GOVERNMENTAL AGENCIES OR ORGANIZATIONS)
THEN APPEARING ON THE LIST OF SPECIALLY DESIGNATED NATIONAL AND BLOCKED PERSONS
MAINTAINED BY THE U.S. OFFICE OF FOREIGN ASSETS CONTROL ("OFAC") OR ENTITIES OR
INDIVIDUALS, TRANSFER OF SUCH RIGHTS TO WHOM MIGHT REASONABLY BE EXPECTED TO
HAVE AN ADVERSE EFFECT ON THE ABILITY OF THE COMPANY TO BID FOR AND RECEIVE
GRANTS OR CONTRACTS FROM THE UNITED STATES GOVERNMENT, AND (III) ENTITIES OR
ORGANIZATIONS THEN CONTROLLED BY SUCH INDIVIDUALS OR HAVING THEIR REGISTERED
OFFICE, HEADQUARTERS OR PRIMARY PLACE OF BUSINESS LOCATED IN A NATION THAT IS
THEN SUBJECT TO AN OFAC SANCTIONS PROGRAM; PROVIDED THAT NON-NEGOTIATED BONA
FIDE SALES OF SHARES ON THE TRADING MARKET ("NON-NEGOTIATED BONA FIDE
19
SALES"), WHICH, FOR THE SAKE OF CLARITY, SHALL NOT INCLUDE NEGOTIATED BLOCK
SALES, ARE EXCLUDED FROM THIS TRANSFER RESTRICTION.
IN THE EVENT OF ANY
TRANSFER (OTHER THAN NON-NEGOTIATED BONA FIDE SALES), THE TRANSFEREE SHALL AGREE
TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS IMPOSED ON THE INVESTOR IN THIS
AGREEMENT, THE INVESTOR RIGHTS AGREEMENT AND UNDER THE WARRANT.
5.3.
PRIOR OWNERSHIP OF SECURITIES.
TO THE
KNOWLEDGE OF THE INVESTOR AFTER DUE INQUIRY, NONE OF THE INVESTOR, ITS
DIRECTORS, ITS EXECUTIVE OFFICERS AND ITS AFFILIATES CURRENTLY OWN ANY
SECURITIES OF THE COMPANY OR ANY OF ITS AFFILIATES, NOR DID ANY OF THE INVESTOR,
ITS DIRECTORS, ITS EXECUTIVE OFFICERS AND ITS AFFILIATES OWN SECURITIES OF THE
COMPANY PRIOR TO JULY 28, 2008, THE DATE ON WHICH PBL AND THE COMPANY ENTERED
INTO THAT CERTAIN LETTER OF INTENT (THE "LETTER OF INTENT").
5.4.
PRIVATE PLACEMENT.
(A)
THE INVESTOR IS ACQUIRING THE SHARES AND
WARRANT FOR ITS OWN ACCOUNT, FOR INVESTMENT AND NOT WITH A VIEW TO THE RESALE OR
DISTRIBUTION THEREOF WITHIN THE MEANING OF THE SECURITIES ACT.
(B)
THE INVESTOR IS AN "ACCREDITED INVESTORS" AS
SUCH TERM IS DEFINED IN RULE 501(A) PROMULGATED UNDER THE SECURITIES ACT.
(C)
THE INVESTOR AGREES THAT THE COMPANY MAY
PLACE A LEGEND ON THE CERTIFICATES REPRESENTING THE SECURITIES STATING THAT THE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT AND, THEREFORE,
CANNOT BE OFFERED, SOLD OR TRANSFERRED UNLESS REGISTERED UNDER THE SECURITIES
ACT OR AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE IN THE OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY.
(D)
THE INVESTOR HAS SUCH KNOWLEDGE AND EXPERIENCE
IN BUSINESS AND FINANCIAL MATTERS AND WITH RESPECT TO INVESTMENTS IN RESTRICTED
SECURITIES SO AS TO ENABLE IT TO UNDERSTAND AND EVALUATE THE RISKS OF ITS
INVESTMENT IN THE SECURITIES AND FORM AN INVESTMENT DECISION WITH RESPECT
THERETO. THE INVESTOR IS ABLE TO BEAR THE RISKS OF AN INVESTMENT IN THE
SECURITIES.
THE INVESTOR HAS BEEN AFFORDED THE OPPORTUNITY, DURING THE COURSE
OF NEGOTIATING THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, TO ASK QUESTIONS
OF, AND TO SECURE SUCH INFORMATION FROM, THE COMPANY AND ITS OFFICERS AND
DIRECTORS AS THEY HAVE DEEMED NECESSARY TO EVALUATE THE MERITS OF ENTERING INTO
SUCH TRANSACTIONS.
(E)
ON THE CLOSING DATE, THE INVESTOR SHALL HAVE
AN ADEQUATE NET WORTH AND MEANS OF PROVIDING FOR THEIR