ITSELF ONLY AND FOR NO OTHER INVESTOR, REPRESENTS AND WARRANTS TO THE COMPANY
AS FOLLOWS, AS OF THE DATE HEREOF AND AS OF THE CLOSING:
(A)
ORGANIZATION; AUTHORITY.
SUCH INVESTOR IS AN ENTITY DULY ORGANIZED,
VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE JURISDICTION OF ITS
ORGANIZATION WITH THE REQUISITE CORPORATE, PARTNERSHIP OR OTHER POWER AND
AUTHORITY TO ENTER INTO AND TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THE
TRANSACTION DOCUMENTS AND OTHERWISE TO CARRY OUT ITS OBLIGATIONS HEREUNDER AND
THEREUNDER.
THE PURCHASE BY SUCH INVESTOR OF THE SECURITIES HEREUNDER HAS BEEN
DULY AUTHORIZED BY ALL NECESSARY CORPORATE, PARTNERSHIP OR OTHER ACTION ON THE
PART OF SUCH INVESTOR.
THIS AGREEMENT HAS BEEN DULY EXECUTED AND DELIVERED BY
SUCH INVESTOR AND CONSTITUTES THE VALID AND BINDING OBLIGATION OF SUCH INVESTOR,
ENFORCEABLE AGAINST IT IN ACCORDANCE WITH ITS TERMS, EXCEPT AS MAY BE LIMITED BY
(I) APPLICABLE BANKRUPTCY, INSOLVENCY, REORGANIZATION OR OTHER LAWS OF GENERAL
APPLICATION RELATING TO OR AFFECTING THE ENFORCEMENT OF CREDITORS RIGHTS
GENERALLY, AND (II) THE EFFECT OF RULES OF LAW GOVERNING THE AVAILABILITY OF
SPECIFIC PERFORMANCE AND OTHER EQUITABLE REMEDIES.
(B)
NO PUBLIC SALE OR DISTRIBUTION.
SUCH INVESTOR IS ACQUIRING THE COMMON
SHARES IN THE ORDINARY COURSE OF BUSINESS FOR ITS OWN ACCOUNT AND NOT WITH A
VIEW TOWARDS, OR FOR RESALE IN CONNECTION WITH, THE PUBLIC SALE OR DISTRIBUTION
THEREOF, EXCEPT PURSUANT TO SALES REGISTERED UNDER THE SECURITIES ACT OR UNDER
AN EXEMPTION FROM SUCH REGISTRATION AND IN COMPLIANCE WITH APPLICABLE FEDERAL
AND STATE SECURITIES LAWS, AND SUCH INVESTOR DOES NOT HAVE A PRESENT ARRANGEMENT
TO EFFECT ANY DISTRIBUTION OF THE SECURITIES TO OR THROUGH ANY PERSON OR ENTITY;
PROVIDED, HOWEVER, THAT BY MAKING THE REPRESENTATIONS HEREIN, SUCH INVESTOR DOES
NOT AGREE TO HOLD ANY OF THE SECURITIES FOR ANY MINIMUM OR OTHER SPECIFIC TERM
AND RESERVES THE RIGHT TO DISPOSE OF THE SECURITIES AT ANY TIME IN ACCORDANCE
WITH OR PURSUANT TO A REGISTRATION STATEMENT OR AN EXEMPTION UNDER THE
SECURITIES ACT.
(C)
INVESTOR STATUS.
AT THE TIME SUCH INVESTOR WAS OFFERED THE SECURITIES, IT
WAS, AND AT THE DATE HEREOF IT IS, AN "ACCREDITED INVESTOR" AS DEFINED IN RULE
501(A) UNDER THE SECURITIES ACT OR A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED
IN RULE 144A(A) UNDER THE SECURITIES ACT.
SUCH INVESTOR IS NOT A REGISTERED
BROKER DEALER REGISTERED UNDER SECTION 15(A) OF THE EXCHANGE ACT, OR A MEMBER OF
THE NASD, INC. OR AN ENTITY ENGAGED IN THE BUSINESS OF BEING A BROKER DEALER.
EXCEPT AS OTHERWISE DISCLOSED IN WRITING TO THE COMPANY ON EXHIBIT B-2 (ATTACHED
HERETO) ON OR PRIOR TO THE DATE OF THIS AGREEMENT, SUCH INVESTOR IS NOT
AFFILIATED WITH ANY BROKER DEALER REGISTERED UNDER SECTION 15(A) OF THE EXCHANGE
ACT, OR A MEMBER OF THE NASD, INC. OR AN ENTITY ENGAGED IN THE BUSINESS OF BEING
A BROKER DEALER.
17
(D)
EXPERIENCE OF SUCH INVESTOR.
SUCH INVESTOR, EITHER ALONE OR TOGETHER WITH
ITS REPRESENTATIVES HAS SUCH KNOWLEDGE, SOPHISTICATION AND EXPERIENCE IN
BUSINESS AND FINANCIAL MATTERS SO AS TO BE