X hits on this document

220 views

0 shares

0 downloads

0 comments

41 / 86

Morgan Chase Bank N.A. (the “Commitment Letter”), and the Commitment Letter is in full force and effect.

Section 4.9 Securities Laws . Buyer will not offer, sell, transfer, assign, pledge or hypothecate any portion of the Shares in the absence of registration, except pursuant to an applicable exemption under federal and all applicable state securities laws.

Section 4.10 Validity of Shares; Listing . When issued and delivered in accordance with this Agreement, the Stock Consideration to be delivered under this Agreement shall (a) be duly and validly authorized, issued and outstanding, (b) be fully paid and non assessable, (c) be free and clear of any Liens, including, claims or rights under any voting trust agreements, shareholder agreements or other agreements, (d) be listed on The Nasdaq National Market and (e) not have been issued in violation of the preemptive or other similar rights of any Person.

Section 4.11 Capitalization . Parent’s capital stock consists of (i) 200,000,000 shares of Parent Common Stock, of which 85,615,334 shares were validly issued and outstanding (as of March 13, 2006), fully paid and nonassessable, (ii) 8,100,000 shares of Class B Common Stock, $.01 par value per share, of which none are issued and outstanding (as of March 13, 2006), and (iii) 30,000,000 shares of Preferred Stock, $.01 par value per share, of which there are currently five series of Preferred Stock designated consisting of 8,050,000 shares of 4% Series A Convertible Preferred Stock, 8,050,000 shares of 4% Series B Redeemable Preferred Stock, 4,472,272 shares of 4% Series C Convertible Preferred Stock, 4,472,272 shares of 4% Series D Redeemable Preferred Stock, and 100,000 shares of Series E Junior Participating Preferred Stock, of which none from any of the five series are issued and outstanding. In addition, as of March 13, 2006, Parent has reserved (1) 5,233,148 shares of Parent Common Stock issuable upon exercise of outstanding stock options, (2) 6,339,868 shares of Parent Common Stock that may be issued upon exercise of options that may be granted in the future under Parent’s 2001 Equity Participation Plan, (3) 653,138 shares of Parent Common Stock that may be issued under Parent’s 1999 Employee Stock Purchase Plan and (4) 2,305,906 shares of Parent Common Stock issuable under Parent’s registration statements on Form S-4 in connection with acquisition transactions or earn-out obligations under prior acquisition transactions.

Section 4.12 Legal Compliance . Buyer and Parent are in material compliance with, and the respective businesses of Buyer and Parent are being conducted in compliance with, all applicable Laws, Orders and permits which are necessary to conduct the business now operated by them, and neither Buyer or Parent has received written notice of any Litigation alleging any failure to so comply, except in each case such as could not reasonably be expected to have a Buyer Material Adverse Effect or a Parent Material Adverse Effect. The material permits under which Buyer or Parent are operating or bound (i) constitute all material permits used or required in the conduct of the respective businesses of Buyer and Parent as presently conducted and (ii) are in full force and effect, except in each case as could not reasonably be expected to have a Buyer Material Adverse Effect or a Parent Material Adverse Effect.

Section 4.13 Material Contracts . Neither Buyer nor Parent is in default, and no event has occurred which, with due notice or lapse of time or both, would constitute such a default under, any material contract, agreement, instrument, commitment and other arrangement

34

Document info
Document views220
Page views220
Page last viewedMon Dec 05 18:49:38 UTC 2016
Pages86
Paragraphs818
Words39140

Comments