OF ANY TRANSACTION CONTEMPLATED HEREBY WILL RESULT IN A CHANGE IN
THE PRICE OR NUMBER OF ANY SECURITIES OF THE PARENT OUTSTANDING, UNDER
ANTI-DILUTION OR OTHER SIMILAR PROVISIONS CONTAINED IN OR AFFECTING ANY SUCH
SECURITIES.
(III)
ALL ISSUED AND OUTSTANDING SHARES OF THE PARENT'S COMMON STOCK:
(I) HAVE BEEN DULY AUTHORIZED AND VALIDLY ISSUED AND ARE FULLY PAID AND
NON-ASSESSABLE; AND (II) WERE ISSUED IN COMPLIANCE WITH ALL APPLICABLE STATE AND
FEDERAL LAWS CONCERNING THE ISSUANCE OF SECURITIES.
12
(IV)
THE RIGHTS, PREFERENCES, PRIVILEGES AND RESTRICTIONS OF THE SHARES
OF THE COMMON STOCK ARE AS STATED IN THE PARENT'S CERTIFICATE OF INCORPORATION
(THE "CHARTER").
THE WARRANT SHARES HAVE BEEN DULY AND VALIDLY RESERVED FOR
ISSUANCE.
WHEN ISSUED IN COMPLIANCE WITH THE PROVISIONS OF THIS AGREEMENT AND
THE PARENT'S CHARTER, THE SECURITIES WILL BE VALIDLY ISSUED, FULLY PAID AND
NONASSESSABLE, AND WILL BE FREE OF ANY LIENS OR ENCUMBRANCES; PROVIDED, HOWEVER,
THAT THE SECURITIES MAY BE SUBJECT TO RESTRICTIONS ON TRANSFER UNDER STATE
AND/OR FEDERAL SECURITIES LAWS AS SET FORTH HEREIN OR AS OTHERWISE REQUIRED BY
SUCH LAWS AT THE TIME A TRANSFER IS PROPOSED.
(D)
AUTHORIZATION; BINDING OBLIGATIONS.
ALL CORPORATE, PARTNERSHIP OR
LIMITED LIABILITY COMPANY, AS THE CASE MAY BE, ACTION ON ITS AND ITS
SUBSIDIARIES' PART (INCLUDING THEIR RESPECTIVE OFFICERS AND DIRECTORS) NECESSARY
FOR THE AUTHORIZATION OF THIS AGREEMENT AND THE ANCILLARY AGREEMENTS, THE
PERFORMANCE OF ALL OF ITS AND ITS SUBSIDIARIES' OBLIGATIONS HEREUNDER AND UNDER
THE ANCILLARY AGREEMENTS ON THE CLOSING DATE AND, THE AUTHORIZATION, ISSUANCE
AND DELIVERY OF THE NOTES AND THE WARRANT HAS BEEN TAKEN OR WILL BE TAKEN PRIOR
TO THE CLOSING DATE.
THIS AGREEMENT AND THE ANCILLARY AGREEMENTS, WHEN EXECUTED
AND DELIVERED AND TO THE EXTENT IT IS A PARTY THERETO, WILL BE ITS AND ITS
SUBSIDIARIES' VALID AND BINDING OBLIGATIONS ENFORCEABLE AGAINST EACH SUCH PERSON
IN ACCORDANCE WITH THEIR TERMS, EXCEPT:
(I)
AS LIMITED BY APPLICABLE BANKRUPTCY, INSOLVENCY, REORGANIZATION,
MORATORIUM OR OTHER LAWS OF GENERAL APPLICATION AFFECTING ENFORCEMENT OF
CREDITORS' RIGHTS; AND
(II)
GENERAL PRINCIPLES OF EQUITY THAT RESTRICT THE AVAILABILITY OF
EQUITABLE OR LEGAL REMEDIES.
The issuance of the Notes is not and will not be subject to any preemptive
rights or rights of first refusal that have not been properly waived or complied
with.
The issuance of the Warrants and the subsequent exercise of the Warrants
for Warrant Shares are not and will not be subject to any preemptive rights or
rights of first refusal that have not been properly waived or complied with.
(E)
LIABILITIES.
NEITHER IT NOR ANY OF ITS SUBSIDIARIES HAS ANY
LIABILITIES, EXCEPT CURRENT LIABILITIES INCURRED IN THE ORDINARY COURSE OF
BUSINESS AND LIABILITIES DISCLOSED IN ANY EXCHANGE ACT FILINGS.
(F)
AGREEMENTS; ACTION.
EXCEPT AS SET FORTH ON SCHEDULE 12(F) OR AS
DISCLOSED IN ANY EXCHANGE ACT FILINGS:
(I)
THERE ARE NO AGREEMENTS, UNDERSTANDINGS, INSTRUMENTS, CONTRACTS,
PROPOSED TRANSACTIONS, JUDGMENTS, ORDERS, WRITS OR DECREES TO WHICH IT OR ANY OF
ITS SUBSIDIARIES IS A PARTY OR TO ITS KNOWLEDGE BY WHICH IT IS BOUND WHICH MAY
INVOLVE: