This excerpt taken from the LUX 6-K filed Jun 25, 2007.
Company Disclosure Schedule) (it being understood that any information set forth in a particular section or subsection of the Company Disclosure Schedule shall be deemed to be disclosed in each other section or subsection thereof to which the relevance of such information is reasonably apparent on its face), (ii) as may be disclosed in any of the SEC Reports (as defined below) filed prior to the date of this Agreement and publicly available, excluding any disclosure in any such SEC Report set forth in any risk factor section and in any section relating to forward-looking statements other than factual disclosures therein that are set forth elsewhere in such SEC Report, or (iii) as arising after the date of this Agreement from any actions taken by the Company or any of its Subsidiaries after the date hereof at, and in accordance with, the specific written request of Parent or Merger Sub:
Section 3.01. Organization and Qualification; Subsidiaries. The Company is a corporation duly organized and validly existing under the laws of the State of Washington. Section 3.01 of the Company Disclosure Schedule sets forth the percentage of all of the issued and outstanding shares of capital stock or other equity interests owned by the Company and its Subsidiaries in its Subsidiaries. Each of the Companys Subsidiaries is duly organized, validly existing and in good standing (where applicable) under the laws of the jurisdiction of its incorporation or organization, except where the failure to be so organized, validly existing or in good standing would not, individually or in the aggregate, have a Material Adverse Effect (as defined below). The Company and each of its Subsidiaries has the requisite power (corporate or otherwise) and authority to own, operate or lease its properties and to carry on its business as it is now being conducted, and is duly qualified or licensed to do business, and is in good standing, in each jurisdiction in which the nature of its business or the properties owned, operated or leased by it makes such qualification, licensing or good standing necessary, except where the failure to have such power or authority or to be so qualified, licensed or in good standing would not, individually or in the aggregate, have a Material Adverse Effect. The term Subsidiary, as used in this Agreement, means, with respect to any entity, any corporation, partnership, limited liability company or other organization, whether incorporated or unincorporated, which is consolidated with such entity for financial reporting purposes. Section 3.01 of the Company Disclosure Schedule sets forth the name, jurisdiction of incorporation and principal line of business of each Subsidiary of the Company. The term Material Adverse Effect, as used in this Agreement, means any change or effect that is or could reasonably be expected to be materially adverse to the business, assets, results of operations or financial condition of the Company and its Subsidiaries, taken as a whole, except for any such change or effect arising out of or relating to (i) the announcement of the transactions contemplated by this Agreement or actions by Parent, Merger Sub or the Company required to be taken pursuant to this Agreement or the failure to take any actions that are prohibited by this Agreement, (ii) changes in general economic, regulatory or political conditions or changes affecting the economy or the securities or financial markets in general, except to the extent that any such change or effect disproportionately affects the Company when compared to other members of the Companys industry, (iii) changes in laws, rules, regulations or orders of any Governmental Entity (as defined herein) or interpretations thereof by any Governmental Entity or changes in accounting
rules, except to the extent that any such change or effect disproportionately affects the Company when compared to other members of the Companys industry, (iv) changes affecting generally the industry in which the Company conducts business, except to the extent that any such change or effect disproportionately affects the Company when compared to other members of the Companys industry, (v) a material worsening of current conditions caused by an act of terrorism or war (whether declared or not declared) occurring after the date of this Agreement or any natural disasters or any national or international calamity affecting the United States or (vi) any change in the market price or trading volume of the Companys securities, including as a result of the failure of the Company to meet analysts expectations, provided that the exception in this clause (vi) shall not prevent or otherwise affect a determination that any cause underlying such change has resulted in or contributed to the occurrence of a Material Adverse Effect as defined without reference to this clause (vi).
Section 3.02. Articles of Incorporation and By-Laws. The Company has heretofore made available to Parent and Merger Sub an accurate and complete copy of the articles of incorporation or certificate of formation and the by-laws or operating agreement, or other similar organizational documents, each as amended to the date hereof, of the Company and each Subsidiary of the Company. Such articles of incorporation or certificate of formation and by-laws or operating agreement or such other organizational documents are in full force and effect. The Company is not in violation of, and none of its Subsidiaries is in violation in any material respect of, any provision of its articles of incorporation or certificate of formation or by-laws or operating agreement, or other similar organizational document.
