IN
EQUITY, OR BEFORE OR BY ANY GOVERNMENTAL AGENCY (INCLUDING ANY CLAIM WITH
RESPECT TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND THE RELATED
DOCUMENTS), WHICH IF DETERMINED ADVERSELY TO THE COMPANY WOULD HAVE A MATERIAL
ADVERSE EFFECT, AND, TO THE KNOWLEDGE OF THE COMPANY, THERE IS NO BASIS FOR ANY
SUCH CLAIM (IN EACH CASE, OTHER THAN ANY CLAIM OR CLAIMS NOT PENDING AND, TO THE
KNOWLEDGE OF THE COMPANY, NOT THREATENED AGAINST OR AFFECTING THE COMPANY OR ANY
OF ITS SUBSIDIARIES AS OF THE INITIAL CLOSING DATE).
NEITHER THE COMPANY NOR
ANY MEMBER OF THE COMPANY GROUP IS SUBJECT TO ANY JUDGMENT, ORDER OR DECREE OF
ANY COURT OR OTHER GOVERNMENTAL AGENCY (OTHER THAN ANY SUCH ITEM THAT IS NOT IN
EFFECT AS OF THE INITIAL CLOSING DATE AND THAT COULD NOT REASONABLY BE EXPECTED
TO HAVE A MATERIAL ADVERSE EFFECT).
NEITHER THE COMPANY NOR ANY OTHER MEMBER OF
THE COMPANY GROUP HAS RECEIVED ANY OPINION OR MEMORANDUM FROM LEGAL COUNSEL TO
THE EFFECT THAT IT IS EXPOSED, FROM A LEGAL STANDPOINT, TO ANY LIABILITY THAT
WOULD HAVE A MATERIAL ADVERSE EFFECT.
4.8
LICENSES, COMPLIANCE WITH LAW, OTHER AGREEMENTS, ETC.
THE COMPANY
HAS, DIRECTLY OR THROUGH MEMBERS OF THE COMPANY GROUP, ALL MATERIAL FRANCHISES,
PERMITS, LICENSES AND OTHER RIGHTS NECESSARY TO CONDUCT ITS BUSINESS AND IS NOT
IN VIOLATION IN ANY MATERIAL RESPECT OF ANY ORDER OR DECREE OF ANY COURT, OR OF
ANY LAW, ORDER OR REGULATION OF ANY GOVERNMENTAL AGENCY, OR OF THE PROVISIONS OF
ANY MATERIAL CONTRACT OR AGREEMENT TO WHICH IT IS A PARTY OR BY WHICH IT IS
BOUND, AND NEITHER THIS AGREEMENT NOR THE RELATED DOCUMENTS NOR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY WILL RESULT IN ANY SUCH VIOLATION, EXCEPT WHERE
THE FAILURE TO HAVE ANY SUCH FRANCHISE, PERMIT OR LICENSE OR ANY SUCH VIOLATION
WOULD NOT IN THE AGGREGATE BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
EACH
OF THE COMPANY AND EACH OTHER MEMBER OF THE COMPANY GROUP ARE IN COMPLIANCE WITH
ALL APPLICABLE LAWS (INCLUDING RULES, REGULATIONS, CODES, PLANS, INJUNCTIONS,
JUDGMENTS, ORDERS, DECREES, RULINGS AND CHARGES THEREUNDER, INCLUDING THE
FOREIGN CORRUPT FEDERAL PRACTICES ACT, 15 U.S.C. 78DD-1 ET/ SEQ.) OF FEDERAL,
STATE, LOCAL AND FOREIGN GOVERNMENTAL (AND ALL AGENCIES THEREOF), EXCEPT TO THE
EXTENT THE FAILURE TO COMPLY WOULD NOT HAVE A MATERIAL ADVERSE EFFECT, AND NO
CLAIM OR NOTICE HAS BEEN FILED OR COMMENCED AGAINST ANY OF THEM ALLEGING ANY
FAILURE TO SO COMPLY.
4.9
CONSENTS.
THE EXECUTION, DELIVERY AND PERFORMANCE BY THE COMPANY
OF THIS AGREEMENT AND THE RELATED DOCUMENTS AND THE OFFER, ISSUANCE AND SALE OF
THE SERIES D SHARES AND THE WARRANTS REQUIRE NO CONSENT OF, ACTION BY OR IN
RESPECT OF, OR FILING WITH, ANY PERSON, GOVERNMENTAL AGENCY HAVING JURISDICTION
OVER THE COMPANY OR ANY OF ITS AFFILIATES THAT HAS NOT BEEN OBTAINED, EXCEPT
FILINGS WITH THE SECURITIES AND EXCHANGE COMMISSION REQUIRED AFTER THE EXECUTION
AND DELIVERY OF THIS AGREEMENT.
SUBJECT TO THE ACCURACY OF THE REPRESENTATIONS
AND WARRANTIES OF THE PURCHASERS SET FORTH