WHETHER SUCH SALES ARE EFFECTUATED IN A
PUBLIC OR NON-PUBLIC TRANSACTION.
37.
REPRESENTATIONS AND WARRANTIES OF LAURUS.
LAURUS HEREBY REPRESENTS AND
WARRANTS TO THE COMPANY AS FOLLOWS:
(A)
REQUISITE POWER AND AUTHORITY.
LAURUS HAS ALL NECESSARY POWER AND
AUTHORITY UNDER ALL APPLICABLE PROVISIONS OF LAW TO EXECUTE AND DELIVER THIS
AGREEMENT AND THE ANCILLARY AGREEMENTS AND TO CARRY OUT THEIR PROVISIONS.
ALL
CORPORATE ACTION ON LAURUS' PART REQUIRED FOR THE LAWFUL EXECUTION AND DELIVERY
OF THIS AGREEMENT AND THE ANCILLARY AGREEMENTS HAVE BEEN OR WILL BE EFFECTIVELY
TAKEN PRIOR TO THE CLOSING DATE.
UPON THEIR EXECUTION AND DELIVERY, THIS
AGREEMENT AND THE ANCILLARY AGREEMENTS WILL BE VALID AND BINDING OBLIGATIONS OF
LAURUS, ENFORCEABLE IN ACCORDANCE WITH THEIR TERMS, EXCEPT (A) AS LIMITED BY
APPLICABLE BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM OR OTHER LAWS OF
GENERAL APPLICATION AFFECTING
27
enforcement of creditors' rights, and (b) as limited by general principles of
equity that restrict the availability of equitable and legal remedies.
(B)
INVESTMENT REPRESENTATIONS.
LAURUS UNDERSTANDS THAT THE SECURITIES ARE
BEING OFFERED AND SOLD PURSUANT TO AN EXEMPTION FROM REGISTRATION CONTAINED IN
THE SECURITIES ACT BASED IN PART UPON LAURUS' REPRESENTATIONS CONTAINED IN THIS
AGREEMENT, INCLUDING, WITHOUT LIMITATION, THAT LAURUS IS AN "ACCREDITED
INVESTOR" WITHIN THE MEANING OF REGULATION D UNDER THE SECURITIES ACT.
LAURUS
HAS RECEIVED OR HAS HAD FULL ACCESS TO ALL THE INFORMATION IT CONSIDERS
NECESSARY OR APPROPRIATE TO MAKE AN INFORMED INVESTMENT DECISION WITH RESPECT TO
THE NOTE AND THE WARRANT TO BE PURCHASED BY IT UNDER THIS AGREEMENT AND THE
SECURITIES ACQUIRED BY IT UPON THE CONVERSION OF THE NOTE AND THE EXERCISE OF
THE WARRANT, RESPECTIVELY.
(C)
LAURUS BEARS ECONOMIC RISK.
LAURUS HAS SUBSTANTIAL EXPERIENCE IN
EVALUATING AND INVESTING IN PRIVATE PLACEMENT TRANSACTIONS OF SECURITIES IN
COMPANIES SIMILAR TO THE COMPANY SO THAT IT IS CAPABLE OF EVALUATING THE MERITS
AND RISKS OF ITS INVESTMENT IN THE COMPANY AND HAS THE CAPACITY TO PROTECT ITS
OWN INTERESTS.
LAURUS MUST BEAR THE ECONOMIC RISK OF THIS INVESTMENT UNTIL THE
SECURITIES ARE SOLD PURSUANT TO (I) AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT, OR (II) IF AN EXEMPTION FROM REGISTRATION IS AVAILABLE.
(D)
ACQUISITION FOR OWN ACCOUNT.
LAURUS IS ACQUIRING THE SECURITIES FOR ITS
OWN ACCOUNT FOR INVESTMENT ONLY, AND NOT AS A NOMINEE OR AGENT AND NOT WITH A
VIEW TOWARDS OR FOR RESALE IN CONNECTION WITH THEIR DISTRIBUTION.
(E)
LAURUS CAN PROTECT ITS INTEREST.
LAURUS REPRESENTS THAT BY REASON OF
ITS, OR OF ITS MANAGEMENT'S, BUSINESS AND FINANCIAL EXPERIENCE, LAURUS HAS THE
CAPACITY TO EVALUATE THE MERITS AND RISKS OF ITS INVESTMENT IN THE NOTE, THE
WARRANT AND THE SECURITIES AND TO PROTECT ITS OWN INTERESTS IN CONNECTION WITH
THE TRANSACTIONS CONTEMPLATED IN THIS AGREEMENT, AND THE ANCILLARY AGREEMENTS.
FURTHER, LAURUS IS AWARE OF NO PUBLICATION OF ANY ADVERTISEMENT IN CONNECTION
WITH THE TRANSACTIONS CONTEMPLATED IN THE AGREEMENT OR THE ANCILLARY AGREEMENTS.
38.
ACCREDITED INVESTOR.
LAURUS REPRESENTS THAT IT IS AN ACCREDITED INVESTOR
WITHIN THE MEANING OF REGULATION D UNDER THE SECURITIES ACT.
28