(I) AS MAY
BE LIMITED BY GENERAL EQUITABLE PRINCIPLES AND APPLICABLE BANKRUPTCY,
INSOLVENCY, REORGANIZATION, MORATORIUM AND OTHER LAWS OF GENERAL APPLICATION
AFFECTING ENFORCEMENT OF CREDITORS' RIGHTS GENERALLY, (II) AS MAY BE LIMITED BY
LAWS RELATING TO THE AVAILABILITY OF SPECIFIC PERFORMANCE, INJUNCTIVE RELIEF OR
OTHER EQUITABLE REMEDIES AND (III) INSOFAR AS INDEMNIFICATION AND CONTRIBUTION
PROVISIONS MAY BE LIMITED BY APPLICABLE LAW.
(B)
THE ISSUANCE OF THE SHARES HAS BEEN DULY AUTHORIZED BY ALL
REQUISITE CORPORATE ACTION.
WHEN THE SHARES ARE ISSUED, SOLD AND DELIVERED
FOLLOWING THE FILING OF THE CERTIFICATE OF DESIGNATION WITH THE SECRETARY OF
STATE OF THE STATE OF DELAWARE AND IN ACCORDANCE WITH THE TERMS OF THIS
AGREEMENT FOR THE CONSIDERATION EXPRESSED HEREIN, THE SHARES WILL BE DULY AND
VALIDLY ISSUED AND OUTSTANDING, FULLY PAID, AND NONASSESSABLE, AND WILL BE FREE
OF RESTRICTIONS ON TRANSFER OTHER THAN RESTRICTIONS ON TRANSFER UNDER THIS
AGREEMENT, THE CERTIFICATE OF
6
DESIGNATION AND APPLICABLE UNITED STATES FEDERAL AND STATE OR OTHER SECURITIES
LAWS AND, EXCEPT AS OTHERWISE SET FORTH HEREIN, THE PURCHASERS SHALL BE ENTITLED
TO ALL RIGHTS ACCORDED TO A HOLDER OF SERIES A PREFERRED STOCK.
(C)
THE SHARES OF COMMON STOCK ISSUABLE UPON THE CONVERSION OF THE
SHARES, UPON RECEIPT OF THE REQUIRED STOCKHOLDER APPROVAL AND THE INCREASE
AUTHORIZATION, THE FILING OF THE RELATED CERTIFICATE OF DESIGNATION WITH THE
SECRETARY OF STATE OF THE STATE OF DELAWARE AND THE FILING OF AN AMENDMENT TO
THE COMPANY'S RESTATED CERTIFICATE OF INCORPORATION TO INCREASE THE NUMBER OF
AUTHORIZED SHARES OF COMMON STOCK PURSUANT TO THE INCREASE AUTHORIZATION, WILL
HAVE BEEN DULY AUTHORIZED BY ALL NECESSARY CORPORATE ACTION AND WHEN SO ISSUED
UPON SUCH CONVERSION WILL BE VALIDLY ISSUED, FULLY PAID AND NONASSESSABLE, WILL
NOT SUBJECT THE HOLDERS THEREOF TO PERSONAL LIABILITY AND WILL NOT BE SUBJECT TO
PREEMPTIVE RIGHTS OF ANY OTHER STOCKHOLDER OF THE COMPANY.
4.4.
CONSENTS AND APPROVALS; NO VIOLATION.
(A)
NEITHER THE EXECUTION AND DELIVERY OF THIS AGREEMENT BY THE
COMPANY NOR THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY BY THE
COMPANY WILL: (I) ASSUMING THE REQUIRED STOCKHOLDER APPROVAL AND THE INCREASE
AUTHORIZATION ARE OBTAINED, CONFLICT WITH OR VIOLATE THE RESTATED CERTIFICATE OF
INCORPORATION OR BYLAWS (OR EQUIVALENT ORGANIZATIONAL AND GOVERNING DOCUMENTS)
OF THE COMPANY OR ANY OF ITS SUBSIDIARIES; (II) ASSUMING ALL CONSENTS,
APPROVALS, AUTHORIZATIONS AND PERMITS CONTEMPLATED BY CLAUSE (B) OF THIS
SECTION 4.4 HAVE BEEN OBTAINED, AND ALL FILINGS AND NOTIFICATIONS DESCRIBED IN
SUCH CLAUSE HAVE BEEN MADE, CONFLICT WITH OR VIOLATE ANY LAWS; (III) VIOLATE OR
CONFLICT WITH, OR RESULT IN A BREACH OF ANY PROVISION OF, OR REQUIRE ANY
CONSENT, WAIVER OR APPROVAL OR RESULT IN A DEFAULT OR GIVE RISE TO ANY RIGHT OF
TERMINATION, CANCELLATION, MODIFICATION OR ACCELERATION (OR AN EVENT THAT, WITH
THE GIVING OF NOTICE, THE PASSAGE OF TIME OR OTHERWISE, WOULD CONSTITUTE A
DEFAULT OR GIVE RISE TO ANY SUCH RIGHT) UNDER, ANY OF THE TERMS, CONDITIONS OR
PROVISIONS OF ANY NOTE, BOND, MORTGAGE, LEASE, LICENSE, AGREEMENT, CONTRACT,
INDENTURE OR OTHER INSTRUMENT OR OBLIGATION TO WHICH THE