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 SECURITIES, 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 SECURITIES) 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 SECURITIES .
AS OF THE DATE
HEREOF, THE AUTHORIZED CAPITAL STOCK OF THE COMPANY CONSISTS OF 100,000,000
SHARES OF COMMON STOCK, OF WHICH 47,724,464 SHARES ARE ISSUED AND OUTSTANDING,
AND NO SHARES ARE HELD BY THE COMPANY AS TREASURY SHARES, AND 10,000,000 SHARES
6
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 SECURITIES 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, EXCEPT TO THE EXTENT DESCRIBED IN THE PRECEDING
SENTENCE AND SCHEDULE 4.3 ATTACHED HERETO, (I) THERE ARE NO OUTSTANDING OPTIONS,
WARRANTS, SCRIP, RIGHTS TO SUBSCRIBE FOR, PUTS, CALLS, RIGHTS OF FIRST REFUSAL,
AGREEMENTS, UNDERSTANDINGS, CLAIMS OR OTHER COMMITMENTS OR RIGHTS OF ANY