Capitalization and Other Capital Stock Matters from Purchase Agreement
Capitalization and Other Capital Stock Matters. Upon issuance and delivery of the Debentures and the Guarantees in accordance with this Agreement and the Indenture, the Debentures will be convertible at the option of the holder thereof into shares of Common Stock; the Conversion Shares have been duly authorized and reserved for issuance upon such conversion by all necessary corporate action and such Conversion Shares when issued upon such conversion will be validly issued, fully paid and non-assessable. Neither the offering nor sale of the Debentures and the Guarantees as contemplated by this Agreement gives rise to any rights, other than those which have been waived or satisfied, for or relating to the registration under the Securities Act of any shares of Common Stock except pursuant to the Registration Rights Agreement. As of March 31, 2006, the outstanding capital stock of the Company consists of 87,155,664 shares, 87,155,664 shares of which are common stock, $0.01 par value per share, and zero shares of which are preferred stock, $0.01 par value per share. As of March 31, 2006, the authorized capital stock of the Company consists of 1,900,000,000 shares of common stock and 200,000,000 shares of preferred stock. As of December 31, 2005, there were 74,038,257 shares of common stock issued and outstanding. There were no shares of preferred stock outstanding on March 31, 2006. Except as disclosed in the SEC Reports (as defined below), there has been no material change in the Companys capitalization since March 31, 2006. All outstanding shares of capital stock are duly authorized, validly issued, fully paid and nonassessable and have been issued in compliance with all applicable securities laws. Except as disclosed in the Disclosure Package there are no outstanding options, warrants, script rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights or obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire, any shares of Common Stock, or contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to issue additional shares of Common Stock, or securities or rights convertible or exchangeable into shares of Common Stock. Except as disclosed in Schedule IV, the issue and sale of the Debentures will not obligate the Company to issue shares of Common Stock or other securities to any person (other than the Initial Purchasers upon conversion of the Debentures) and will not result in a right of any holder of Company securities to adjust the exercise, conversion, exchange or reset price under such securities. To the knowledge of the Company, except as specifically disclosed in the proxy statement for the Companys annual meeting of stockholders held on May 12, 2006, no person or group of related persons beneficially owns (as determined pursuant to Rule 13d-3 under the Exchange Act), or has the right to acquire, by agreement with or by obligation binding upon the Company, beneficial ownership of in excess of 5% of the outstanding Common Stock, ignoring for such purposes any limitation on the number of shares of Common Stock that may be owned at any single time. The information set forth under the caption Capitalization in the Disclosure Package and the Offering Memorandum is true and correct in all material respects. The Debentures, the Guarantees, the Indenture, the Registration Rights Agreement and the Conversion Shares conform in all material respects to the descriptions thereof contained in the Disclosure Package and the Offering Memorandum.