BASED ON THE
ADVICE OF ITS COUNSEL, DETERMINES THAT IT MUST SUSPEND THE USE OF THE PROSPECTUS
FORMING A PART OF THE REGISTRATION STATEMENT UNTIL SUCH TIME AS AN AMENDMENT TO
THE REGISTRATION STATEMENT HAS BEEN FILED BY THE COMPANY AND DECLARED EFFECTIVE
BY THE SEC OR UNTIL THE COMPANY HAS AMENDED OR SUPPLEMENTED SUCH PROSPECTUS.
4.4
POWER AND AUTHORITY.
THE INVESTOR FURTHER
REPRESENTS AND WARRANTS TO, AND COVENANTS WITH, THE COMPANY THAT (I) THE
INVESTOR HAS FULL RIGHT, POWER, AUTHORITY AND CAPACITY TO ENTER INTO THIS
AGREEMENT AND TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED HEREBY AND HAS TAKEN
ALL NECESSARY ACTION TO AUTHORIZE THE EXECUTION, DELIVERY AND PERFORMANCE OF
THIS AGREEMENT, AND (II) THIS AGREEMENT CONSTITUTES A VALID AND BINDING
OBLIGATION OF THE INVESTOR ENFORCEABLE AGAINST THE INVESTOR IN ACCORDANCE WITH
ITS TERMS, EXCEPT AS ENFORCEABILITY MAY BE LIMITED BY APPLICABLE BANKRUPTCY,
INSOLVENCY, REORGANIZATION, MORATORIUM OR SIMILAR LAWS AFFECTING CREDITORS' AND
CONTRACTING PARTIES' RIGHTS GENERALLY AND EXCEPT AS ENFORCEABILITY MAY BE
D-7
SUBJECT TO GENERAL PRINCIPLES OF EQUITY (REGARDLESS OF WHETHER SUCH
ENFORCEABILITY IS CONSIDERED IN A PROCEEDING IN EQUITY OR AT LAW) AND EXCEPT AS
THE INDEMNIFICATION AGREEMENTS OF THE INVESTORS HEREIN MAY BE LEGALLY
UNENFORCEABLE.
4.5
NO TAX OR LEGAL ADVICE.
THE INVESTOR
UNDERSTANDS THAT NOTHING IN THIS AGREEMENT, OR ANY OTHER MATERIALS PRESENTED TO
THE INVESTOR IN CONNECTION WITH THE PURCHASE AND SALE OF THE SHARES BY THE
COMPANY, ITS OFFICERS, DIRECTORS, AGENTS, ATTORNEYS OR ADVISORS, CONSTITUTES
LEGAL, TAX OR INVESTMENT ADVICE.
THE INVESTOR HAS CONSULTED SUCH LEGAL, TAX AND
INVESTMENT ADVISORS AS IT, IN ITS SOLE DISCRETION, HAS DEEMED NECESSARY OR
APPROPRIATE IN CONNECTION WITH ITS PURCHASE OF SHARES.
4.6
INVESTMENT EXPERIENCE.
THE INVESTOR
UNDERSTANDS THAT THE PURCHASE OF THE SHARES INVOLVES SUBSTANTIAL RISK.
THE
INVESTOR HAS EXPERIENCE AS AN INVESTOR IN SECURITIES OF COMPANIES AND
ACKNOWLEDGES THAT IT IS ABLE TO FEND FOR ITSELF, CAN BEAR THE ECONOMIC RISK OF
ITS INVESTMENT IN THE SHARES AND HAS SUCH KNOWLEDGE AND EXPERIENCE IN FINANCIAL
OR BUSINESS MATTERS THAT IT IS CAPABLE OF EVALUATING THE MERITS AND RISKS OF
THIS INVESTMENT IN THE SHARES AND PROTECTING ITS OWN INTERESTS IN CONNECTION
WITH THIS INVESTMENT.
4.7
RECEIPT OF INFORMATION.
THE INVESTOR HAS HAD
AN OPPORTUNITY TO ASK QUESTIONS AND RECEIVE ANSWERS FROM THE COMPANY REGARDING
THE TERMS AND CONDITIONS OF THE ISSUANCE AND SALE OF THE SHARES AND THE
BUSINESS, PROPERTIES, PROSPECTS AND FINANCIAL CONDITION OF THE COMPANY AND TO
OBTAIN ANY ADDITIONAL INFORMATION REQUESTED AND HAS RECEIVED AND CONSIDERED ALL
INFORMATION IT DEEMS RELEVANT TO MAKE AN INFORMED DECISION TO PURCHASE THE
SHARES.
4.8
HSR COMPLIANCE.
(I)
THE INVESTOR IS ITS OWN "ULTIMATE PARENT
ENTITY" AS DEFINED IN THE HART - SCOTT - RODINO ANTITRUST IMPROVEMENTS ACT OF 1976,
AS AMENDED (THE "HSR ACT").
(II)
THE INVESTOR WILL HOLD LESS THAN $50,000,000
IN VOTING SECURITIES OF THE COMPANY FOLLOWING EXECUTION OF THIS AGREEMENT, AS
VALUED UNDER THE HSR ACT.
4.9
FORMS 13D OR 13G.
THE INVESTOR WILL TIMELY
FILE WITH THE SEC AND AMEND ANY REPORTS REGARDING ITS OWNERSHIP OF