Exhibit 10.01
Mpower Holding Corporation
(a Delaware corporation)
1,988,894 Shares
Common Stock
(par value $0.001)
SUBSCRIPTION AGREEMENT
----------------------
January 1, 2005
MCCC ICG Holdings, LLC
c/o Columbia Capital LLC
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Ladies and Gentlemen:
Mpower Holding Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell to MCCC ICG Holdings, LLC (the "Buyer") 1,988,894
shares (the "Securities") of its common stock, par value $0.001 per share (the
"Common Stock"). Capitalized terms used herein and not otherwise defined herein
have the respective meanings specified in the Prospectus.
Section 1. Representations and Warranties. (a) The Company represents
and warrants to and agrees with the Buyer as of the date hereof and as of the
Closing Time as follows:
(i) A registration statement on Form S-3 (No. 333-112457) related to
the Securities, as amended by Amendment Nos. 1, 2 and 3 thereto, has been
filed with the Securities and Exchange Commission (the "Commission"), under
the Securities Act of 1933, as amended (the "1933 Act"), which registration
statement, as amended, has been declared effective by the Commission on May
6, 2004 and true and complete copies of which have heretofore been delivered
to you. Such registration statement, in the form in which it was declared
effective, as amended through the date hereof, including all documents
incorporated or deemed to be incorporated by reference therein through the
date hereof, is hereinafter referred to as the "Registration Statement."
Promptly after the execution and delivery of this subscription agreement
(the "Agreement"), the Company will prepare and file a prospectus supplement
relating to the Securities in accordance with the provisions of Rule 424(b)
under the rules and regulations of the Commission under the 1933 Act (the
"1933 Act Regulations"). Such prospectus supplement in the form first
furnished to the Buyer, together with the prospectus included in the
Registration Statement at the time it was declared effective and all
documents incorporated therein by reference, is herein called the
"Prospectus." For purposes of this Agreement, all
references to the Registration Statement, the Prospectus or any amendment or
supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("XXXXX").
(ii) At the respective times the Registration Statement and any
post-effective amendments thereto became effective, at the date hereof and
at the Closing Time (as defined below), the Registration Statement and any
amendments and supplements thereto complied and will comply in all material
respects with the requirements of the 1933 Act and the 1933 Act Regulations
and did not and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading. Each of the Registration
Statement and any post-effective amendment thereto has become effective
under the 1933 Act and no stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment thereto has been
issued under the 1933 Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company, are
contemplated by the Commission, and any request on the part of the
Commission for additional information has been complied with. Neither the
Prospectus nor any amendments or supplements thereto, at the time the
Prospectus or any such amendment or supplement was issued and at the Closing
Time, included or will include an untrue statement of a material fact or
omitted or will omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; except that this representation and warranty does not
apply to statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by the Buyer expressly
for use in the Prospectus or any amendment or supplement thereto.
(iii) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the Prospectus, at the time they
were or hereafter are filed with the Commission, complied and will comply in
all material respects with the requirements of the Securities Exchange Act
of 1934, as amended (the "1934 Act") and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), and, when read together
and with the other information in the Prospectus, at the respective times
the Registration Statement and any amendments thereto became effective, at
the date hereof, at the time the Prospectus was issued and at the Closing
Time, did not, do not and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(iv) The Securities issuable in accordance with this Agreement will be,
when so issued, duly authorized, validly issued, fully paid and
non-assessable and free of preemptive rights. Except as set forth in this
Agreement, the Securities, when issued in accordance with and pursuant to
this Agreement, will not be subject to any transfer restrictions under (a)
any provision of the certificate of incorporation, as amended, or bylaws, as
amended, of the Company, or (b) any contract to which the Company is a
party.
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(v) The Securities conform in all material respects to the description
of the Common Stock contained in the Company's registration statement on
Form 8-A, filed pursuant to Section 12(g) of the 1934 Act on May 18, 2004,
which description is incorporated by reference in the Prospectus.
(vi) The common stock of the Company is listed on the American Stock
Exchange and we have filed notice with the American Stock Exchange to list
the Securities.