Section 3.03. Capitalization. Section 3.03 of the Company Disclosure Schedule sets forth (i) as of the close of business on June 18, 2007 (the Measurement Date), the number of authorized and outstanding Shares and the number of authorized and outstanding shares of preferred stock (Preferred Stock) of the Company, (ii) as of the Measurement Date, the number of Shares for which the Company Options are exercisable and the related exercise prices, (iii) the number of Shares reserved for issuance pursuant to the Option Plans, (iv) as of the Measurement Date, the number of outstanding Company Stock-Based Awards in the form of restricted stock units which have not yet been replaced by issued Shares, (v) the number of Shares originally made subject to the 1995 Stock Plan, (vi) the number of Shares that, as of the Measurement Date, had been issued pursuant to the 1995 Stock Plan and (vii) the number of Shares that, as of the date of this Agreement, remain issuable pursuant to the 1995 Stock Plan. The Companys procedures with respect to the granting of all Company Options provided for the specification of an exercise price that is no less than the market price for the Shares on the date of the grant. The Company complied in all material respects with such procedures with respect to the granting of the Company Options. The Founder is the record and, to the knowledge of the Company, the beneficial owner, as beneficial ownership is defined in the Exchange Act (as defined below), of 44,426,400 of the outstanding Shares. There are no bonds, debentures, notes or other indebtedness having general voting rights (or convertible into, or exchangeable for, securities having such rights) (Voting Debt) of the Company or any of its Subsidiaries issued and outstanding. Except for the Company Options, the Company Stock-Based Awards, and options, subscriptions or other rights issued and outstanding which are held by the Company or any Subsidiary in any other Subsidiary and except as set forth in Section 3.03 of the Company
Disclosure Schedule, there are no existing options, warrants, calls, subscriptions or other rights, agreements, arrangements or commitments of any character, relating to the issued or unissued capital stock of the Company or any of its Subsidiaries, obligating the Company or any of its Subsidiaries to issue, transfer or sell or cause to be issued, transferred or sold any shares of capital stock or Voting Debt of, or other equity interest in, the Company or any of its Subsidiaries or securities convertible into or exchangeable for such shares or equity interests, nor are there any obligations of the Company or any of its Subsidiaries to grant, extend or enter into any such option, warrant, call, subscription or other right, agreement, arrangement or commitment. There are no outstanding contractual obligations of the Company or any of its Subsidiaries to any third-party to repurchase, redeem or otherwise acquire any Shares or other capital stock of the Company or any of its Subsidiaries. Except for the Founder Voting Agreement, to the knowledge of the Company, as of the date of this Agreement, there are no voting agreements with respect to the Shares which affect or relate to the voting of, or the execution of written consents with respect to, or the solicitation of proxies relating to the voting of, any security of the Company or any of its Subsidiaries. Each of the outstanding shares of capital stock of each of the Companys Subsidiaries is validly issued, fully paid and nonassessable, and such shares of the Companys Subsidiaries are owned, beneficially and of record, by the Company or by a Subsidiary of the Company, in each case, free and clear of any Lien, other than Liens imposed by or arising under applicable law. There are no outstanding contractual obligations of the Company or any of its Subsidiaries to make an investment (in the form of a loan, capital contribution or otherwise) in any entity other than a Subsidiary.
Section 3.04. Authority Relative to this Agreement. Except for the Required Shareholder Approval (as defined in Section 6.01(a)), the Company has all necessary corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby have been duly and validly authorized, approved and declared advisable by the Board and no other corporate proceedings on the part of the Company are necessary to authorize or approve this Agreement (other than, with respect to the Merger, the adoption of this Agreement by holders of two-thirds of the outstanding Shares and the filing of the Articles of Merger as required by the WBCA). This Agreement has been duly and validly executed and delivered by the Company and, assuming the due and valid authorization, execution and delivery of this Agreement by Parent and Merger Sub, constitutes a legally valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that such enforceability may be limited by (i) bankruptcy, insolvency, moratorium or other similar laws affecting or relating to the enforcement of creditors rights generally, (ii) general principles of equity and (iii) the remedies of specific performance and injunctive relief and other forms of equitable relief being subject to the discretion of the Governmental Entity (as defined below) before which any enforcement proceeding therefor may be brought. The Board, at a meeting duly called and held on June 20, 2007, prior to the execution and delivery of this Agreement, by adopting resolutions that, as of the time of execution and delivery of this Agreement, are in full force and effect and have not been in any way modified or rescinded, has duly taken all actions necessary under the WBCA and the Companys articles of incorporation to (a) approve and adopt this Agreement and the transactions contemplated hereby
(including the Merger), (b) determine that this Agreement and the transactions contemplated hereby (including the Merger) are advisable and fair to and in the best interests of the Company and its shareholders, (c) direct that this Agreement be submitted to the Company shareholders for adoption, (d) resolve to recommend that the shareholders of the Company approve this Agreement and the transactions contemplated hereby and (e) approve the Founder Voting Agreement. As a result of the foregoing actions, the only vote required to authorize and approve the Merger is the affirmative vote of the holders of two-thirds of the Shares.