FOR PURPOSES OF
SECTION 203 OF THE DELAWARE GENERAL CORPORATION LAW) AND (II) DO NOT REQUIRE ANY
APPROVAL OR AUTHORIZATION FROM THE COMPANY'S STOCKHOLDERS (WHETHER PURSUANT TO
THE CERTIFICATE OF INCORPORATION, BY-LAWS, ANY REQUIREMENTS OF LAW OR
OTHERWISE).
THIS AGREEMENT HAS BEEN DULY AUTHORIZED, EXECUTED AND DELIVERED BY
THE COMPANY AND IS THE LEGAL, VALID AND BINDING OBLIGATION OF THE COMPANY
ENFORCEABLE IN ACCORDANCE WITH ITS TERMS, AND EACH OF THE REGISTRATION RIGHTS
AGREEMENT AND THE WARRANT HAS BEEN DULY AUTHORIZED BY THE COMPANY AND, UPON
EXECUTION AND DELIVERY BY THE COMPANY, WILL BE A LEGAL, VALID AND BINDING
OBLIGATION OF THE COMPANY ENFORCEABLE IN ACCORDANCE WITH ITS RESPECTIVE TERMS,
IN EACH CASE SUBJECT TO BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM,
FRAUDULENT TRANSFER OR OTHER SIMILAR LAWS OF GENERAL APPLICABILITY RELATING TO
OR AFFECTING THE ENFORCEMENT OF CREDITORS' RIGHTS AND BY THE EFFECT OF GENERAL
PRINCIPLES OF EQUITY (REGARDLESS OF WHETHER ENFORCEABILITY IS CONSIDERED IN A
PROCEEDING IN EQUITY OR AT LAW).
(B)
NEITHER THE EXECUTION AND DELIVERY OF THIS
AGREEMENT, THE REGISTRATION RIGHTS AGREEMENT OR THE WARRANT OR THE CONSUMMATION
OF ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY BY THE COMPANY NOR
COMPLIANCE WITH OR FULFILLMENT OF THE TERMS, CONDITIONS AND PROVISIONS HEREOF OR
THEREOF BY THE COMPANY WILL:
(I)
CONFLICT WITH, RESULT IN A BREACH OR
VIOLATION OF THE TERMS, CONDITIONS OR PROVISIONS OF, OR CONSTITUTE A DEFAULT, AN
EVENT OF DEFAULT OR AN EVENT CREATING RIGHTS OF ACCELERATION, TERMINATION OR
CANCELLATION OR A LOSS OF RIGHTS UNDER, OR RESULT IN THE CREATION OR IMPOSITION
OF ANY LIEN UPON ANY OF THE ASSETS OR PROPERTIES OF THE COMPANY, UNDER (A) THE
CERTIFICATE OF INCORPORATION OR THE BY-LAWS, (B) ANY NOTE, INSTRUMENT, CONTRACT,
16
AGREEMENT, MORTGAGE, LEASE, LICENSE, FRANCHISE, PERMIT OR OTHER AUTHORIZATION,
RIGHT, RESTRICTION OR OBLIGATION TO WHICH THE COMPANY IS A PARTY OR ANY OF ITS
ASSETS OR PROPERTIES IS SUBJECT OR BY WHICH THE COMPANY IS BOUND, (C) ANY COURT
ORDER TO WHICH THE COMPANY IS A PARTY OR ANY OF ITS ASSETS OR PROPERTIES IS
SUBJECT OR BY WHICH THE COMPANY IS BOUND, OR (D) ANY REQUIREMENTS OF LAW
AFFECTING THE COMPANY OR ITS ASSETS OR PROPERTIES, OTHER THAN, WITH RESPECT TO
CLAUSES (B), (C) AND (D), ANY SUCH CONFLICTS, BREACHES, DEFAULTS, RIGHTS OR
LIENS THAT WOULD NOT, INDIVIDUALLY OR IN THE AGGREGATE, HAVE A MATERIAL ADVERSE
EFFECT; OR
(II)
REQUIRE THE APPROVAL, CONSENT,
AUTHORIZATION OR ACT OF, OR THE MAKING BY THE COMPANY OF ANY MATERIAL
DECLARATION, FILING OR REGISTRATION WITH, ANY PERSON (EXCEPT FOR (A) WITH
RESPECT TO THE REGISTRATION RIGHTS AGREEMENT, THE REGISTRATION OF THE SHARES
COVERED THEREBY WITH THE SEC AND FILINGS PURSUANT TO STATE SECURITIES LAWS, (B)
ROUTINE POST-CLOSING NOTICE FILINGS WITH THE SEC AND UNDER STATE CORPORATION AND
SECURITIES LAWS, EACH OF WHICH WILL BE FILED TIMELY WITHIN THE APPLICABLE PERIOD
THEREFOR), (C) THE FILING OF A LISTING OF ADDITIONAL SHARES NOTIFICATION FORM
WITH NASDAQ LISTING THE CONVERSION COMMON SHARES ON THE NASDAQ NATIONAL MARKET
(PROVIDED, THAT THIS CLAUSE