(vii) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and has the
requisite corporate power and authority to carry on its business as now
conducted. The Company and its subsidiaries are duly qualified or licensed
to do business and are in good standing in each jurisdiction in which the
nature of such party's business or the ownership, leasing or operation of
such party's properties make such qualification or licensing necessary,
except in each case where the failure to be so qualified or licensed would
not reasonably be expected to (a) adversely affect the ability of the
Company to carry out its obligations under, and to consummate the
transactions contemplated by, this Agreement, or (b) have, individually or
in the aggregate, a Material Adverse Effect. For the purposes of this
Agreement, the term "Material Adverse Effect" means, with respect to the
Company, any change or effect that, individually or in the aggregate with
any other changes and effects, is or is reasonably likely to (i) be
materially adverse to the business, assets, liabilities, condition
(financial or otherwise) or results of operations of the Company and its
subsidiaries taken as a whole or (ii) prevent or materially delay the
consummation of the transactions contemplated by this Agreement.
(viii) The Company has all requisite power and authority to enter into
this Agreement and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement by the Company and the consummation
by the Company of the transactions contemplated hereby have been duly
authorized by all necessary action on the part of the Company, and no other
corporate proceedings on the part of the Company are necessary to authorize
this Agreement or to consummate the transactions contemplated hereby. This
Agreement has been duly executed and delivered by the Company at the time of
execution and delivery and, assuming the due authorization, execution and
delivery by the other party hereto, shall constitute the legal, valid and
binding obligation of the Company, enforceable against the Company in
accordance with its terms.
(ix) The execution and delivery by the Company of this Agreement at the
time of execution and delivery and the consummation of the transactions
contemplated hereby will not:
(A) violate any provision of the certificate of incorporation or
by-laws (or equivalent organizational documents) of the Company or any
of the Company's subsidiaries;
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(B) violate, conflict with, or result in a breach of any provision
of, or constitute a default (or an event which, with the giving of
notice, the passage of time or both, would constitute a default) under,
require the consent of any Person or the giving of notice to any Person
under, or entitle any Person (with the giving of notice, the passage of
time or both) to terminate, accelerate, modify, impose any monetary or
other economic penalty or call a default under, or result in the
creation of any encumbrance upon any of the properties or assets of the
Company or any of the Company's subsidiaries under, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, deed
of trust, intellectual property or other licenses (except with respect
to consents or approvals with the Federal Communications Commission
(the "FCC"), any state public service or public utilities commission
(each, a "State PUC") or any municipal franchising authority (each, a
"Municipal Franchising Authority") referred to in subsection (D)
below), contract, undertaking, agreement, lease or other instrument or
obligation to which the Company or any of the Company's subsidiaries is
a party, except for such violations, conflicts, breaches or defaults
which would not, individually or in the aggregate, result in a Material
Adverse Effect. For the purposes of this Agreement, the term "Person"
means an individual, corporation, partnership, limited liability
company, joint venture, association, trust, unincorporated organization
or other entity;
(C) violate in any material respect any order, writ, injunction,
decree, statute, rule or regulation (except with respect to consents or
approvals with the FCC, State PUCs or Municipal Franchising Authorities
referred to in subsection (D) below) applicable to the Company or any
of the Company's subsidiaries; or
(D) require any material consent or approval of or registration or
filing by the Company or any affiliate of the Company with any third
party or federal, national, supranational, state, county, provincial,
local, foreign or similar government, governmental agency,
administrative or regulatory authority, department, commission, board,
agency or instrumentality, or any court, tribunal or judicial or
arbitral body which has not been received or made except for (i) any
such consent or approval of or registration or filing with the FCC, any
State PUC, and any Municipal Franchising Authority having regulatory
authority over the business of the Company or the Company's
subsidiaries as conducted in any given jurisdiction and (ii) the
requirements of the 1933 Act, the 1934 Act, "blue sky" laws and state
takeover laws.
