UPON DELIVERY WILL HAVE BEEN)
DULY EXECUTED BY THE COMPANY AND, WHEN DELIVERED IN ACCORDANCE WITH THE TERMS
HEREOF AND THEREOF, WILL CONSTITUTE THE VALID AND BINDING OBLIGATION OF THE
COMPANY ENFORCEABLE AGAINST THE COMPANY IN ACCORDANCE WITH ITS TERMS EXCEPT
(I) AS LIMITED BY APPLICABLE BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM
AND OTHER LAWS OF GENERAL APPLICATION AFFECTING ENFORCEMENT OF CREDITORS' RIGHTS
GENERALLY AND (II) AS LIMITED BY LAWS RELATING TO THE AVAILABILITY OF SPECIFIC
PERFORMANCE, INJUNCTIVE RELIEF OR OTHER EQUITABLE REMEDIES.
(D) NO CONFLICTS.
THE EXECUTION, DELIVERY AND PERFORMANCE OF THE TRANSACTION
DOCUMENTS BY THE COMPANY AND THE CONSUMMATION BY THE COMPANY OF THE OTHER
TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY DO NOT AND WILL NOT: (I) CONFLICT
WITH OR VIOLATE ANY PROVISION OF THE COMPANY'S OR ANY SUBSIDIARY'S CERTIFICATE
OR ARTICLES OF INCORPORATION, BYLAWS OR OTHER ORGANIZATIONAL OR CHARTER
DOCUMENTS, OR (II) CONFLICT WITH, OR CONSTITUTE A DEFAULT (OR AN EVENT THAT WITH
NOTICE OR LAPSE OF TIME OR BOTH WOULD BECOME A DEFAULT) UNDER, RESULT IN THE
CREATION OF ANY LIEN UPON ANY OF THE PROPERTIES OR ASSETS OF THE COMPANY OR ANY
SUBSIDIARY, OR GIVE TO OTHERS ANY RIGHTS OF TERMINATION, AMENDMENT, ACCELERATION
OR CANCELLATION (WITH OR WITHOUT NOTICE, LAPSE OF TIME OR BOTH) OF, ANY
AGREEMENT, CREDIT FACILITY, DEBT OR OTHER INSTRUMENT (EVIDENCING A COMPANY OR
SUBSIDIARY DEBT OR OTHERWISE) OR OTHER AGREEMENT OR UNDERSTANDING TO WHICH THE
COMPANY OR ANY SUBSIDIARY IS A PARTY OR BY WHICH ANY PROPERTY OR ASSET OF THE
COMPANY OR ANY SUBSIDIARY IS BOUND OR AFFECTED, OR (III) SUBJECT TO THE REQUIRED
APPROVALS AND ASSUMING THE ACCURACY OF THE REPRESENTATIONS AND WARRANTIES IN
SECTION 3.2, CONFLICT WITH OR RESULT IN A VIOLATION OF ANY LAW, RULE,
REGULATION, ORDER, JUDGMENT, INJUNCTION, DECREE OR OTHER RESTRICTION OF ANY
COURT OR GOVERNMENTAL AUTHORITY TO WHICH THE COMPANY OR A SUBSIDIARY IS SUBJECT
(INCLUDING FEDERAL AND STATE SECURITIES LAWS AND REGULATIONS), OR BY WHICH ANY
PROPERTY OR ASSET OF THE COMPANY OR A SUBSIDIARY IS BOUND OR AFFECTED; EXCEPT IN
THE CASE OF EACH OF CLAUSES (II) AND (III), SUCH AS COULD NOT HAVE A MATERIAL
ADVERSE EFFECT.
(E) FILINGS, CONSENTS AND APPROVALS.
THE COMPANY IS NOT REQUIRED TO OBTAIN ANY
CONSENT, WAIVER, AUTHORIZATION OR ORDER OF, GIVE ANY NOTICE TO, OR MAKE ANY
FILING OR REGISTRATION WITH, ANY COURT OR OTHER FEDERAL, STATE, LOCAL OR OTHER
GOVERNMENTAL AUTHORITY OR OTHER PERSON IN CONNECTION WITH THE EXECUTION,
DELIVERY AND PERFORMANCE BY THE COMPANY OF THE TRANSACTION DOCUMENTS, OTHER THAN
(I) FILINGS REQUIRED PURSUANT TO SECTION 4.6, (II) THE FILING WITH THE
COMMISSION OF THE REGISTRATION STATEMENT AND ANY OTHER FILINGS REQUIRED PURSUANT
TO THE REGISTRATION RIGHTS AGREEMENT, (III) THE NOTICE AND/OR APPLICATION(S) TO
EACH APPLICABLE TRADING MARKET FOR THE ISSUANCE AND SALE OF THE PREFERRED STOCK
AND WARRANTS AND THE LISTING OF THE UNDERLYING SHARES FOR TRADING THEREON IN THE
TIME AND MANNER REQUIRED THEREBY AND (IV) THE FILING OF A FORM D WITH THE
COMMISSION AND SUCH FILINGS AS ARE REQUIRED TO BE MADE