IN ARTICLE V HEREOF, THE COMPANY HAS
TAKEN ALL ACTION NECESSARY TO EXEMPT (I) THE ISSUANCE AND SALE OF THE SERIES D
SHARES AND THE WARRANTS, (II) THE ISSUANCE OF THE CONVERSION SHARES AND WARRANT
SHARES UPON DUE CONVERSION AND EXERCISE OF THE SERIES D SHARES AND WARRANTS,
RESPECTIVELY AND (III) THE OTHER TRANSACTIONS CONTEMPLATED BY THE RELATED
DOCUMENTS FROM THE PROVISIONS OF THE RIGHTS PLAN AND ANY OTHER "POISON PILL"
19
ARRANGEMENT, AND ANY ANTI-TAKEOVER, BUSINESS COMBINATION OR CONTROL SHARE LAW OR
STATUTE BINDING ON THE COMPANY GROUP OR TO WHICH THE COMPANY GROUP OR ANY OF ITS
ASSETS AND PROPERTIES MAY BE SUBJECT.
4.10
DISCLOSURE.
THIS AGREEMENT, TOGETHER WITH ALL EXHIBITS AND
SCHEDULES HERETO, AND THE AGREEMENTS, CERTIFICATES AND OTHER DOCUMENTS
(INCLUDING THE COMPANY REPORTS) FURNISHED OR MADE AVAILABLE TO THE PURCHASERS BY
THE COMPANY AND EACH OTHER MEMBER OF THE COMPANY GROUP IN CONNECTION WITH THE
TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT AND THE RELATED DOCUMENTS, DO NOT
CONTAIN ANY UNTRUE STATEMENT OF A MATERIAL FACT OR, AS SUPPLEMENTED BY THE
COMPANY REPORTS, OMIT TO STATE A MATERIAL FACT NECESSARY IN ORDER TO MAKE THE
STATEMENTS CONTAINED HEREIN OR THEREIN, IN THE LIGHT OF THE CIRCUMSTANCES UNDER
WHICH THEY WERE MADE, NOT MISLEADING.
4.11
TANGIBLE ASSETS.
THE COMPANY, DIRECTLY OR THROUGH A MEMBER OF THE
COMPANY GROUP, OWNS OR LEASES ALL TANGIBLE ASSETS USED IN OR REASONABLY
NECESSARY FOR THE OPERATION OF THE BUSINESS OF THE COMPANY GROUP, TAKEN AS A
WHOLE.
4.12
OWNED REAL PROPERTY.
NO MEMBER OF THE COMPANY GROUP OWNS ANY REAL
PROPERTY.
4.13
REAL PROPERTY LEASES.
THERE EXISTS NO EVENT OF DEFAULT (NOR, TO THE
COMPANY'S KNOWLEDGE, ANY EVENT WHICH WITH NOTICE OR LAPSE OF TIME WOULD
CONSTITUTE AN EVENT OF DEFAULT) WITH RESPECT TO THE COMPANY, ANY MATERIAL
SUBSIDIARY AND, TO THE COMPANY'S KNOWLEDGE, WITH RESPECT TO ANY OTHER PARTY
THERETO UNDER ANY AGREEMENT PURSUANT TO WHICH THE COMPANY OR ANY MATERIAL
SUBSIDIARY IS THE LESSEE OR LESSOR OF ANY REAL PROPERTY, AND ALL SUCH AGREEMENTS
ARE IN FULL FORCE AND EFFECT AND ENFORCEABLE AGAINST THE LESSOR OR LESSEE IN
ACCORDANCE WITH THEIR TERMS EXCEPT FOR SUCH DEFAULTS AND DEFECTS IN
ENFORCEABILITY AS WOULD NOT IN THE AGGREGATE BE EXPECTED TO HAVE A MATERIAL
ADVERSE EFFECT.
4.14
CERTIFICATES, AUTHORITIES AND PERMITS.
THE COMPANY GROUP POSSESSES
ADEQUATE CERTIFICATES, AUTHORITIES OR PERMITS ISSUED BY APPROPRIATE GOVERNMENTAL
AGENCIES NECESSARY TO CONDUCT THE BUSINESS NOW OPERATED BY THEM, EXCEPT WHERE
THE FAILURE TO POSSESS THE SAME WOULD NOT HAVE A MATERIAL ADVERSE EFFECT, AND
NEITHER THE COMPANY NOR ANY MATERIAL SUBSIDIARY HAS RECEIVED ANY NOTICE OF
PROCEEDINGS RELATING TO THE REVOCATION OR MODIFICATION OF ANY SUCH CERTIFICATE,
AUTHORITY OR PERMIT THAT, IF DETERMINED ADVERSELY TO THE COMPANY OR SUCH
MATERIAL SUBSIDIARY, COULD REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE
EFFECT, INDIVIDUALLY OR IN THE AGGREGATE.
4.15
AGREEMENTS
(A)
EXCEPT AS EXPRESSLY CONTEMPLATED BY THIS AGREEMENT, AS DISCLOSED
IN THE COMPANY REPORTS, OR AS SET FORTH ON SCHEDULE 4.15 AS OF THE INITIAL
CLOSING DATE, NO