THE
APPROPRIATE FEDERAL, STATE OR FOREIGN REGULATORY AUTHORITIES NECESSARY TO
CONDUCT THEIR RESPECTIVE BUSINESSES, EXCEPT WHERE THE FAILURE TO POSSESS SUCH
CERTIFICATES, AUTHORIZATIONS OR PERMITS WOULD NOT HAVE, INDIVIDUALLY OR IN THE
AGGREGATE, A MATERIAL ADVERSE EFFECT, AND NEITHER THE COMPANY NOR ANY SUCH
SUBSIDIARY HAS RECEIVED ANY NOTICE OF PROCEEDINGS RELATING TO THE REVOCATION OR
MODIFICATION OF ANY SUCH CERTIFICATE, AUTHORIZATION OR PERMIT.
(N)
EQUITY CAPITALIZATION.
AS OF THE DATE
HEREOF, THE NUMBER OF SHARES AND TYPE OF ALL AUTHORIZED, ISSUED, AND OUTSTANDING
CAPITAL STOCK OF THE COMPANY, AND ALL SHARES OF COMMON STOCK RESERVED FOR
ISSUANCE UNDER THE PLANS (AS DEFINED BELOW), IS SET FORTH IN THE DISCLOSURE
SCHEDULE.
ALL OF SUCH OUTSTANDING SHARES HAVE BEEN, OR UPON ISSUANCE WILL BE,
VALIDLY ISSUED AND ARE FULLY PAID AND NONASSESSABLE.
ALL OF SUCH OUTSTANDING
SHARES OF CAPITAL STOCK ARE DULY AUTHORIZED, VALIDLY ISSUED, FULLY PAID AND
NONASSESSABLE.
NO SHARES OF CAPITAL STOCK OF THE COMPANY ARE SUBJECT TO
PREEMPTIVE RIGHTS OR ANY OTHER SIMILAR RIGHTS OF THE SHAREHOLDERS OF THE COMPANY
OR ANY LIENS OR ENCUMBRANCES IMPOSED THROUGH THE ACTIONS OR FAILURE TO ACT OF
THE COMPANY.
EXCEPT AS DISCLOSED IN THE DISCLOSURE SCHEDULE OR IN THE SEC
DOCUMENTS AND OTHER THAN PURSUANT TO THIS AGREEMENT AND AS CONTEMPLATED BY THE
COMPANY'S EMPLOYEE AND DIRECTOR BENEFIT, INCENTIVE, OR OPTION PLANS DISCLOSED IN
THE COMPANY'S SEC DOCUMENTS (THE "PLANS"), (I) THERE ARE NO OUTSTANDING OPTIONS,
WARRANTS, SCRIP, RIGHTS TO SUBSCRIBE FOR, PUTS, CALLS, OR RIGHTS OF FIRST
REFUSAL, AND (II) THERE ARE NO AGREEMENTS, UNDERSTANDINGS, CLAIMS, ANTIDILUTION
PROTECTION OR OTHER COMMITMENTS OR RIGHTS OF ANY CHARACTER WHATSOEVER THAT COULD
REQUIRE THE COMPANY TO ISSUE ADDITIONAL SHARES OF CAPITAL STOCK OF THE COMPANY
OR ADJUST THE PURCHASE OR EXERCISE PRICE OF ANY SUCH INSTRUMENT.
EXCEPT AS
DISCLOSED IN THE DISCLOSURE SCHEDULE OR IN THE SEC DOCUMENTS, THERE ARE NO
AGREEMENTS OR ARRANGEMENTS (OTHER THAN THE REGISTRATION RIGHTS AGREEMENT, DATED
AS OF MAY 1, 2009, BETWEEN THE COMPANY AND THE BUYERS SIGNATORY THERETO) UNDER
WHICH THE COMPANY IS OBLIGATED TO REGISTER THE SALE OF ANY OF ITS SECURITIES
UNDER THE SECURITIES ACT.
8
(O)
INDEBTEDNESS AND OTHER CONTRACTS.
EXCEPT AS
DISCLOSED IN THE DISCLOSURE SCHEDULE OR IN THE SEC DOCUMENTS, NEITHER THE
COMPANY NOR ANY OF ITS SUBSIDIARIES (I) HAS ANY OUTSTANDING INDEBTEDNESS, OR
(II) IS IN VIOLATION OF ANY TERM OF OR IN DEFAULT UNDER ANY CONTRACT, AGREEMENT
OR INSTRUMENT RELATING TO ANY INDEBTEDNESS.
FOR PURPOSES OF THIS AGREEMENT:
(X) "INDEBTEDNESS" OF ANY PERSON MEANS, WITHOUT DUPLICATION (A) ALL INDEBTEDNESS
FOR BORROWED MONEY, (B) ALL OBLIGATIONS ISSUED, UNDERTAKEN OR ASSUMED AS THE
DEFERRED PURCHASE PRICE OF PROPERTY OR SERVICES (OTHER THAN TRADE PAYABLES
ENTERED INTO IN THE ORDINARY COURSE OF BUSINESS), (C) ALL REIMBURSEMENT OR
PAYMENT OBLIGATIONS WITH RESPECT TO LETTERS OF CREDIT, SURETY BONDS AND OTHER
SIMILAR INSTRUMENTS, (D) ALL OBLIGATIONS EVIDENCED BY NOTES, BONDS, DEBENTURES
OR SIMILAR INSTRUMENTS, INCLUDING OBLIGATIONS SO EVIDENCED INCURRED IN
CONNECTION WITH THE ACQUISITION OF PROPERTY, ASSETS OR BUSINESSES, (E) ALL
INDEBTEDNESS CREATED OR