TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED HEREBY AND TO CONDUCT
ITS BUSINESS.
THE EXECUTION AND DELIVERY OF THIS AGREEMENT BY THE COMPANY, THE
PERFORMANCE BY THE COMPANY OF ITS OBLIGATIONS HEREUNDER AND THE CONSUMMATION BY
THE COMPANY OF THE TRANSACTIONS CONTEMPLATED HEREBY HAVE BEEN DULY AUTHORIZED BY
ALL REQUISITE CORPORATE ACTION ON THE PART OF THE COMPANY.
THIS AGREEMENT HAS
BEEN DULY EXECUTED AND DELIVERED BY THE COMPANY, AND (ASSUMING DUE
AUTHORIZATION, EXECUTION AND DELIVERY BY THE PURCHASER) THIS AGREEMENT
CONSTITUTES A LEGAL, VALID AND BINDING OBLIGATION OF THE COMPANY ENFORCEABLE
AGAINST THE COMPANY IN ACCORDANCE WITH ITS TERMS, EXCEPT AS LIMITED BY
APPLICABLE BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM, FRAUDULENT
CONVEYANCE, AND ANY OTHER LAWS OF GENERAL APPLICATION AFFECTING ENFORCEMENT OF
CREDITORS' RIGHTS GENERALLY, AND AS LIMITED BY LAWS RELATING TO THE AVAILABILITY
OF A SPECIFIC PERFORMANCE, INJUNCTIVE RELIEF, OR OTHER EQUITABLE REMEDIES.
(B)
NO CONFLICT.
THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS
AGREEMENT, AND THE REGISTRATION RIGHTS AGREEMENT BY THE COMPANY AND THE ISSUANCE
OF THE SECURITIES CONTEMPLATED HEREBY DO NOT AND WILL NOT: (I) VIOLATE, CONFLICT
WITH OR RESULT IN THE BREACH OF ANY PROVISION OF THE CERTIFICATE OF
INCORPORATION OR BY-LAWS OF THE COMPANY (THE "COMPANY CHARTER DOCUMENTS") AS IN
EFFECT ON THE DATE HEREOF; (II) MATERIALLY CONFLICT WITH OR VIOLATE ANY LAW OR
GOVERNMENTAL ORDER AS IN EFFECT ON THE DATE HEREOF APPLICABLE TO THE COMPANY, OR
ANY OF ITS ASSETS, PROPERTIES OR BUSINESSES; OR (III) CONFLICT WITH, RESULT IN
ANY BREACH OF, CONSTITUTE A DEFAULT (OR EVENT WHICH WITH THE GIVING OF NOTICE OR
LAPSE OF TIME, OR BOTH, WOULD BECOME A DEFAULT) UNDER, REQUIRE ANY CONSENT
UNDER, OR GIVE TO OTHERS ANY RIGHTS OF TERMINATION, AMENDMENT, ACCELERATION OF
PERFORMANCE REQUIRED BY, SUSPENSION, REVOCATION OR CANCELLATION OF ANY RIGHTS
PURSUANT TO, ANY MATERIAL NOTE, BOND, MORTGAGE OR INDENTURE, CONTRACT,
AGREEMENT, LEASE, SUBLEASE, LICENSE, PERMIT, FRANCHISE OR OTHER INSTRUMENT OR
ARRANGEMENT AS IN EFFECT ON THE DATE HEREOF TO WHICH THE COMPANY IS A PARTY OR
BY WHICH ANY OF COMPANY'S ASSETS OR PROPERTIES IS BOUND OR AFFECTED, WHICH
INDIVIDUALLY OR IN THE AGGREGATE WOULD HAVE A MATERIAL ADVERSE EFFECT.
(C)
ISSUANCE AND DELIVERY OF THE SECURITIES.
THE SECURITIES HAVE
BEEN DULY AUTHORIZED BY THE COMPANY AND, WHEN ISSUED, SOLD AND DELIVERED IN
ACCORDANCE WITH THIS AGREEMENT, THE SECURITIES WILL BE (I) VALIDLY ISSUED, FULLY
PAID AND NONASSESSABLE, (II) FREE FROM ALL TAXES, LIENS AND CHARGES WITH RESPECT
TO THE ISSUE THEREOF, AND SHALL NOT BE SUBJECT TO PREEMPTIVE RIGHTS OR OTHER
SIMILAR RIGHTS OF SHAREHOLDERS OF THE COMPANY OR ANY LIENS OR ENCUMBRANCES AND
(III) ENTITLED TO THE RIGHTS SET FORTH IN THE CERTIFICATE OF AMENDMENT.
THE
SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THE PREFERRED STOCK AND UPON
EXERCISE OF THE WARRANT HAVE BEEN DULY AUTHORIZED AND RESERVED BY THE COMPANY
AND, WHEN ISSUED UPON CONVERSION OR EXERCISE IN ACCORDANCE WITH THE CERTIFICATE
OF AMENDMENT AND THE WARRANT, AS APPLICABLE, WILL BE VALIDLY ISSUED, FULLY PAID
AND NONASSESSABLE.
5
(D)
AUTHORIZED CAPITAL STOCK.
AS