AN ARM'S-LENGTH PURCHASER WITH RESPECT TO THE TRANSACTION DOCUMENTS
AND THE TRANSACTIONS CONTEMPLATED THEREBY.
THE COMPANY FURTHER ACKNOWLEDGES
THAT THE INVESTOR IS NOT ACTING AS A FINANCIAL ADVISOR OR FIDUCIARY OF THE
COMPANY (OR IN ANY SIMILAR CAPACITY) WITH RESPECT TO THE TRANSACTION DOCUMENTS
AND THE TRANSACTIONS CONTEMPLATED THEREBY AND ANY ADVICE GIVEN BY THE INVESTOR
OR ANY OF ITS REPRESENTATIVES OR AGENTS IN CONNECTION WITH THE TRANSACTION
DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED THEREBY IS MERELY INCIDENTAL TO THE
INVESTOR'S PURCHASE OF THE PURCHASED SECURITIES.
THE COMPANY FURTHER REPRESENTS
TO THE INVESTOR THAT THE COMPANY'S DECISION TO ENTER INTO THIS AGREEMENT AND THE
OTHER TRANSACTION DOCUMENTS HAS BEEN BASED SOLELY ON THE INDEPENDENT EVALUATION
OF THE TRANSACTIONS CONTEMPLATED HEREBY BY THE COMPANY AND ITS REPRESENTATIVES.
SECTION 4.33
REGULATION M COMPLIANCE.
THE COMPANY HAS NOT, AND TO ITS
KNOWLEDGE NO ONE ACTING ON ITS BEHALF HAS, (I) TAKEN, DIRECTLY OR INDIRECTLY,
ANY ACTION DESIGNED TO CAUSE OR TO RESULT IN THE STABILIZATION OR MANIPULATION
OF THE PRICE OF ANY SECURITY OF THE COMPANY TO FACILITATE THE SALE OR RESALE OF
ANY OF THE PURCHASED SECURITIES, (II) SOLD, BID FOR, PURCHASED, OR, PAID ANY
COMPENSATION FOR SOLICITING PURCHASES OF, ANY OF THE PURCHASED SECURITIES, OR
(III) PAID OR AGREED TO PAY TO ANY PERSON ANY COMPENSATION FOR SOLICITING
ANOTHER TO PURCHASE ANY OTHER SECURITIES OF THE COMPANY, OTHER THAN, IN THE CASE
OF CLAUSES (II) AND (III), COMPENSATION PAID TO THE COMPANY'S PLACEMENT AGENT IN
CONNECTION WITH THE PLACEMENT OF THE PURCHASED SECURITIES.
SECTION 4.34
FORM S-3 ELIGIBILITY.
THE COMPANY IS PRESENTLY NOT ELIGIBLE TO
REGISTER THE RESALE OF THE SECURITIES FOR RESALE BY THE INVESTOR ON FORM S-3
PROMULGATED UNDER THE SECURITIES ACT TILL AUGUST 2008 AND THEREFORE WILL
REGISTER THE RESALE OF THE SECURITIES FOR RESALE ON FORM S-1 PROMULGATED UNDER
THE SECURITIES ACT.
SECTION 4.35
EMPLOYEE BENEFIT PLANS.
(A)
EXCEPT AS SET FORTH IN THE SCHEDULE OF EXCEPTIONS, (I) THE COMPANY DOES
NOT MAINTAIN OR CONTRIBUTE TO OR HAVE ANY OBLIGATION TO CONTRIBUTE TO, OR HAVE
ANY DIRECT OR INDIRECT LIABILITY, WHETHER CONTINGENT OR OTHERWISE, WITH RESPECT
TO ANY PLAN, PROGRAM, AGREEMENT, ARRANGEMENT OR COMMITMENT WHICH IS AN
EMPLOYMENT, CONSULTING OR DEFERRED COMPENSATION AGREEMENT, OR AN EXECUTIVE
COMPENSATION, INCENTIVE BONUS OR OTHER BONUS, EMPLOYEE PENSION, PROFIT-SHARING,
SAVINGS, RETIREMENT, STOCK OPTION, STOCK PURCHASE, SEVERANCE PAY, LIFE, HEALTH,
DISABILITY OR ACCIDENT INSURANCE PLAN, OR VACATION, OR OTHER EMPLOYEE BENEFIT
PLAN, PROGRAM, ARRANGEMENT, AGREEMENT OR COMMITMENT, WHETHER OR NOT SUBJECT TO
ERISA (AS DEFINED BELOW) (INCLUDING ANY FUNDING MECHANISM NOW IN EFFECT OR
REQUIRED IN THE FUTURE AS A RESULT OF THE TRANSACTION CONTEMPLATED BY THIS
AGREEMENT OR OTHERWISE), WHETHER ORAL OR WRITTEN (INDIVIDUALLY A "PLAN," AND
COLLECTIVELY, THE "PLANS"); AND (II) NEITHER THE COMPANY NOR ANY PERSON WHO
WOULD BE CONSIDERED A SINGLE EMPLOYER WITH THE COMPANY PURSUANT TO
SECTION 414(B), (C), (M) OR (O) OF THE CODE (AS DEFINED BELOW) MAINTAINS OR
CONTRIBUTES TO, OR HAS HAD DURING THE PRECEDING SIX YEARS MAINTAINED OR
CONTRIBUTED TO, OR HAS HAD DURING