DELIVERY OF THIS AGREEMENT, THE REGISTRATION RIGHTS
AGREEMENT AND THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY AND
THEREBY.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE COMPANY
As an inducement to the Investor to enter into this Agreement, the Company
hereby represents and warrants to the Investor, as of the date hereof and as of
the Closing Date or, if a representation or warranty is made as of a specified
date, as of such date, as follows:
SECTION 3.01.
ORGANIZATION AND
AUTHORITY OF THE COMPANY.
(A)
THE COMPANY AND EACH MATERIAL SUBSIDIARY IS DULY
ORGANIZED, VALIDLY EXISTING, AND IN GOOD STANDING UNDER THE LAWS OF THE
JURISDICTION OF ITS FORMATION, HAS ALL POWER AND AUTHORITY TO CARRY ON ITS
BUSINESS AS NOW BEING CONDUCTED AND TO OWN ITS PROPERTIES AND IS DULY LICENSED
OR QUALIFIED AND IN GOOD STANDING IN EACH OTHER JURISDICTION IN WHICH ITS
PROPERTIES ARE LOCATED OR IN WHICH FAILURE TO QUALIFY WOULD MATERIALLY AND
ADVERSELY AFFECT THE CONDUCT OF ITS BUSINESS.
10
(B)
THE EXECUTION, DELIVERY AND PERFORMANCE BY THE
COMPANY OF THIS AGREEMENT AND THE REGISTRATION RIGHTS AGREEMENT ARE WITHIN THE
COMPANY'S CORPORATE POWER AND HAVE BEEN DULY AUTHORIZED BY ALL NECESSARY
CORPORATE ACTION.
(C)
THIS AGREEMENT AND UPON ITS EXECUTION, THE
REGISTRATION RIGHTS AGREEMENT, CONSTITUTE VALID AND BINDING OBLIGATIONS OF THE
COMPANY, ENFORCEABLE AGAINST THE COMPANY IN ACCORDANCE WITH THEIR TERMS, EXCEPT
TO THE EXTENT ENFORCEABILITY MAY BE LIMITED BY ANY ENFORCEMENT LIMITATION.
SECTION 3.02.
CAPITALIZATION;
OWNERSHIP OF SHARES.
(A)
THE AUTHORIZED CAPITAL STOCK OF THE COMPANY
CONSISTS OF 500,000,000 SHARES OF COMMON STOCK AND 2,000,000 SHARES OF PREFERRED
STOCK, PAR VALUE $1.00 PER SHARE ("PREFERRED STOCK").
AS OF MAY 8, 2009,
99,923,718 SHARES OF COMMON STOCK WERE ISSUED AND OUTSTANDING, ALL OF WHICH ARE
VALIDLY ISSUED, FULLY PAID AND NONASSESSABLE AND WERE NOT ISSUED IN VIOLATION OF
ANY PREEMPTIVE RIGHTS.
EXCEPT FOR ISSUANCES IN THE ORDINARY COURSE OF BUSINESS
CONSISTENT WITH PAST PRACTICE PURSUANT TO THE STOCK INCENTIVE PLANS, (I) SINCE
MAY 8, 2009, THE COMPANY HAS NOT ISSUED OR SOLD ANY SHARES OF COMMON STOCK AND
(II) THERE ARE NO OPTIONS, WARRANTS, CONVERTIBLE SECURITIES OR OTHER RIGHTS,
AGREEMENTS, ARRANGEMENTS OR COMMITMENTS RELATING TO THE SHARES OR OBLIGATING
EITHER THE COMPANY OR ANY SUBSIDIARY TO ISSUE, SELL OR PURCHASE ANY SHARES OF
COMMON STOCK, OR ANY OTHER INTEREST IN, THE COMPANY.
THERE ARE NO SHARES OF
PREFERRED STOCK ISSUED OR OUTSTANDING, AND NONE ARE RESERVED FOR ISSUANCE OTHER
THAN SHARES RESERVED FOR ISSUANCE PURSUANT TO THE RIGHTS AGREEMENT.
(B)
THE ISSUANCE OF THE SHARES HAS BEEN DULY AUTHORIZED
BY ALL NECESSARY CORPORATE ACTION ON THE PART OF THE COMPANY, AND NO APPROVAL OF
THE COMPANY'S STOCKHOLDERS IS REQUIRED UNDER ANY LAW OR UNDER THE REGULATIONS
AND POLICIES OF ANY SECURITIES EXCHANGE IN CONNECTION THEREWITH. UPON THE
ISSUANCE AND SALE OF THE SHARES, SUCH SHARES WILL (A) BE DULY AUTHORIZED BY ALL
NECESSARY CORPORATE ACTION ON THE PART OF THE COMPANY, (B) BE VALIDLY ISSUED,
FULLY PAID AND NONASSESSABLE, AND (C) NOT HAVE BEEN