CLOSING DATE AGAINST DELIVERY OF THE PURCHASE PRICE
AS DESCRIBED ABOVE.
1.3
CLOSING DATE.
SUBJECT TO THE SATISFACTION OR WAIVER OF THE
CONDITIONS SET FORTH IN ARTICLES VI AND VII HEREOF, THE CLOSING WILL TAKE PLACE
AT 8 A.M. PACIFIC STANDARD TIME ON OCTOBER 17, 2005, OR AT SUCH OTHER DATE OR
TIME AGREED UPON BY THE PARTIES TO THIS AGREEMENT (THE "CLOSING DATE").
THE
CLOSING WILL BE HELD AT THE OFFICES OF STRADLING YOCCA CARLSON & RAUTH OR AT
SUCH OTHER PLACE AS THE PARTIES AGREE.
ARTICLE II
INVESTOR'S REPRESENTATIONS AND WARRANTIES
Investor represents and warrants to the Company that:
2.1
INVESTMENT PURPOSE.
INVESTOR IS PURCHASING SECURITIES FOR ITS OWN
ACCOUNT AND NOT WITH A PRESENT VIEW TOWARD THE PUBLIC SALE OR DISTRIBUTION
THEREOF, EXCEPT PURSUANT TO SALES REGISTERED OR EXEMPTED FROM REGISTRATION UNDER
THE SECURITIES ACT, PROVIDED, HOWEVER, THAT BY MAKING THE REPRESENTATION HEREIN,
THE 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
FROM REGISTRATION UNDER THE SECURITIES ACT, SUBJECT TO THE RESTRICTIONS ON
TRANSFER SET FORTH IN THE REGISTRATION RIGHTS AGREEMENT.
2.2
ACCREDITED INVESTOR.
INVESTOR IS AN "ACCREDITED INVESTOR" AS SUCH
TERM IS DEFINED IN REGULATION D PROMULGATED UNDER THE SECURITIES ACT.
2.3
RELIANCE ON EXEMPTIONS.
INVESTOR UNDERSTANDS THAT THE SECURITIES
ARE BEING OFFERED AND SOLD TO IT IN RELIANCE UPON SPECIFIC EXEMPTIONS FROM THE
REGISTRATION REQUIREMENTS OF UNITED STATES FEDERAL AND STATE SECURITIES LAWS AND
THAT THE COMPANY IS RELYING UPON THE TRUTH AND ACCURACY OF, AND INVESTOR'S
COMPLIANCE WITH, THE REPRESENTATIONS, WARRANTIES, AGREEMENTS, ACKNOWLEDGMENTS
AND UNDERSTANDINGS OF INVESTOR SET FORTH HEREIN IN ORDER TO DETERMINE THE
AVAILABILITY OF SUCH EXEMPTIONS AND THE ELIGIBILITY OF INVESTOR TO ACQUIRE THE
SECURITIES.
2.4
INFORMATION.
INVESTOR HAS RECEIVED AND READ THE SEC DOCUMENTS.
INVESTOR AND ITS ADVISORS, IF ANY, HAVE BEEN FURNISHED WITH ALL MATERIALS
RELATING TO THE BUSINESS, FINANCES AND OPERATIONS OF THE COMPANY, AND MATERIALS
RELATING TO THE OFFER AND SALE OF THE SECURITIES, THAT HAVE BEEN REQUESTED BY
INVESTOR OR ITS ADVISORS, IF ANY.
INVESTOR AND ITS ADVISORS, IF ANY, HAVE BEEN
AFFORDED THE OPPORTUNITY TO ASK QUESTIONS OF THE COMPANY.
NEITHER SUCH
INQUIRIES NOR ANY OTHER DUE DILIGENCE INVESTIGATION CONDUCTED BY INVESTOR OR ANY
OF ITS ADVISORS OR REPRESENTATIVES MODIFY, AMEND OR AFFECT INVESTOR'S RIGHT TO
RELY ON THE COMPANY'S REPRESENTATIONS AND WARRANTIES CONTAINED IN ARTICLE III
BELOW.
INVESTOR ACKNOWLEDGES AND UNDERSTANDS THAT ITS INVESTMENT IN THE
SECURITIES INVOLVES A SIGNIFICANT DEGREE OF RISK, INCLUDING THE RISKS REFLECTED
IN THE SEC DOCUMENTS.
2.5
GOVERNMENTAL REVIEW.
INVESTOR UNDERSTANDS THAT NO UNITED STATES
FEDERAL OR STATE AGENCY OR ANY OTHER GOVERNMENT OR GOVERNMENTAL AGENCY HAS
PASSED UPON OR MADE ANY RECOMMENDATION OR ENDORSEMENT OF THE SECURITIES OR AN
INVESTMENT THEREIN.
2
2.6
TRANSFER OR RESALE.
INVESTOR UNDERSTANDS THAT:
(A)
EXCEPT AS PROVIDED IN THE REGISTRATION RIGHTS AGREEMENT, THE
SECURITIES HAVE NOT BEEN AND