WATKINS LLP, 555 11TH STREET, N.W., SUITE 1000, WASHINGTON, D.C. 20004, OR AT
SUCH OTHER PLACE OR AT SUCH OTHER TIME AS SHALL BE AGREED UPON BY THE PARTIES
HERETO (THE ACTUAL DAY ON WHICH THE CLOSING OCCURS BEING HEREINAFTER REFERRED TO
AS THE "CLOSING DATE").
SECTION 1.8.
TERMS OF THE SHARES.
PRIOR TO THE CLOSING, THE COMPANY SHALL FILE
WITH THE SECRETARY OF STATE OF THE STATE OF DELAWARE AN AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION IN THE FORM SET FORTH ON EXHIBIT I HERETO
AUTHORIZING THE ISSUANCE OF THE SHARES (THE "CHARTER AMENDMENT") AND A
CERTIFICATE OF DESIGNATION IN THE FORM SET FORTH ON EXHIBIT J
HERETO SETTING
FORTH THE RIGHTS AND PREFERENCES OF THE CSCC SHARES (THE "CERTIFICATE OF
DESIGNATION" AND TOGETHER WITH THE CERTIFICATES OF DESIGNATION CONTEMPLATED TO
BE FILED WITH THE SECRETARY OF STATE
5
OF THE STATE OF DELAWARE PURSUANT TO SECTION 1.D. OF THE INVESTORS STOCK
PURCHASE AGREEMENT, THE "CERTIFICATES OF DESIGNATION").
SECTION 1.9.
CANCELLATION OF WARRANTS AND ORIGINAL NOTES.
CSCC HEREBY AGREES
THAT UPON THE CLOSING, THE WARRANTS AND ORIGINAL NOTES SHALL BE DEEMED CANCELLED
AND SHALL BE OF NO FURTHER VALUE, FORCE OR EFFECT.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE BORROWERS
As an inducement to CSCC to enter into this Agreement and to consummate the
transactions contemplated hereby, the Borrowers represent and warrant to CSCC as
follows, except to the extent (i) disclosed with reasonable specificity on the
exhibits attached hereto, and (ii) with respect to Sections 2.5, 2.6, 2.7 and
2.9, disclosed with reasonable specificity on the SEC Filings (as defined below)
other than (x) those sections of the SEC Filings entitled or captioned "Risk
Factors" and (y) specific disclosures in those documents which are filed as
exhibits to, or incorporated by reference in, such SEC Filings.
Without
limiting the generality of the foregoing clause (y), the mere filing or
incorporation by reference of an exhibit to such SEC Filings shall not be deemed
to adequately disclose an exception to a representation or warranty made herein
(unless the representation or warranty has to do with the existence of the
exhibit itself, as opposed to the contents thereof).
SECTION 2.1.
ORGANIZATION. THE BORROWERS ARE DULY ORGANIZED, VALIDLY EXISTING
AND IN GOOD STANDING UNDER THE LAWS OF THE STATE OF DELAWARE.
EACH OF THE
BORROWERS HAS FULL POWER AND AUTHORITY TO OWN AND OPERATE ITS RESPECTIVE
PROPERTIES AND TO CONDUCT ITS RESPECTIVE BUSINESS AS CURRENTLY CONDUCTED AND
EACH IS REGISTERED OR QUALIFIED TO DO BUSINESS AND IS IN GOOD STANDING IN EACH
JURISDICTION IN WHICH IT OWNS OR LEASES PROPERTY OR TRANSACTS BUSINESS AND WHERE
THE FAILURE TO BE SO QUALIFIED WOULD HAVE A MATERIAL ADVERSE EFFECT UPON THEIR
FINANCIAL CONDITION, PROPERTIES OR OPERATIONS TAKEN AS A WHOLE.
SECTION 2.2.
DUE AUTHORIZATION. EACH OF THE BORROWERS HAS ALL REQUISITE POWER
AND AUTHORITY TO EXECUTE, DELIVER AND PERFORM ITS OBLIGATIONS UNDER THIS
AGREEMENT AND ANY OTHER AGREEMENTS AND INSTRUMENTS TO WHICH IT IS A PARTY
CONTEMPLATED HEREBY OR EXECUTED IN CONNECTION