THE INVESTOR DTC ACCOUNT.
(C)
THE INVESTOR SHALL HAVE RECEIVED THE OPINION OF WILSON SONSINI
GOODRICH & ROSATI, PC, THE COMPANY'S OUTSIDE COUNSEL, IN SUBSTANTIALLY THE FORM
OF EXHIBIT B ATTACHED HERETO.
(D)
THE COMPANY SHALL HAVE DELIVERED TO THE INVESTOR A CERTIFICATE,
EXECUTED BY THE SECRETARY OF THE COMPANY AND DATED AS OF THE DATE HEREOF, AS TO
THE RESOLUTIONS AUTHORIZING THE TRANSACTIONS SET FORTH HEREIN AS ADOPTED BY THE
COMPANY'S BOARD OF DIRECTORS IN A FORM REASONABLY ACCEPTABLE TO THE INVESTOR
(THE "RESOLUTIONS").
(E)
THE CONVERSION SHARES AND THE INVESTOR CONVERSION SHARES SHALL BE
LISTED UPON THE PRINCIPAL MARKET.
(F)
THE REPRESENTATIONS AND WARRANTIES OF THE COMPANY SHALL BE TRUE
AND CORRECT AS OF THE DATE WHEN MADE AND AS OF THE CLOSING DATE AS THOUGH MADE
AT THAT TIME (EXCEPT FOR REPRESENTATIONS AND WARRANTIES THAT SPEAK AS OF A
SPECIFIC DATE) AND THE COMPANY SHALL HAVE PERFORMED, SATISFIED AND COMPLIED IN
ALL MATERIAL RESPECTS WITH THE COVENANTS, AGREEMENTS AND CONDITIONS REQUIRED BY
THE TRANSACTION DOCUMENTS TO BE PERFORMED, SATISFIED OR COMPLIED WITH BY THE
COMPANY AT OR PRIOR TO THE CLOSING DATE.
THE INVESTOR SHALL HAVE RECEIVED A
CERTIFICATE, EXECUTED BY THE CHIEF EXECUTIVE OFFICER OF THE COMPANY, DATED AS OF
THE CLOSING DATE, TO THE FOREGOING EFFECT AND AS TO SUCH OTHER MATTERS AS MAY BE
REASONABLY REQUESTED BY THE INVESTOR IN THE FORM ATTACHED HERETO AS EXHIBIT C.
(G)
THE COMPANY SHALL HAVE OBTAINED ALL GOVERNMENTAL, REGULATORY OR
THIRD PARTY CONSENTS AND APPROVALS, IF ANY, NECESSARY FOR THE ISSUANCE OF THE
CONVERSION SHARES AND THE AMENDED AND RESTATED NOTES.
5
(H)
THE COMPANY SHALL HAVE DELIVERED TO THE INVESTOR SUCH OTHER
DOCUMENTS RELATING TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AS THE
INVESTOR OR ITS COUNSEL MAY REASONABLY REQUEST.
7.
MISCELLANEOUS.
(A)
GOVERNING LAW; JURISDICTION; JURY TRIAL.
ALL QUESTIONS CONCERNING
THE CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS AGREEMENT
SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE
STATE OF NEW YORK OR ANY OTHER JURISDICTIONS) THAT WOULD CAUSE THE APPLICATION
OF THE LAWS OF ANY JURISDICTIONS OTHER THAN THE STATE OF NEW YORK.
EACH PARTY
HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE STATE AND
FEDERAL COURTS SITTING IN THE CITY OF NEW YORK, BOROUGH OF MANHATTAN, FOR THE
ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR WITH ANY
TRANSACTION CONTEMPLATED HEREBY OR DISCUSSED HEREIN, AND HEREBY IRREVOCABLY
WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING, ANY CLAIM
THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH COURT, THAT
SUCH SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM OR THAT THE
VENUE OF SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER.
EACH PARTY HEREBY
IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS TO PROCESS BEING
SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF TO SUCH