DOCUMENT OR INSTRUMENT CONTEMPLATED HEREBY AND
THEREBY, BY THE INVESTOR AND THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED
HEREBY AND THEREBY DO NOT (I) VIOLATE ANY PROVISION OF THE INVESTOR'S CHARTER
DOCUMENTS OR BYLAWS, (II) CONFLICT WITH, OR CONSTITUTE A DEFAULT (OR AN EVENT
WHICH WITH NOTICE OR LAPSE OF TIME OR BOTH WOULD BECOME A DEFAULT) UNDER, OR
GIVE TO OTHERS ANY RIGHTS OF TERMINATION, AMENDMENT, ACCELERATION OR
CANCELLATION OF, ANY MATERIAL AGREEMENT, MORTGAGE, DEED OF TRUST, INDENTURE,
NOTE, BOND, LICENSE, LEASE AGREEMENT, INSTRUMENT OR OBLIGATION TO WHICH THE
INVESTOR IS A PARTY, (III) CREATE OR IMPOSE A LIEN, CHARGE OR ENCUMBRANCE ON ANY
PROPERTY OF THE INVESTOR UNDER ANY AGREEMENT OR ANY COMMITMENT TO WHICH THE
INVESTOR IS A PARTY OR BY WHICH THE INVESTOR IS BOUND OR BY WHICH ANY OF ITS
RESPECTIVE PROPERTIES OR ASSETS ARE BOUND, (IV) RESULT IN A VIOLATION OF ANY
FEDERAL, STATE, LOCAL OR FOREIGN STATUTE, RULE, REGULATION, ORDER, WRIT,
JUDGMENT OR DECREE (INCLUDING FEDERAL AND STATE SECURITIES LAWS AND REGULATIONS)
APPLICABLE TO THE INVESTOR OR BY WHICH ANY PROPERTY OR ASSET OF THE INVESTOR ARE
BOUND OR AFFECTED, OR (V) REQUIRE THE CONSENT OF ANY THIRD-PARTY THAT HAS NOT
BEEN OBTAINED PURSUANT TO ANY MATERIAL CONTRACT TO WHICH INVESTOR IS SUBJECT OR
TO WHICH ANY OF ITS ASSETS, OPERATIONS OR MANAGEMENT MAY BE SUBJECT.
THE
INVESTOR IS NOT REQUIRED UNDER APPLICABLE FEDERAL, STATE, FOREIGN OR LOCAL LAW,
RULE OR REGULATION TO OBTAIN ANY CONSENT, AUTHORIZATION OR ORDER OF, OR MAKE ANY
FILING OR REGISTRATION WITH, ANY COURT OR
15
GOVERNMENTAL AGENCY IN ORDER FOR IT TO EXECUTE, DELIVER OR PERFORM ANY OF ITS
OBLIGATIONS UNDER THIS AGREEMENT, THE REGISTRATION RIGHTS AGREEMENT OR THE
WARRANT OR TO PURCHASE OR ACQUIRE THE SHARES, THE WARRANT, THE WARRANT SHARES OR
ANY BLACKOUT SHARES IN ACCORDANCE WITH THE TERMS HEREOF, PROVIDED THAT, FOR
PURPOSES OF THE REPRESENTATION MADE IN THIS SENTENCE, THE INVESTOR IS ASSUMING
AND RELYING UPON THE ACCURACY OF THE RELEVANT REPRESENTATIONS AND AGREEMENTS OF
THE COMPANY HEREIN.
SECTION 5.4
FINANCIAL CAPABILITY.
THE INVESTOR HAS THE FINANCIAL
CAPABILITY TO PERFORM ALL OF ITS OBLIGATIONS UNDER THIS AGREEMENT, THE
REGISTRATION RIGHTS AGREEMENT AND THE WARRANT, INCLUDING THE CAPABILITY TO
PURCHASE THE SHARES, THE WARRANT, THE WARRANT SHARES AND ANY BLACKOUT SHARES IN
ACCORDANCE WITH THE TERMS HEREOF AND THEREOF.
THE INVESTOR HAS SUCH KNOWLEDGE
AND EXPERIENCE IN BUSINESS AND FINANCIAL MATTERS THAT IT IS CAPABLE OF
EVALUATING THE MERITS AND RISKS OF AN INVESTMENT IN COMMON STOCK AND THE
WARRANT.
THE INVESTOR IS AN "ACCREDITED INVESTOR" AS DEFINED IN REGULATION D.
THE INVESTOR IS A "SOPHISTICATED INVESTOR" AS DESCRIBED IN RULE 506(B)(2)(II) OF
REGULATION D.
THE INVESTOR ACKNOWLEDGES THAT AN INVESTMENT IN THE COMMON STOCK
AND THE WARRANT IS SPECULATIVE AND INVOLVES A HIGH DEGREE OF RISK.
SECTION 5.5
INFORMATION.
THE INVESTOR AND ITS ADVISORS, IF ANY, HAVE
BEEN FURNISHED WITH ALL MATERIALS RELATING TO THE BUSINESS, FINANCES AND
OPERATIONS OF THE COMPANY AND MATERIALS RELATING TO THE OFFER AND SALE OF THE
SHARES,