ANY APPLICABLE STOCKHOLDER APPROVAL PROVISIONS, INCLUDING, WITHOUT LIMITATION,
UNDER THE RULES AND REGULATIONS OF ANY EXCHANGE OR AUTOMATED QUOTATION SYSTEM ON
WHICH ANY OF THE SECURITIES OF THE COMPANY ARE LISTED OR DESIGNATED.
NONE OF
THE COMPANY, ITS SUBSIDIARIES, THEIR AFFILIATES AND ANY PERSON ACTING ON THEIR
BEHALF WILL TAKE ANY ACTION OR STEPS REFERRED TO IN THE PRECEDING
8
SENTENCE THAT WOULD REQUIRE REGISTRATION OF ANY OF THE SECURITIES UNDER THE 1933
ACT OR CAUSE THE OFFERING OF THE SECURITIES TO BE INTEGRATED WITH OTHER
OFFERINGS.
(I)
DILUTIVE EFFECT.
THE COMPANY UNDERSTANDS AND ACKNOWLEDGES THAT THE NUMBER
OF CONVERSION SHARES ISSUABLE UPON CONVERSION OF THE NOTES WILL INCREASE IN
CERTAIN CIRCUMSTANCES.
SUBJECT TO THE STOCKHOLDER APPROVAL REQUIREMENT, THE
COMPANY FURTHER ACKNOWLEDGES THAT ITS OBLIGATION TO ISSUE CONVERSION SHARES UPON
CONVERSION OF THE NOTES IN ACCORDANCE WITH THIS AGREEMENT AND THE NOTES IS, IN
EACH CASE, ABSOLUTE AND UNCONDITIONAL REGARDLESS OF THE DILUTIVE EFFECT THAT
SUCH ISSUANCE MAY HAVE ON THE OWNERSHIP INTERESTS OF OTHER STOCKHOLDERS OF THE
COMPANY.
(J)
APPLICATION OF TAKEOVER PROTECTIONS; RIGHTS AGREEMENT.
THE COMPANY AND ITS
BOARD OF DIRECTORS HAVE TAKEN ALL NECESSARY ACTION, IF ANY, IN ORDER TO RENDER
INAPPLICABLE ANY CONTROL SHARE ACQUISITION, BUSINESS COMBINATION, POISON PILL
(INCLUDING ANY DISTRIBUTION UNDER A RIGHTS AGREEMENT) OR OTHER SIMILAR
ANTI-TAKEOVER PROVISION UNDER THE CERTIFICATE OF INCORPORATION (AS DEFINED IN
SECTION 3(Q)) OR THE LAWS OF THE STATE OF ITS INCORPORATION WHICH IS OR COULD
BECOME APPLICABLE TO ANY BUYER AS A RESULT OF THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE COMPANY'S ISSUANCE OF THE
SECURITIES AND ANY BUYER'S OWNERSHIP OF THE SECURITIES.
THE COMPANY HAS NOT
ADOPTED A STOCKHOLDER RIGHTS PLAN OR SIMILAR ARRANGEMENT RELATING TO
ACCUMULATIONS OF BENEFICIAL OWNERSHIP OF COMPANY COMMON STOCK OR A CHANGE IN
CONTROL OF THE COMPANY.
(K)
SEC DOCUMENTS; FINANCIAL STATEMENTS.
SINCE DECEMBER 31, 2000, THE COMPANY
HAS FILED ALL REPORTS, SCHEDULES, FORMS, STATEMENTS AND OTHER DOCUMENTS REQUIRED
TO BE FILED BY IT WITH THE SEC PURSUANT TO THE REPORTING REQUIREMENTS OF THE
1934 ACT (ALL OF THE FOREGOING FILED PRIOR TO THE DATE HEREOF AND ALL EXHIBITS
INCLUDED THEREIN AND FINANCIAL STATEMENTS AND SCHEDULES THERETO AND DOCUMENTS
INCORPORATED BY REFERENCE THEREIN BEING HEREINAFTER REFERRED TO AS THE "SEC
DOCUMENTS").
THE COMPANY HAS DELIVERED TO THE BUYERS OR THEIR RESPECTIVE
REPRESENTATIVES TRUE, CORRECT AND COMPLETE COPIES OF THE SEC DOCUMENTS NOT
AVAILABLE ON THE EDGAR SYSTEM.
AS OF THEIR RESPECTIVE DATES, THE SEC DOCUMENTS
COMPLIED IN ALL MATERIAL RESPECTS WITH THE REQUIREMENTS OF THE 1934 ACT AND THE
RULES AND REGULATIONS OF THE SEC PROMULGATED THEREUNDER APPLICABLE TO THE SEC
DOCUMENTS, AND NONE OF THE SEC DOCUMENTS, AT THE TIME THEY WERE FILED WITH THE
SEC, CONTAINED ANY UNTRUE STATEMENT OF A MATERIAL FACT OR OMITTED 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.
AS OF THEIR RESPECTIVE DATES, THE FINANCIAL STATEMENTS