AND OUTSTANDING CAPITAL STOCK OF EACH SUBSIDIARY OF THE
COMPANY IS SET FORTH ON SCHEDULE 4.3.
(B)
EXCEPT AS DISCLOSED ON SCHEDULE 4.3, OTHER
THAN:
(I) THE SHARES RESERVED FOR ISSUANCE UNDER THE COMPANY'S STOCK OPTION
PLANS; AND (II) SHARES WHICH MAY BE GRANTED PURSUANT TO THIS AGREEMENT AND THE
RELATED AGREEMENTS, THERE ARE NO OUTSTANDING OPTIONS, WARRANTS, RIGHTS
(INCLUDING CONVERSION OR PREEMPTIVE RIGHTS AND RIGHTS OF FIRST REFUSAL), PROXY
OR STOCKHOLDER AGREEMENTS, OR ARRANGEMENTS OR AGREEMENTS OF ANY KIND FOR THE
PURCHASE OR ACQUISITION FROM THE COMPANY OF ANY OF ITS SECURITIES.
EXCEPT AS
DISCLOSED ON SCHEDULE 4.3, NEITHER THE OFFER, ISSUANCE OR SALE OF ANY OF THE
NOTE, THE WARRANT OR THE INTEREST SHARES, OR THE ISSUANCE OF ANY OF THE NOTE
SHARES OR WARRANT SHARES, NOR THE CONSUMMATION OF ANY TRANSACTION CONTEMPLATED
HEREBY WILL RESULT IN A CHANGE IN THE PRICE OR NUMBER OF ANY SECURITIES OF THE
COMPANY OUTSTANDING, UNDER ANTI-DILUTION OR OTHER SIMILAR PROVISIONS CONTAINED
IN OR AFFECTING ANY SUCH SECURITIES.
(C)
ALL ISSUED AND OUTSTANDING SHARES OF THE
COMPANY'S COMMON STOCK:
(I) HAVE BEEN DULY AUTHORIZED AND VALIDLY ISSUED AND
ARE FULLY PAID AND NONASSESSABLE; AND (II) WERE ISSUED IN COMPLIANCE WITH ALL
APPLICABLE STATE AND FEDERAL LAWS CONCERNING THE ISSUANCE OF SECURITIES.
(D)
THE RIGHTS, PREFERENCES, PRIVILEGES AND
RESTRICTIONS OF THE SHARES OF THE COMMON STOCK ARE AS STATED IN THE COMPANY'S
CERTIFICATE OF INCORPORATION (THE "CHARTER").
THE NOTE SHARES, WARRANT SHARES
AND INTEREST SHARES HAVE BEEN DULY AND VALIDLY RESERVED FOR ISSUANCE.
WHEN
ISSUED IN COMPLIANCE WITH THE PROVISIONS OF THIS AGREEMENT AND THE COMPANY'S
CHARTER, THE SECURITIES WILL BE VALIDLY ISSUED, FULLY PAID AND NONASSESSABLE,
AND WILL BE FREE OF ANY LIENS OR ENCUMBRANCES; PROVIDED, HOWEVER, THAT THE
SECURITIES MAY BE SUBJECT TO RESTRICTIONS ON TRANSFER UNDER STATE AND/OR FEDERAL
SECURITIES LAWS AS SET FORTH HEREIN OR AS OTHERWISE REQUIRED BY SUCH LAWS AT THE
TIME A TRANSFER IS PROPOSED.
4.4
AUTHORIZATION; BINDING OBLIGATIONS.
ALL
CORPORATE, PARTNERSHIP OR LIMITED LIABILITY COMPANY, AS THE CASE MAY BE, ACTION
ON THE PART OF THE COMPANY AND EACH OF ITS SUBSIDIARIES (INCLUDING THEIR
RESPECTIVE OFFICERS AND DIRECTORS) NECESSARY FOR THE AUTHORIZATION OF THIS
AGREEMENT AND THE RELATED AGREEMENTS, THE PERFORMANCE OF 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 NOTE,
WARRANT AND INTEREST SHARES 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 EACH OF THE COMPANY AND EACH OF ITS SUBSIDIARIES, ENFORCEABLE AGAINST EACH
SUCH PERSON OR ENTITY IN ACCORDANCE WITH THEIR TERMS, EXCEPT:
4
(A)
AS LIMITED BY APPLICABLE BANKRUPTCY,
INSOLVENCY, REORGANIZATION, MORATORIUM OR OTHER LAWS OF GENERAL APPLICATION
AFFECTING ENFORCEMENT OF CREDITORS' RIGHTS; AND
(B)
GENERAL PRINCIPLES OF EQUITY THAT RESTRICT
THE AVAILABILITY OF EQUITABLE OR LEGAL REMEDIES.
The sale of the Note