OFFERING OF THE SECURITIES TO BE INTEGRATED WITH OTHER OFFERINGS.
(I)
DILUTIVE EFFECT.
THE COMPANY UNDERSTANDS AND ACKNOWLEDGES THAT
THE NUMBER OF CONVERSION SHARES ISSUABLE UPON CONVERSION OF THE PREFERRED SHARES
AND THE WARRANT SHARES ISSUABLE UPON EXERCISE OF THE WARRANTS WILL INCREASE IN
CERTAIN CIRCUMSTANCES.
THE COMPANY FURTHER ACKNOWLEDGES THAT, SUBJECT TO THE
TERMS AND CONDITIONS OF THE TRANSACTION DOCUMENTS, ITS OBLIGATION TO ISSUE
CONVERSION SHARES UPON CONVERSION OF THE PREFERRED SHARES IN ACCORDANCE WITH
THIS AGREEMENT AND THE PREFERRED SHARES AND ITS OBLIGATION TO ISSUE THE WARRANT
SHARES UPON EXERCISE OF THE WARRANTS IN ACCORDANCE WITH THIS AGREEMENT AND THE
WARRANTS IS, IN EACH CASE, ABSOLUTE AND UNCONDITIONAL REGARDLESS OF THE DILUTIVE
EFFECT THAT SUCH ISSUANCE MAY HAVE ON THE OWNERSHIP INTERESTS OF OTHER
STOCKHOLDERS OF THE COMPANY.
(J)
APPLICATION OF TAKEOVER PROTECTIONS; RIGHTS AGREEMENT.
THE
COMPANY AND ITS BOARD OF DIRECTORS HAVE TAKEN ALL NECESSARY ACTION, IF ANY, IN
ORDER TO RENDER INAPPLICABLE ANY CONTROL SHARE ACQUISITION, BUSINESS
COMBINATION, POISON PILL (INCLUDING ANY DISTRIBUTION UNDER A RIGHTS AGREEMENT)
OR OTHER SIMILAR ANTI-TAKEOVER PROVISION UNDER THE CERTIFICATE OF INCORPORATION
(AS DEFINED IN SECTION 3(Q)) OR THE LAWS OF THE STATE OF ITS INCORPORATION WHICH
IS OR COULD BECOME APPLICABLE TO ANY BUYER AS A RESULT OF THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE COMPANY'S
ISSUANCE OF THE SECURITIES AND ANY BUYER'S OWNERSHIP OF THE SECURITIES.
THE
COMPANY HAS NOT ADOPTED A STOCKHOLDER RIGHTS PLAN OR SIMILAR ARRANGEMENT
RELATING TO ACCUMULATIONS OF BENEFICIAL OWNERSHIP OF COMMON STOCK OR A CHANGE IN
CONTROL OF THE COMPANY.
(K)
SEC DOCUMENTS; FINANCIAL STATEMENTS.
SINCE APRIL 4, 2000, THE
COMPANY HAS FILED ALL REPORTS, SCHEDULES, FORMS, STATEMENTS AND OTHER DOCUMENTS
REQUIRED TO BE FILED BY IT WITH THE SEC PURSUANT TO THE REPORTING REQUIREMENTS
OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED (THE "1934 ACT") (ALL OF THE
FOREGOING FILED PRIOR TO THE DATE OF THE CLOSING, AND ALL EXHIBITS INCLUDED
THEREIN AND FINANCIAL STATEMENTS AND SCHEDULES THERETO AND DOCUMENTS
INCORPORATED BY REFERENCE THEREIN BEING HEREINAFTER REFERRED TO AS THE "SEC
DOCUMENTS").
THE
8
COMPANY HAS DELIVERED TO THE BUYERS OR THEIR RESPECTIVE REPRESENTATIVES TRUE,
CORRECT AND COMPLETE COPIES OF THE SEC DOCUMENTS NOT AVAILABLE ON THE EDGAR
SYSTEM.
AS OF THEIR RESPECTIVE DATES, THE SEC DOCUMENTS COMPLIED IN ALL
MATERIAL RESPECTS WITH THE REQUIREMENTS OF THE 1934 ACT AND THE RULES AND
REGULATIONS OF THE SEC PROMULGATED THEREUNDER APPLICABLE TO THE SEC DOCUMENTS,
AND NONE OF THE SEC DOCUMENTS, AT THE TIME THEY WERE FILED WITH THE SEC,
CONTAINED ANY UNTRUE STATEMENT OF A MATERIAL FACT OR OMITTED TO STATE A MATERIAL
FACT REQUIRED TO BE STATED THEREIN OR NECESSARY IN ORDER TO MAKE THE STATEMENTS
THEREIN, IN THE LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT
MISLEADING.
AS OF THEIR RESPECTIVE DATES, THE FINANCIAL STATEMENTS OF THE
COMPANY INCLUDED IN THE SEC DOCUMENTS COMPLIED AS TO FORM IN ALL MATERIAL
RESPECTS WITH APPLICABLE ACCOUNTING REQUIREMENTS AND THE PUBLISHED RULES AND
REGULATIONS OF THE SEC