(x) (A) As of December 29, 2004, the authorized capital stock of the
Company consists of (i) 1,000,000,000 shares of Common Stock, 78,570,772
shares of which are issued and outstanding and (ii) 50,000,000 shares of
preferred stock, par value $0.001 per share, 100,000 shares of which are
designated Series A Preferred Stock, no shares of which are issued and
outstanding.
(B) Under the Company's Stock Option Plan I and II (the "Plan"),
(i) 631,006 shares of Common Stock have been issued pursuant to
restricted stock purchase agreements and/or the exercise of outstanding
options, (ii) options to
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purchase 18,546,590 shares of Common Stock have been granted and
are currently outstanding, and (iii) 4,486,626 shares of Common
Stock remain available for future issuance to officers, directors,
employees and consultants of the Company and its affiliates.
(C) Other than (i) shares issuable under the Company's Master
Sales Agent Warrant Program, pursuant to which warrants to purchase
260,430 shares of Common Stock have been granted and are currently
outstanding and 739,570 shares remain available for future issuance to
master sales agents of the Company and its affiliates (ii) warrants to
purchase 2,937,548 shares of Common Stock that have been issued and are
currently outstanding, and an additional 83,856 that are contingently
issuable in the event that certain warrants held by investors are
exercised and (iii) the shares reserved for issuance under the Plan and
those shares that may be issued pursuant to this Agreement, there are
no outstanding options, warrants, rights (including conversion or
preemptive rights and rights of first refusal), proxy or stockholder
agreements, or agreements of any kind for the purchase or acquisition
from the Company of any of the Company's securities.
(D) As of the date hereof, other than as set forth in (A), (B) and
(C) above, there has been no additional issuances of the Company's
equity, other than ordinary course vesting or exercise of stock options
under the Plan.
(xi) Since September 30, 2004, (i) the Company and its subsidiaries
have conducted their respective businesses only in the ordinary course of
business and (ii) there shall not have occurred one or more events or
conditions and there shall not have arisen any circumstances that,
individually or in the aggregate, have had or are reasonably likely to have
a Material Adverse Effect.
(b) Any certificate signed by any officer of the Company or any of it
subsidiaries and delivered to the Buyer or to counsel for the Buyer shall be
deemed a representation and warranty by the Company to the Buyer as to the
matters covered thereby.
Section 2. Purchase, Sale and Delivery of the Securities; Closing. (a)
On the basis of the representations and warranties herein contained, and subject
to the terms and conditions herein set forth, the Company agrees to sell to the
Buyer, and the Buyer agrees to purchase from the Company, at an aggregate
purchase price of $2,500,000, the Securities.
(b) Payment of the purchase price, and delivery of certificates, for
the Securities shall be made at the offices of Shearman & Sterling LLP, 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 or at such other place as shall be agreed
upon in writing by the Buyer and the Company on January 5, 2005 (such date and
time of payment and delivery being herein called the "Closing Time").
Certificates for the Securities, if any, shall be in such denominations and
registered in such names as the Buyer may request in writing at least two
business days before the Closing Time.
(c) At the Closing Time, payment shall be made to an account, or
accounts, designated by the Company in the aggregate amount of $2,500,000 in
immediately available
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funds payable to the order of the Company against delivery to the Buyer of
certificates for the Securities.
Section 3. Certain Covenants of the Company. The Company covenants with
you that it will comply with the 1933 Act and the 1933 Act Regulations and the
1934 Act and the 1934 Act Regulations so as to permit the completion of the
distribution of the Securities as contemplated in this Agreement and in the
Prospectus.
Section 4. Payment of Expenses. (a) Whether or not any sale of the
Securities is consummated, the Company will pay and bear all costs and expenses
incident to the performance of its obligations under this Agreement, including
(i) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and of each
amendment thereto, (ii) the preparation, reproduction and distribution of the
Securities and this Agreement, (iii) the delivery of the certificates for the
Securities to the Buyer, (iv) the fees and disbursements of the Company's
counsel and accountants, (v) the delivery to the Buyer of copies of the
Prospectus and any amendments or supplements thereto, (vi) the fees and expenses
of any transfer agent or registrar for the Securities and (vii) the fees and
expenses incurred in connection with the listing of the Securities on the
American Stock Exchange.
