private investments, similar to
the purchase of the Securities hereunder.
6.4.
DISCLOSURE OF INFORMATION.
THE INVESTOR HAS HAD AN OPPORTUNITY TO
RECEIVE ALL ADDITIONAL INFORMATION RELATED TO THE COMPANY REQUESTED BY IT AND TO
ASK QUESTIONS OF AND RECEIVE ANSWERS FROM THE COMPANY REGARDING THE COMPANY, ITS
BUSINESS AND THE TERMS AND CONDITIONS OF THE OFFERING OF THE SECURITIES.
THE
INVESTOR ACKNOWLEDGES RECEIPT OF COPIES OF AND ITS SATISFACTORY REVIEW OF THE
SEC FILINGS.
NEITHER SUCH INQUIRIES NOR ANY OTHER DUE DILIGENCE INVESTIGATION
CONDUCTED BY THE INVESTOR SHALL MODIFY, AMEND OR AFFECT THE INVESTOR'S RIGHT TO
RELY ON THE COMPANY'S REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS
AGREEMENT.
6.5.
RESTRICTED SECURITIES.
THE INVESTOR UNDERSTANDS THAT THE
SECURITIES ARE CHARACTERIZED AS "RESTRICTED SECURITIES" UNDER THE U.S. FEDERAL
SECURITIES LAWS INASMUCH AS THEY ARE BEING ACQUIRED FROM THE COMPANY IN A
TRANSACTION NOT INVOLVING A PUBLIC OFFERING AND THAT
22
UNDER SUCH LAWS AND APPLICABLE REGULATIONS SUCH SECURITIES MAY BE RESOLD WITHOUT
REGISTRATION UNDER THE 1933 ACT ONLY IN CERTAIN LIMITED CIRCUMSTANCES.
6.6.
LEGENDS.
(A)
IT IS UNDERSTOOD THAT, EXCEPT AS PROVIDED BELOW, CERTIFICATES
EVIDENCING SUCH SECURITIES MAY BEAR THE FOLLOWING OR ANY SIMILAR LEGEND:
"THE SECURITIES REPRESENTED HEREBY MAY NOT BE TRANSFERRED UNLESS (I) SUCH
SECURITIES HAVE BEEN REGISTERED FOR SALE PURSUANT TO THE SECURITIES ACT OF 1933,
AS AMENDED, OR (II) THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL SATISFACTORY
TO IT THAT SUCH TRANSFER MAY LAWFULLY BE MADE WITHOUT REGISTRATION UNDER THE
SECURITIES ACT OF 1933 OR QUALIFICATION UNDER APPLICABLE STATE SECURITIES LAWS."
(B)
IF REQUIRED BY THE AUTHORITIES OF ANY STATE IN CONNECTION WITH THE
ISSUANCE OF SALE OF THE SECURITIES, THE LEGEND REQUIRED BY SUCH STATE AUTHORITY.
(C)
FROM AND AFTER THE EARLIER OF (I) THE REGISTRATION OF THE
PREFERRED SHARES AND THE WARRANT SHARES FOR RESALE PURSUANT TO THE REGISTRATION
RIGHTS AGREEMENT AND (II) THE TIME WHEN SUCH SECURITIES MAY BE TRANSFERRED
PURSUANT TO RULE 144(K) OF THE 1933 ACT, THE COMPANY SHALL, UPON AN INVESTOR'S
WRITTEN REQUEST, PROMPTLY CAUSE CERTIFICATES EVIDENCING SUCH SECURITIES TO BE
REPLACED WITH CERTIFICATES WHICH DO NOT BEAR SUCH RESTRICTIVE LEGENDS.
WHEN
THE COMPANY IS REQUIRED TO CAUSE UNLEGENDED CERTIFICATES TO REPLACE PREVIOUSLY
ISSUED LEGENDED CERTIFICATES, IF UNLEGENDED CERTIFICATES ARE NOT DELIVERED TO AN
INVESTOR WITHIN THREE (3) BUSINESS DAYS OF SUBMISSION BY THAT INVESTOR OF
LEGENDED CERTIFICATE(S) TO THE COMPANY'S TRANSFER AGENT TOGETHER WITH A
REPRESENTATION LETTER IN CUSTOMARY FORM, THE COMPANY SHALL BE LIABLE TO THE
INVESTOR FOR LIQUIDATED DAMAGES EQUAL TO 1.5% OF THE AGGREGATE PURCHASE PRICE OF
THE SECURITIES EVIDENCED BY SUCH CERTIFICATE(S) FOR EACH 10-DAY PERIOD (OR
PORTION THEREOF) BEYOND SUCH THREE (3) BUSINESS DAY-PERIOD THAT THE UNLEGENDED
CERTIFICATES HAVE NOT BEEN SO DELIVERED.
6.7.
ACCREDITED INVESTOR.
THE INVESTOR IS AN "ACCREDITED INVESTOR" AS
DEFINED IN RULE 501(A) OF REGULATION D, AS AMENDED, UNDER THE 1933 ACT.
6.8.
NO GENERAL SOLICITATION.
THE INVESTOR DID NOT LEARN OF THE
INVESTMENT IN THE SECURITIES AS A RESULT OF ANY "GENERAL ADVERTISING" OR
"GENERAL SOLICITATION" AS THOSE TERMS ARE