ALL OBLIGATIONS OF THE COMPANY AND ITS SUBSIDIARIES HEREUNDER
AND UNDER THE OTHER RELATED AGREEMENTS AT THE CLOSING AND, THE AUTHORIZATION,
SALE, ISSUANCE AND DELIVERY OF THE NOTES AND WARRANTS HAS BEEN TAKEN OR WILL BE
TAKEN PRIOR TO THE CLOSING.
THIS AGREEMENT AND THE RELATED AGREEMENTS, WHEN
EXECUTED AND DELIVERED AND TO THE EXTENT IT IS A PARTY THERETO, WILL BE VALID
AND BINDING OBLIGATIONS OF THE COMPANY AND EACH OF ITS SUBSIDIARIES, ENFORCEABLE
AGAINST EACH SUCH PERSON OR ENTITY IN ACCORDANCE WITH THEIR TERMS, EXCEPT:
AS LIMITED BY APPLICABLE BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM OR
OTHER LAWS OF GENERAL APPLICATION AFFECTING ENFORCEMENT OF CREDITORS' RIGHTS;
AND GENERAL PRINCIPLES OF EQUITY THAT RESTRICT THE AVAILABILITY OF EQUITABLE OR
LEGAL REMEDIES.
The sale of the Notes 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.
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.
LIABILITIES; SOLVENCY.
NEITHER THE COMPANY NOR ANY OF ITS SUBSIDIARIES HAS ANY LIABILITIES, EXCEPT
CURRENT LIABILITIES INCURRED IN THE ORDINARY COURSE OF BUSINESS AND LIABILITIES
DISCLOSED IN ANY OF THE COMPANY'S FILINGS UNDER THE SECURITIES EXCHANGE ACT OF
1934 ("EXCHANGE ACT") MADE PRIOR TO THE DATE OF THIS AGREEMENT (COLLECTIVELY,
THE "EXCHANGE ACT FILINGS"), COPIES OF WHICH HAVE BEEN PROVIDED TO THE AGENT.
BOTH BEFORE AND AFTER (ASSUMING THE COMPANY OBTAINS THE APPROVAL OF ITS
SHAREHOLDERS TO INCREASE THE NUMBER OF AUTHORIZED SHARES OF COMMON STOCK) GIVING
EFFECT TO (A) THE TRANSACTIONS CONTEMPLATED HEREBY THAT ARE TO BE CONSUMMATED ON
THE CLOSING DATE, (B) THE DISBURSEMENT OF THE PROCEEDS OF, OR THE ASSUMPTION OF
THE LIABILITY IN RESPECT OF, THE NOTES PURSUANT TO THE INSTRUCTIONS OR AGREEMENT
OF THE COMPANY AND (C) THE PAYMENT AND ACCRUAL OF ALL TRANSACTION COSTS IN
CONNECTION WITH THE FOREGOING, THE COMPANY AND EACH SUBSIDIARY OF THE COMPANY,
IS AND WILL BE, SOLVENT.
FOR PURPOSES OF THIS SECTION 4.5(B), "SOLVENT" MEANS,
WITH RESPECT TO ANY PERSON (AS HEREINAFTER DEFINED) ON A PARTICULAR DATE, THAT
ON
4
SUCH DATE SUCH PERSON DOES NOT INTEND TO, AND DOES NOT BELIEVE THAT IT WILL,
INCUR DEBTS OR LIABILITIES BEYOND SUCH PERSON'S ABILITY TO PAY AS SUCH DEBTS AND
LIABILITIES MATURE.
THE AMOUNT OF CONTINGENT LIABILITIES (SUCH AS LITIGATION,
GUARANTIES AND PENSION PLAN LIABILITIES) AT ANY TIME SHALL BE COMPUTED AS THE
AMOUNT THAT, IN LIGHT OF ALL THE FACTS AND CIRCUMSTANCES EXISTING AT THE TIME,
REPRESENTS THE AMOUNT THAT CAN REASONABLY BE EXPECTED TO BECOME AN ACTUAL OR
MATURED LIABILITY.
AGREEMENTS; ACTION.
EXCEPT AS SET FORTH ON SCHEDULE 4.6 OR AS DISCLOSED IN ANY
EXCHANGE ACT FILINGS:
THERE ARE NO AGREEMENTS, UNDERSTANDINGS, INSTRUMENTS, CONTRACTS, PROPOSED
TRANSACTIONS, JUDGMENTS, ORDERS, WRITS OR DECREES TO WHICH THE COMPANY OR ANY OF
ITS SUBSIDIARIES IS A PARTY OR BY WHICH IT