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Exhibit 4.6
EXHIBIT C
FORM OF COMPANY COUNSEL OPINION
Based on the foregoing, and subject to the assumptions and
qualifications set forth below, we are of the opinion that:
1. The Company and each of its subsidiaries is a corporation duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation, and has the requisite corporate power and
authority to conduct its business, and to own, lease and operate its properties,
as described in the Company's Annual Report on Form 10-K for the year ended
December 31, 1997. The Company and each of its subsidiaries is duly qualified as
a foreign corporation to do business and is in good standing in each
jurisdiction in which its ownership of property or the nature of the business
conducted by it makes such qualification necessary and in which the failure to
be so qualified or be in good standing would have a material adverse effect on
the business, operations, financial conditions or results of operations of the
Company and its subsidiaries taken as a whole or on the transactions
contemplated by the Securities Purchase Agreement or by the agreements and
instruments to be entered into in connection with the Securities Purchase
Agreement, or on the authority or ability of the Company to perform its
obligations under the Transaction Documents (as defined below) (a "MATERIAL
ADVERSE EFFECT").
2. The Company has the requisite corporate power and authority to
execute, deliver and perform its obligations under the Securities Purchase
Agreement, the Certificate of Designations, the Registration Rights Agreement
and the Irrevocable Transfer Agent Instructions (collectively, the "TRANSACTIONS
DOCUMENTS"), including issuance of the Preferred Shares and the Conversion
Shares in accordance with the terms thereof. The filing of the Certificate of
Designations and the execution and delivery of the Transaction Documents by the
Company and the consummation by it of the transactions contemplated therein have
been duly authorized by the Company's Board of Directors and no further consent
or authorization of the Company, its Board of Directors or its stockholders is
required therefor (except to the extent that stockholder approval may be
required pursuant to the rules of the Nasdaq National Market for the issuance of
a number of Conversion Shares greater than 19.99% of the number of shares of
Common Stock outstanding immediately prior to the Initial Closing Date). The
Transaction Documents have been duly executed and delivered by the Company and
the Certificate of Designations has been duly executed and properly filed by the
Company with the Secretary of the Commonwealth of Massachusetts in accordance
with Massachusetts Business Corporation Law (the "MBCL") and has become
effective under the MBCL. The Transaction Documents constitute the valid and
binding agreements of the Company, enforceable against the Company in accordance
with their respective terms, except as such enforceability may be limited by
general principles of equity or applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or
affecting generally, the enforcement of creditors' rights and remedies.
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3. The issuance and sale of the Preferred Shares has been duly
authorized, and when issued in accordance with the terms of the Securities
Purchase Agreement, the Preferred Shares will be validly issued, fully paid and
non-assessable and free of all taxes, liens, charges and preemptive rights with
respect to the issue thereof. The Conversion Shares are duly authorized and
reserved for issuance upon conversion of the Preferred Shares in accordance with
the Securities Purchase Agreement and the Certificate of Designations, and when
issued in accordance with the Securities Purchase Agreement, the Certificate of
Designations and the Conversion Shares will be validly issued, fully paid and
non-assessable and free of all taxes, liens, charges and preemptive rights with
respect to the issue thereof.
4. As of the date hereof, the authorized capital stock of the Company
consists of (i) _________ shares of Common Stock, par value $0.01 per share, of
which ______________ shares are issued and outstanding, and (ii) ____________
shares of Preferred Stock, par value $_____ per share, of which _______ shares
are issued and outstanding. None of such Common Stock or such Preferred Stock is
subject to preemptive rights or other rights of the stockholders of the Company
pursuant to the Articles of Incorporation or the By-laws or under the MBCL.
Except as set forth on Schedule 3(c) of the Securities Purchase Agreement, there
are no outstanding shares of capital stock or other securities convertible into
or exchangeable or exercisable for shares of the capital stock of the Company.
The rights, preferences and privileges of the Preferred Shares are as stated in
the Certificate of Designations. The Board of Directors of the Company has
reserved for issuance shares of Common Stock sufficient to provide for the
issuance of the Conversion Shares.
5. Subject to the accuracy of the Buyers' representations in Section 2
of the Securities Purchase Agreement, the Preferred Shares and the Conversion
Shares may be issued to you pursuant to the Transaction Documents without
registration under the 1933 Act or the securities laws of any state.
6. No authorization, approval, consent, filing or other order of any
Federal or state governmental body, regulatory agency, self-regulatory
organization or stock exchange or market, or the stockholders of the Company
(except to the extent that stockholder approval may be required pursuant to the
rules of the Nasdaq National Market for the issuance of a number of Conversion
Shares greater than 19.99% of the number of shares of Common Stock outstanding
immediately prior to the Initial Closing Date), or any court, or, to our
knowledge, any third party, is required to be obtained by the Company to enter
into and perform its obligations under the Transaction Documents or for the
issuance and sale of the Preferred Shares and the Conversion Shares as
contemplated by the Transaction Documents.
7. To our knowledge, and except as disclosed in the Securities Purchase
Agreement, there is no action, suit, proceeding, inquiry or investigation before
or by any court, public board or body or any governmental agency or
self-regulatory organization pending or threatened against the Company or any of
its subsidiaries or any of the properties of the Company or any of its
subsidiaries which might reasonably be expected to have a Material Adverse
Effect.
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8. The execution, delivery and performance by the Company of the
Transaction Documents, the consummation by the Company of the transactions
contemplated thereby and the compliance by the Company with the terms thereof
does not (a) violate, conflict with or constitute a default (or an event which,
with the giving of notice or lapse of time or both, constitutes or would
constitute a default) under (i) the Articles of Organization or the By-laws,
or (ii) any agreement, note, lease, mortgage, deed or other instrument to which
the Company is a party or by which the Company is bound and which the Company
has filed as an exhibit to its reports filed with the SEC under the 1934 Act or
which, to our knowledge, the Company otherwise is required or will be required
to file as an exhibit to its reports under the 1934 Act; or (b) result in any
violation of any statute, law, rule or regulation known to us to be applicable
to the Company or, to the best of our knowledge, any order, writ, injunction or
decree, if such violation would have a Material Adverse Effect.
9. The Company is not an "investment company" or any entity controlled
by an "investment company," as such terms are defined in the Investment Company
Act of 1940, as amended.
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In the process of our review of the SEC Documents, although we have not
engaged in any independent investigation and do not assume any responsibility
for the accuracy or completeness of the information contained therein, nothing
has come to our attention that would lead us to believe that any of such SEC
Documents contains any untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading as of its
filing date with the SEC.