OF THE NOTE, NO APPROVAL, CONSENT, QUALIFICATION, ORDER,
EXEMPTION, AUTHORIZATION OR OTHER ACTION BY, OR NOTICE TO, OR FILING WITH, ANY
GOVERNMENTAL AUTHORITY, OR ANY OTHER PERSON IN RESPECT OF ANY REQUIREMENT OF
LAW, ORDER, CONTRACT OR OTHERWISE, AND NO LAPSE OF A WAITING PERIOD UNDER A
REQUIREMENT OF LAW, IS NECESSARY OR REQUIRED IN CONNECTION WITH THE EXECUTION,
DELIVERY OR PERFORMANCE BY THE PURCHASER, OR ENFORCEMENT AGAINST THE PURCHASER,
OF THIS AGREEMENT AND EACH OF THE OTHER TRANSACTION AGREEMENTS TO WHICH IT IS A
PARTY OR THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED THEREBY, EXCEPT FOR
THE FAILURE OF WHICH TO BE OBTAINED WOULD NOT HAVE A MATERIAL ADVERSE EFFECT ON
THE ABILITY OF THE PURCHASER TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THE
TRANSACTION AGREEMENTS.
4.4
BINDING EFFECT.
THIS AGREEMENT HAS BEEN
DULY EXECUTED AND DELIVERED BY THE PURCHASER AND CONSTITUTES THE LEGAL, VALID
AND BINDING OBLIGATION OF THE PURCHASER, ENFORCEABLE AGAINST IT IN ACCORDANCE
WITH ITS TERMS, SUBJECT TO APPLICABLE BANKRUPTCY, INSOLVENCY, REORGANIZATION,
MORATORIUM, FRAUDULENT TRANSFER OR SIMILAR LAWS AFFECTING CREDITORS' RIGHTS
GENERALLY AND THE GENERAL PRINCIPLES OF EQUITY, REGARDLESS OF WHETHER CONSIDERED
IN A PROCEEDING IN EQUITY OR AT LAW.
4.5
PURCHASE FOR OWN ACCOUNT, ETC.
(A)
PURCHASE FOR OWN ACCOUNT.
THE NOTE IS BEING ACQUIRED BY THE PURCHASER FOR ITS
OWN ACCOUNT AND WITH NO CURRENT INTENTION OF DISTRIBUTING OR RESELLING THE NOTE
OR ANY PART THEREOF IN ANY TRANSACTION THAT WOULD BE IN VIOLATION OF THE
SECURITIES LAWS OF THE UNITED STATES OF AMERICA OR ANY STATE, WITHOUT PREJUDICE,
HOWEVER, TO THE RIGHTS OF THE PURCHASER AT ALL TIMES TO SELL OR OTHERWISE
DISPOSE OF ALL OR ANY PART OF THE CONVERSION SHARES UNDER AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR UNDER AN EXEMPTION FROM SAID
REGISTRATION AVAILABLE UNDER THE SECURITIES ACT.
*CONFIDENTIAL TREATMENT REQUESTED
30
(B)
PURCHASER STATUS.
THE PURCHASER IS AN
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)) UNDER THE SECURITIES ACT.
(C)
RESTRICTED SHARES.
THE PURCHASER
UNDERSTANDS (I) CONVERSION SHARES WILL NOT (OTHER THAN PURSUANT TO THE
REGISTRATION RIGHTS AGREEMENT) BE REGISTERED UNDER THE SECURITIES ACT OR ANY
STATE SECURITIES LAWS, BY REASON OF THEIR ISSUANCE BY THE COMPANY IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS THEREOF AND (II) THE
CONVERSION SHARES MAY NOT BE SOLD UNLESS SUCH DISPOSITION IS REGISTERED UNDER
THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS OR IS EXEMPT FROM
REGISTRATION THEREUNDER.
4.6
NO BROKERS OR FINDERS.
EXCEPT AS
CONTEMPLATED BY THIS AGREEMENT, NO AGENT, BROKER, FINDER, OR INVESTMENT OR
COMMERCIAL BANKER OR OTHER PERSON (IF ANY) ENGAGED BY OR ACTING ON BEHALF OF THE
PURCHASER OR ANY OF ITS AFFILIATES IS OR WILL BE ENTITLED TO ANY BROKERAGE OR
FINDER'S OR SIMILAR FEE OR OTHER COMMISSION AS A RESULT OF THIS AGREEMENT, THE
TRANSACTION AGREEMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY.
4.7
LITIGATION.
THERE IS NO ACTION PENDING OR,
TO THE KNOWLEDGE OF THE PURCHASER, THREATENED AGAINST OR AFFECTING THE PURCHASER
OR RELATING TO ANY OF THE TRANSACTION AGREEMENTS OR THE TRANSACTIONS
CONTEMPLATED THEREBY