MATERIALLY ADVERSE
TO THE COMPANY, OTHER THAN (A) ANY SUCH CHANGE OR EFFECT RESULTING FROM THE
PUBLIC ANNOUNCEMENT OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, OR
(B) ANY CHANGE OR EFFECT IN THE UNITED STATES ECONOMY IN GENERAL AND NOT
SPECIFICALLY RELATING TO THE COMPANY, INCLUDING WITHOUT LIMITATION ANY SUCH
CHANGE OR EFFECT REASONABLY RELATED TO THE CONFLICT BETWEEN THE UNITED STATES
AND THE COUNTRY OF IRAQ AND/OR TERRORIST ACTIVITY AGAINST THE UNITED STATES OR
ITS CITIZENS, (II) ANY MATERIAL ADVERSE EFFECT ON THE COMPANY'S ABILITY TO
CONSUMMATE THE TRANSACTION CONTEMPLATED HEREBY, INCLUDING THE ISSUANCE AND SALE
OF THE SECURITIES, AND (III) ANY MATERIAL ADVERSE EFFECT ON THE COMPANY'S
ABILITY TO PERFORM ITS OBLIGATIONS HEREUNDER AND UNDER THE SECURITIES.
"SUBSIDIARY" MEANS ANY PERSON IN WHICH THE COMPANY DIRECTLY OR INDIRECTLY
THROUGH SUBSIDIARIES OR OTHERWISE, BENEFICIALLY OWNS AT LEAST 50% OF EITHER THE
EQUITY INTEREST IN, OR THE VOTING CONTROL OF, SUCH PERSON, WHETHER OR NOT
EXISTING ON THE DATE HEREOF.
"PERSON" MEANS ANY INDIVIDUAL, PARTNERSHIP,
CORPORATION, LIMITED LIABILITY COMPANY, BUSINESS TRUST, JOINT STOCK COMPANY,
TRUST, UNINCORPORATED ASSOCIATION, JOINT VENTURE OR OTHER BUSINESS ENTITY.
4.2
CORPORATE POWER; AUTHORIZATION.
THE COMPANY HAS ALL REQUISITE
CORPORATE RIGHT, POWER AND AUTHORITY TO EXECUTE AND DELIVER THIS AGREEMENT, TO
SELL AND ISSUE THE SECURITIES HEREUNDER AND TO CARRY OUT AND PERFORM ALL OF ITS
OBLIGATIONS UNDER THIS AGREEMENT.
ALL CORPORATE AND OTHER ACTION ON THE PART OF
THE COMPANY, ITS DIRECTORS AND SHAREHOLDERS NECESSARY FOR THE AUTHORIZATION,
EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT BY THE COMPANY, THE
AUTHORIZATION, SALE, ISSUANCE AND DELIVERY OF THE SECURITIES CONTEMPLATED HEREIN
AND THE PERFORMANCE OF THE COMPANY'S OBLIGATIONS HEREUNDER HAS BEEN TAKEN OR
WILL BE TAKEN PRIOR TO THE CLOSING.
THIS AGREEMENT HAS BEEN DULY EXECUTED AND
DELIVERED BY THE COMPANY AND CONSTITUTES THE LEGAL, VALID AND BINDING OBLIGATION
OF THE COMPANY, ENFORCEABLE IN ACCORDANCE WITH ITS TERMS, EXCEPT THAT
(A) ENFORCEABILITY MAY BE LIMITED BY APPLICABLE BANKRUPTCY, INSOLVENCY,
REORGANIZATION, MORATORIUM OR SIMILAR LAWS RELATING TO OR AFFECTING THE
ENFORCEMENT OF CREDITORS' RIGHTS GENERALLY, (B) ENFORCEABILITY MAY BE LIMITED BY
EQUITABLE PRINCIPLES GENERALLY, AND (C) ENFORCEABILITY OF THOSE PROVISIONS OF
SECTION 8.2 RELATING TO INDEMNITY MAY BE LIMITED UNDER APPLICABLE LAW OR FOR
REASONS OF PUBLIC POLICY.
4.3
NO CONFLICT.
THE EXECUTION AND DELIVERY OF THIS AGREEMENT DOES
NOT, AND THE PERFORMANCE BY THE COMPANY OF ITS OBLIGATIONS UNDER THIS AGREEMENT
AND THE ISSUANCE, SALE AND DELIVERY OF THE SECURITIES BY THE COMPANY WILL NOT
(I) CONFLICT WITH, RESULT IN A BREACH OR VIOLATION OF, OR CONSTITUTE A DEFAULT
UNDER (WITH OR WITHOUT NOTICE OR LAPSE OF TIME OR BOTH) OR (II) RESULT IN THE
CREATION OR IMPOSITION OF ANY LIEN, CLAIM, OPTION, CHARGE, SECURITY INTEREST,
LIMITATION, ENCUMBRANCE OR RESTRICTION PURSUANT TO THE TERMS, CONDITIONS OR
PROVISIONS OF:
(A)
THE AMENDED AND RESTATED ARTICLES OF INCORPORATION OR BYLAWS OF
THE COMPANY OR ANY SIMILAR ORGANIZATIONAL DOCUMENT OF ANY SUBSIDIARY, IN EACH
CASE, AS IN EFFECT ON THE DATE HEREOF;
3
(B)
ANY LEASE, LOAN AGREEMENT, MORTGAGE, SECURITY