INSTRUMENT (INCLUDING,
WITHOUT LIMITATION, ANY STOCK OPTION, EMPLOYEE STOCK PURCHASE OR SIMILAR PLAN OR
ANY EMPLOYMENT OR SIMILAR AGREEMENT) TO WHICH ANY OF THE BORROWERS IS A PARTY
(INCLUDING, WITHOUT LIMITATION, TRIGGERING THE APPLICATION OF ANY CHANGE OF
CONTROL OR SIMILAR PROVISION (WHETHER "SINGLE TRIGGER" OR "DOUBLE TRIGGER"));
(III)
RESULT IN THE
CREATION OR IMPOSITION OF ANY LIEN, ENCUMBRANCE, CLAIM, SECURITY INTEREST OR
RESTRICTION WHATSOEVER UPON ANY OF THE MATERIAL PROPERTIES OR ASSETS OF ANY OF
THE BORROWERS; OR
(IV)
RESULT IN A VIOLATION
OF ANY LAW, RULE, REGULATION, ORDER, JUDGMENT OR DECREE (INCLUDING FEDERAL AND
STATE SECURITIES LAWS AND REGULATIONS AND THE RULES AND REGULATIONS OF THE
AMERICAN STOCK EXCHANGE) APPLICABLE TO ANY OF THE BORROWERS OR BY WHICH ANY
PROPERTY OR ASSET OF ANY OF THE BORROWERS IS BOUND OR AFFECTED.
7
(B)
NONE OF THE BORROWERS IS IN VIOLATION OF ANY
TERM OF ITS CERTIFICATE OF INCORPORATION OR BYLAWS.
(C)
THE BUSINESS OF THE BORROWERS IS NOT BEING
CONDUCTED IN VIOLATION OF ANY LAW, ORDINANCE OR REGULATION OF ANY FOREIGN,
FEDERAL, STATE OR LOCAL GOVERNMENT OR GOVERNMENTAL AGENCY, DEPARTMENT, OR BODY,
EXCEPT WHERE SUCH VIOLATIONS WOULD NOT RESULT, EITHER INDIVIDUALLY OR IN THE
AGGREGATE, IN A MATERIAL ADVERSE EFFECT ON THE BUSINESS OR OPERATIONS OF THE ANY
OF THE BORROWERS.
(D)
EXCEPT FOR (A) THE FILING WITH THE SEC AND
THE DISSEMINATION TO STOCKHOLDERS OF THE COMPANY'S INFORMATION STATEMENT AS
REQUIRED UNDER THE EXCHANGE ACT (AS DEFINED BELOW), (B) AS MAY BE REQUIRED BY
ANY APPLICABLE STATE SECURITIES LAWS, OR (C) THE FILING OF THE CHARTER AMENDMENT
AND THE CERTIFICATES OF DESIGNATION WITH THE SECRETARY OF STATE OF THE STATE OF
DELAWARE, NONE OF THE BORROWERS IS REQUIRED TO OBTAIN ANY CONSENT, AUTHORIZATION
OR ORDER OF, OR MAKE ANY FILING OR REGISTRATION WITH, ANY FOREIGN, FEDERAL,
STATE OR LOCAL GOVERNMENT OR GOVERNMENTAL AGENCY, DEPARTMENT, OR BODY IN ORDER
FOR IT TO EXECUTE, DELIVER OR PERFORM ANY OF ITS OBLIGATIONS UNDER OR
CONTEMPLATED BY THIS AGREEMENT AND THE BORROWER RELATED AGREEMENTS TO WHICH IT
IS A PARTY OR TO PERFORM ITS OBLIGATIONS UNDER THE CERTIFICATES OF DESIGNATION,
IN EACH CASE IN ACCORDANCE WITH THE TERMS HEREOF OR THEREOF.
ALL CONSENTS,
AUTHORIZATIONS, ORDERS, FILINGS AND REGISTRATIONS WHICH ANY OF THE BORROWERS IS
REQUIRED TO OBTAIN AS DESCRIBED IN THE PRECEDING SENTENCE SHALL HAVE BEEN
OBTAINED OR EFFECTED ON OR PRIOR TO THE CLOSING DATE AND SHALL NOT BE THE
SUBJECT OF ANY PENDING OR, TO THE KNOWLEDGE OF THE BORROWERS, THREATENED ATTACK
BY APPEAL, DIRECT PROCEEDING OR OTHERWISE.
NONE OF THE BORROWERS IS, AND AS OF
THE CLOSING DATE WILL NOT BE, IN VIOLATION OF THE LISTING REQUIREMENTS OF THE
AMERICAN STOCK EXCHANGE, AND THE CONVERSION SHARES SHALL BE AUTHORIZED FOR
LISTING THEREON.
SECTION 2.4.
CAPITALIZATION; STATUS OF CAPITAL STOCK.
(A)
IMMEDIATELY PRIOR TO THE CLOSING AND
WITHOUT GIVING EFFECT TO THE ISSUANCE OF THE COMPANY'S CAPITAL STOCK
CONTEMPLATED BY THIS AGREEMENT, THE INVESTORS STOCK PURCHASE AGREEMENT OR THE
COGENT EMPLOYEE STOCK PLAN, BUT GIVING EFFECT TO THE