(b) Whether or not any sale of the Securities is consummated, the Buyer
will pay and bear all costs and expenses incident to the performance of its
obligations under this Agreement, including the fees and disbursements of the
Buyer's counsel.
Section 5. Conditions of Buyer's Obligations. The obligations of the
Buyer to purchase and pay for the Securities are subject to the accuracy of the
representations and warranties of the Company contained herein, to the
performance by the Company of its obligations hereunder, and to the following
further conditions:
(a) The Registration Statement shall remain effective and at the
Closing Time no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the Buyer.
(b) At the Closing Time, each of you shall have received a signed
opinion of Shearman & Sterling LLP, counsel for the Company, dated as of the
Closing Time, in substantially the form attached hereto as Exhibit A.
(c) At the Closing Time, (i) the Company shall have in all material
respects complied with all agreements and satisfied all conditions on its part
to be performed or satisfied at or prior to the Closing Time and (ii) the
representations and warranties of the Company set forth herein shall be true and
correct in all material respects, except to the extent such representations and
warranties are expressly stated to be limited to another date, in which case
such representations and warranties shall be true and correct as of such other
date. At the Closing Time, the Buyer shall have received a certificate of an
executive officer of the Company, dated as of the Closing Time, to such effect.
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(d) At the Closing Time, the transactions (the "Transaction")
contemplated by the Asset Purchase Agreement dated October 22, 2004 by and among
the Buyer, ICG Communications, Inc., the Company and Mpower Communications Corp.
(the "Asset Purchase Agreement") shall have been consummated in accordance with
the terms of such agreement.
If any of the conditions specified in this Section 5 shall not have
been fulfilled when and as required by this Agreement, this Agreement may be
terminated by the Buyer on notice to the Company at any time at or prior to the
Closing Time, and such termination shall be without liability of any party to
any other party, except as provided in Section 4. Notwithstanding any such
termination, the provisions of Sections 1 (insofar as Section 7 provides for the
survival of such representations or warranties), and 7 shall remain in effect.
Section 6. Conditions of Company's Obligations. The obligations of the
Company to sell the Securities are subject to the performance by the Buyer of
its obligations hereunder, and to the following further conditions:
(a) At the Closing Time, the Transaction shall have been consummated in
accordance with the terms of such agreement.
(b) At the Closing Time, no stop order suspending the effectiveness of
the Registration Statement shall have been issued and no proceedings for that
purpose shall have been initiated or threatened by the Commission.
If any of the conditions specified in this Section 6 shall not have
been fulfilled when and as required by this Agreement, this Agreement may be
terminated by the Company on notice to the Buyer at any time at or prior to the
Closing Time, and such termination shall be without liability of any party to
any other party, except as provided in Section 4. Notwithstanding any such
termination, the provisions of Sections 1 (insofar as Section 7 provides for the
survival of such representations or warranties), and 7 shall remain in effect.
Section 7. Survival of Certain Representations and Obligations. The
respective agreements, representations, warranties and other statements of the
Company or its officers and of the Buyer set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation,
or statement as to the results thereof, made by or on behalf of the Buyer, the
Company or any of their respective representatives, officers or directors or any
controlling person, and will survive delivery of and payment for the Securities.
If for any reason the purchase of the Securities by the Buyer is not
consummated, the Company and the Buyer shall each remain responsible for the
respective expenses to be paid or reimbursed by it pursuant to Section 4.
Section 8. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if delivered,
mailed or transmitted by any standard form of telecommunication. Notices to the
Buyer shall be directed to the Buyer c/o Columbia Capital LLC, 000 Xxxxx Xxxxx
Xxxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000, Attention: Xxxx Xxxxxx with copies to
Xxxxxxx, Xxxxxxxxx & Xxxxxx PC, 0000 Xxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx
00000, Attention: Xxxxx X. Xxxxxxx, Esq.; and notices to the Company shall be
directed to it at 000 Xxxxx'x Xxxxx, Xxxxxxxxx, Xxx Xxxx 00000, Attention: Chief
Executive
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Officer with copies to Shearman & Sterling LLP at 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxxxx, Esq.
