THE
COMPANY OR ANY OF ITS SUBSIDIARIES IS A PARTY, OR (III) RESULT IN A VIOLATION OF
ANY LAW, RULE, REGULATION, ORDER, JUDGMENT OR DECREE (INCLUDING FEDERAL AND
STATE SECURITIES LAWS AND REGULATIONS AND THE RULES AND REGULATIONS OF THE
NASDAQ NATIONAL MARKET) APPLICABLE TO THE COMPANY OR ANY OF ITS SUBSIDIARIES OR
BY WHICH ANY PROPERTY OR ASSET OF THE COMPANY OR ANY OF ITS SUBSIDIARIES IS
BOUND OR AFFECTED.
(E)
CONSENTS.
ALL CONSENTS, AUTHORIZATIONS, ORDERS, FILINGS AND
REGISTRATIONS WHICH THE COMPANY IS REQUIRED TO OBTAIN TO EXECUTE, DELIVER OR
PERFORM ANY OF ITS OBLIGATIONS UNDER OR CONTEMPLATED BY THIS CONSENT AND
AMENDMENT AGREEMENT IN ACCORDANCE WITH ITS
3
terms have been obtained or effected on or prior to the date hereof.
The
Company and its Subsidiaries are unaware of any facts or circumstances which
might reasonably be expected to prevent the Company from obtaining or effecting
any of the foregoing.
The Company is not to its knowledge in violation of the
listing requirements of the Nasdaq National Market and has no knowledge of any
facts which would reasonably lead to delisting or suspension of its Common Stock
in the foreseeable future.
(F)
NO MATERIAL MISSTATEMENTS OR OMISSIONS.
THE INFORMATION PROVIDED
BY THE COMPANY TO BAYSTAR IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY
THIS CONSENT AND AMENDMENT AGREEMENT, TOGETHER WITH THE COMPANY'S FORM 10-K FOR
THE YEAR ENDED DECEMBER 31, 2002, AND ALL SUBSEQUENT FILINGS BY THE COMPANY WITH
THE SECURITIES AND EXCHANGE COMMISSION (THE "SEC FILINGS"), DOES NOT CONTAIN ANY
UNTRUE STATEMENT OF A MATERIAL FACT OR OMIT TO STATE A MATERIAL FACT NECESSARY
TO MAKE SUCH INFORMATION, IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH IT WAS
PROVIDED, NOT MISLEADING.
5.
BAYSTAR HEREBY REPRESENTS TO THE COMPANY THAT: (A) IT IS AN
"ACCREDITED" INVESTOR WITHIN THE MEANING OF THE ACT, (B) IT IS ACQUIRING THE
COMMON SHARES FOR INVESTMENT PURPOSES WITHOUT A VIEW TO A DISTRIBUTION THEROF IN
VIOLATION OF THE ACT, (C) IT HAS RECEIVED ALL INFORMATION THAT IT HAS REQUESTED
FROM THE COMPANY IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS
CONSENT AND AMENDMENT AGREEMENT, (D) IT IS AWARE THAT THE COMMON SHARES ARE
SUBJECT TO RESTRICTIONS ON RESALE UNDER FEDERAL AND STATE SECURITIES LAWS AND
THE CERTIFICATE REPRESENTING SUCH SHARES WILL BEAR LEGENDS TO THAT EFFECT, (E)
IT UNDERSTANDS THAT THE COMPANY IS RELYING ON ITS REPRESENTATIONS AND WARRANTIES
CONTAINED HEREIN TO DETERMINE, IN PART, THE EXEMPTION FROM REGISTRATION FOR THE
TRANSACTIONS CONTEMPLATED BY THIS CONSENT AND AMENDMENT AGREEMENT, (F) THIS
CONSENT AND AMENDMENT AGREEMENT HAS BEEN DULY AND VALIDLY AUTHORIZED, EXECUTED
AND DELIVERED ON BEHALF OF BAYSTAR AND REPRESENTS THE LEGAL, VALID AND BINDING
OBLIGATION OF BAYSTAR, ENFORCEABLE AGAINST BAYSTAR IN ACCORDANCE WITH ITS TERMS,
EXCEPT AS SUCH ENFORCEABILITY MAY BE LIMITED BY GENERAL PRINCIPLES OF EQUITY OR
APPLICABLE BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM, LIQUIDATION AND
OTHER SIMILAR LAWS RELATING TO, OR AFFECTING GENERALLY, THE ENFORCEMENT OF
APPLICABLE CREDITORS' RIGHTS AND REMEDIES, (G) THE EXECUTION, DELIVERY AND
PERFORMANCE OF CONSENT AND AMENDMENT AGREEMENT BY