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 AND WARRANT 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 AND WARRANT 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:
(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.
4
The sale of the Note and the subsequent conversion of the Note into Note 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.
The issuance of
the Warrant and the subsequent exercise of the Warrant 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.
4.5
LIABILITIES.
NEITHER THE COMPANY NOR ANY OF ITS SUBSIDIARIES HAS
ANY LIABILITIES IN EXCESS OF $200,000 IN THE AGGREGATE, EXCEPT AS SET FORTH ON
SCHEDULES TO THIS AGREEMENT AND 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, AS AMENDED ("EXCHANGE ACT")
OR THE SECURITIES ACT OF 1933, AS AMENDED ("SECURITIES ACT") MADE PRIOR TO