS OF THE CLOSING, THE PURCHASE SHARES (BEFORE ADJUSTMENTS UNDER
SECTION 2.6 OR 2.7) SHALL REPRESENT 16% OF THE TOTAL OUTSTANDING EQUITY
SECURITIES OF
79
PARENT CALCULATED ON A FULLY DILUTED BASIS, AFTER GIVING EFFECT TO THE ISSUANCE
OF THE PURCHASE SHARES AND ASSUMING FOR PURPOSES OF SUCH CALCULATION THE
CONSUMMATION OF THE REDEMPTION UNDER THE PARENT REDEMPTION AGREEMENT BUT WITHOUT
GIVING EFFECT TO ANY ADJUSTMENTS UNDER SECTION 2.6 OR 2.7; PROVIDED, HOWEVER,
THAT EQUITY SECURITIES ISSUED PURSUANT TO CLAUSE (II) OF THE DEFINITION OF
"FULLY DILUTED BASIS" SHALL NOT EXCEED THE PERMITTED PARENT INCENTIVE AWARDS;
PROVIDED, FURTHER, THAT SUCH LIMITATION SHALL NOT APPLY TO ANY EQUITY SECURITIES
ISSUED AS CONTEMPLATED BY CLAUSE (II)(B) OF THE DEFINITION OF "FULLY DILUTED
BASIS."
Section 4.5
Purchase Shares. Upon issuance, the Purchase Shares will
be duly authorized, validly issued, fully paid and nonassessable, and free and
clear of all Encumbrances of any kind whatsoever, including any preemptive
rights, rights of first refusal, call options, subscription rights or any
similar rights under any provision of applicable Law, the charter documents or
bylaws of Parent or any of its Subsidiaries or any Contract to which Parent is a
party or otherwise bound and subject to applicable securities Laws. At the
Closing, Parent will have sufficient authorized but unissued shares of Parent
Capital Stock for Buyer to meet its obligation to cause Parent to deliver the
Purchase Shares under this Agreement. Upon consummation of the Transaction, good
and valid title to the Purchase Shares will pass to the recipients