Section 9. Parties. This Agreement is made solely for the benefit of
the Buyer, the Company and, to the extent expressed, any person who controls the
Company or any Buyer within the meaning of Section 15 of the 1933 Act, and the
directors of the Company, its officers and their respective executors,
administrators, successors and assigns and no other person shall acquire or have
any right under or by virtue of this Agreement. The term successors and assigns
shall not include any purchaser, as a purchaser, from the Buyer of the
Securities.
Section 10. Governing Law and Time. This Agreement shall be governed by
the laws of the State of New York. Unless otherwise noted, specified times of
the day refer to New York City time.
Section 11. Waiver of Jury Trial. Each of the Buyer and the Company (on
its behalf and, to the extent permitted by applicable law, on behalf of its
stockholders and affiliates) waives all right to trial by jury in any action,
proceeding or counterclaim (whether based upon contract, tort or otherwise) in
any way arising out of or relating to this Agreement.
Section 12. Counterparts. This Agreement may be executed in one or more
counterparts and when a counterpart has been executed by each party, all such
counterparts taken together shall constitute one and the same agreement.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between the Company and the Buyer in
accordance with its terms.
Very truly yours,
MPOWER HOLDING CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President,
General Counsel and Secretary
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Confirmed and accepted as of
the date first above written:
MCCC ICG HOLDINGS, LLC
By: /s/ Xxxxxx X. Xxxxxxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Vice President and Secretary
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Mpower Holding Corporation
(a Delaware corporation)
1,988,894 Shares
Common Stock
(par value $0.001)
SUBSCRIPTION AGREEMENT
Dated: January 1, 2005
EXHIBIT A
FORM OF OPINION OF SHEARMAN & STERLING LLP
Shearman & Sterling LLP Letterhead
[ ], 2005
MCCC ICG Holdings, LLC
c/o Columbia Capital LLC
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Mpower Holding Corporation
1,988,894 Shares of Common Stock
--------------------------------
Ladies and Gentlemen:
We have acted as counsel to Mpower Holding Corporation, a Delaware
corporation (the "Company"), in connection with the negotiation of the Asset
Purchase Agreement between the Company, ICG Communications, Inc., MCCC ICG
Holdings, LLC and Mpower Communications Corp., dated as of October 22, 2004 and
in connection with the purchase and sale of 1,988,894 shares (the "Shares") of
the Company's common stock, par value $0.001 per share (the "Common Stock"),
pursuant to the Subscription Agreement, dated as of January 1, 2005 (the
"Subscription Agreement"), between the Company and you (the "Transaction"). This
opinion is furnished to you pursuant to Section 5(b) of the Subscription
Agreement.
In that connection, we have reviewed an original or a copy of:
(a) The Subscription Agreement.
(b) The registration statement on Form S-3 (Registration Statement No.
333-112457) filed by the Company under the Securities Act of 1933, as
amended (the "Securities Act"), with the Securities and Exchange Commission
(the "Commission") on February 3, 2004.
(c) The amendments to the registration statement on Form S-3 filed by
the Company with the Commission on April 1, 2004, April 23, 2004 and May 4,
2004 (the registration statement, as amended, at the time it became
effective, including the documents incorporated by reference therein, being
hereinafter referred to as the "Registration Statement").
(d) The base prospectus dated May 4, 2004 relating to the offering of
senior debt securities, subordinated debt securities, common stock,
preferred stock, depositary
shares, warrants, stock purchase contracts and stock purchase units
generally, which is included as part of the Registration Statement.
(e) The prospectus supplement dated [ ], 2005 relating to the Shares,
in the form in which it was filed pursuant to Rule 424(b) under the
Securities Act.
We have also reviewed the following:
(a) The certificate of incorporation and by-laws of the Company, as
amended through July 30, 2002.
(b) The resolutions of the Company's board of directors approving the
Transaction.
(c) Originals or copies of such other corporate records of the Company,
certificates of public officials and of officers of the Company and
agreements and other documents as we have deemed necessary as a basis for
the opinions expressed below.
