WHICH ITS OWNERSHIP OR USE OF PROPERTY OR THE NATURE OF THE
BUSINESS CONDUCTED BY IT MAKES SUCH QUALIFICATION NECESSARY, EXCEPT WHERE THE
FAILURE TO BE SO QUALIFIED OR IN GOOD STANDING WOULD NOT HAVE A MATERIAL ADVERSE
EFFECT.
NEITHER THE COMPANY NOR ANY SUBSIDIARY IS IN VIOLATION OF ANY PROVISION
OF ITS RESPECTIVE CERTIFICATE OR ARTICLES OF INCORPORATION, PARTNERSHIP
AGREEMENT, BYLAWS OR OTHER ORGANIZATIONAL OR CHARTER DOCUMENTS, AS THE SAME MAY
HAVE BEEN AMENDED.
4.2
AUTHORIZATION; ENFORCEMENT.
THE COMPANY HAS ALL REQUISITE
CORPORATE POWER AND AUTHORITY TO ENTER INTO AND PERFORM THIS AGREEMENT AND EACH
OF THE OTHER TRANSACTION DOCUMENTS AND TO CONSUMMATE THE TRANSACTIONS
CONTEMPLATED HEREBY AND THEREBY AND TO ISSUE THE SHARES, IN ACCORDANCE WITH THE
TERMS HEREOF AND THEREOF.
THE EXECUTION AND DELIVERY OF THIS AGREEMENT AND EACH
OF THE OTHER TRANSACTION DOCUMENTS BY THE COMPANY AND THE CONSUMMATION BY IT OF
THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY (INCLUDING WITHOUT LIMITATION,
THE ISSUANCE OF THE SHARES) HAVE BEEN DULY AUTHORIZED BY THE COMPANY'S BOARD OF
DIRECTORS AND NO FURTHER CONSENT OR AUTHORIZATION OF THE COMPANY, ITS BOARD OF
DIRECTORS, OR ITS STOCKHOLDERS IS REQUIRED.
THIS AGREEMENT AND EACH OF THE
OTHER TRANSACTION DOCUMENTS HAVE BEEN DULY EXECUTED AND DELIVERED BY THE
COMPANY.
THIS AGREEMENT AND EACH OF THE OTHER TRANSACTION DOCUMENTS WILL
CONSTITUTE UPON EXECUTION AND DELIVERY BY THE COMPANY, A LEGAL, VALID AND
BINDING OBLIGATION OF THE COMPANY ENFORCEABLE AGAINST THE COMPANY IN ACCORDANCE
WITH ITS TERMS, EXCEPT AS SUCH ENFORCEABILITY MAY BE LIMITED BY:
(I) APPLICABLE
BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM OR OTHER SIMILAR LAWS IN
EFFECT THAT LIMIT CREDITORS' RIGHTS GENERALLY; (II) EQUITABLE LIMITATIONS ON THE
AVAILABILITY OF SPECIFIC REMEDIES; (III) PRINCIPLES OF EQUITY (REGARDLESS OF
WHETHER SUCH ENFORCEMENT IS CONSIDERED IN A PROCEEDING IN LAW OR IN EQUITY); AND
(IV) TO THE EXTENT RIGHTS TO INDEMNIFICATION AND CONTRIBUTION MAY BE LIMITED BY
FEDERAL SECURITIES LAWS OR THE PUBLIC POLICY UNDERLYING SUCH LAWS.
4.3
CAPITALIZATION; VALID ISSUANCE OF SHARES AND CONVERSION SHARES.
AS OF THE DATE HEREOF, THE AUTHORIZED CAPITAL STOCK OF THE COMPANY CONSISTS OF
100,000,000 SHARES OF COMMON STOCK, OF WHICH 79,936,996 SHARES ARE ISSUED AND
OUTSTANDING, AND NO SHARES ARE HELD BY THE COMPANY AS TREASURY SHARES, AND
10,000,000 SHARES OF PREFERRED STOCK, OF WHICH NO SHARES ARE ISSUED AND
OUTSTANDING.
ALL OF SUCH OUTSTANDING SHARES OF COMMON STOCK ARE DULY
AUTHORIZED, VALIDLY ISSUED, FULLY PAID AND NONASSESSABLE.
THE SHARES AND THE
CONVERSION SHARES HAVE BEEN DULY AUTHORIZED AND WHEN ISSUED PURSUANT TO THE
TERMS HEREOF WILL BE VALIDLY ISSUED, FULLY PAID AND NONASSESSABLE AND WILL NOT
BE SUBJECT TO ANY ENCUMBRANCES, PREEMPTIVE RIGHTS OR ANY OTHER SIMILAR
CONTRACTUAL RIGHTS OF THE STOCKHOLDERS OF THE COMPANY OR ANY OTHER PERSON.
NO
SHARES OF CAPITAL STOCK OF THE COMPANY ARE SUBJECT TO PREEMPTIVE RIGHTS OF THE
STOCKHOLDERS OF THE COMPANY OR ANY LIENS OR ENCUMBRANCES IMPOSED THROUGH THE
ACTIONS OR FAILURE TO ACT OF THE COMPANY.
AS OF THE DATE OF THIS AGREEMENT, AS
DESCRIBED IN SCHEDULE 4.3 ATTACHED HERETO, (I) THERE