In our review of the foregoing documents, we have assumed:
(a) The genuineness of all signatures.
(b) The authenticity of the originals of the documents submitted to us.
(c) The conformity to authentic originals of any documents submitted to
us as copies.
(d) As to matters of fact, the truthfulness of the representations made
in the Subscription Agreement and the other documents referred to herein and
in certificates of public officials and officers of the Company.
(e) That the Subscription Agreement is the legal, valid and binding
obligation of each party thereto, other than the Company, enforceable
against each such party in accordance with its terms.
(f) That:
(i) The Company has full power to execute, deliver and perform, and
has duly executed and delivered (except to the extent Generally
Applicable Law is applicable to such execution and delivery), the
Subscription Agreement.
(ii) The execution, delivery and performance by the Company of the
Subscription Agreement does not:
(A) except with respect to Generally Applicable Law, violate
any law, rule or regulation applicable to it; or
(B) result in any conflict with or breach of any agreement or
document binding on it of which any addressee hereof has knowledge,
has received notice or has reason to know.
(iii) Except with respect to Generally Applicable Law, no
authorization, approval or other action by, and no notice to or filing
with, any governmental authority or regulatory body or (to the extent
the same is required under any agreement or document binding on it of
which an addressee has knowledge, has received notice or has reason to
know) any other third party is required for the due execution, delivery
or performance by the Company of the Subscription Agreement, or if any
such authorization, approval, consent, action, notice or filing is
required, it has been duly obtained, taken, given or made and is in
full force and effect.
We have not independently established the validity of the foregoing assumptions.
"Generally Applicable Law" means the federal law of the United States
of America, and the law of the State of New York (including the rules or
regulations promulgated thereunder or pursuant thereto), that a New York lawyer
exercising customary professional diligence would reasonably be expected to
recognize as being applicable to the Company, the Subscription Agreement or the
Transaction and for purposes of our opinions expressed below, the General
Corporation Law of the State of Delaware. Without limiting the generality of the
foregoing definition of Generally Applicable Law, the term "Generally Applicable
Law" does not include any law, rule or regulation that is applicable to the
Company, the Subscription Agreement or the Transaction solely because such law,
rule or regulation is part of a regulatory regime, including any
telecommunications law or regulations, applicable to the specific assets or
business of any party to the Subscription Agreement or any of its affiliates.
On [ ], 2005, a member of the staff of the Commission informed us
orally that no stop order suspending the effectiveness of the Registration
Statement has been issued under the Securities Act. To our knowledge, no
proceedings for that purpose have been initiated or are pending or threatened by
the Commission.
Based upon the foregoing and upon such other investigation as we have
deemed necessary and subject to the qualifications set forth below, we are of
the opinion that:
1. The Company is a corporation duly incorporated, validly existing and
in good standing under the law of the State of Delaware, with corporate
power and authority under such law to own, lease and operate its properties
and conduct its business as described in the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 2003.
2. The Company has the corporate power to enter into and perform its
obligations under the Subscription Agreement and to issue the Shares. The
Subscription Agreement has been duly authorized, executed and delivered by
the Company.
3. The Shares have been duly authorized by the Company and, when issued
and delivered as provided in the Subscription Agreement, the Shares will be
validly
issued, fully paid and non-assessable, and the issuance of such Shares will
not be subject to preemptive rights pursuant to the General Corporation Law
of the State of Delaware or the certificate of incorporation or by-laws of
the Company.
Our opinions expressed above are limited to Generally Applicable Law
and we do not express any opinion herein concerning any other law.
This opinion letter is being furnished to you solely for your benefit
in connection with your purchase of the Shares. This opinion letter may not be
relied upon by you for any other purpose without our prior written consent.
This opinion letter speaks only as of the date hereof. We expressly
disclaim any responsibility to advise you of any development or circumstance of
any kind, including any change of law or fact, that may occur after the date of
this opinion letter that might affect the opinions expressed herein.
Very truly yours,
LJ/DLF/CEH/RL
STG
