ACT AND IN COMPLIANCE WITH APPLICABLE STATE SECURITIES
LAWS.
(C)
AVISTA FURTHER UNDERSTANDS THAT THE EXEMPTION FROM REGISTRATION
AFFORDED BY RULE 144 (THE PROVISIONS OF WHICH ARE KNOWN TO AVISTA) PROMULGATED
UNDER THE SECURITIES ACT DEPENDS ON THE SATISFACTION OF VARIOUS CONDITIONS, AND
THAT, IF APPLICABLE, RULE 144 MAY AFFORD THE BASIS FOR SALES ONLY IN LIMITED
AMOUNTS.
(D)
AVISTA DID NOT EMPLOY ANY BROKER OR FINDER IN CONNECTION WITH THE
TRANSACTIONS CONTEMPLATED IN THIS AGREEMENT AND NO FEES OR COMMISSIONS ARE
PAYABLE TO AVISTA EXCEPT AS OTHERWISE PROVIDED FOR IN THIS AGREEMENT.
(E)
AVISTA IS AN ACCREDITED INVESTOR (AS DEFINED UNDER THE
RULES PROMULGATED UNDER THE SECURITIES ACT).
(F)
AVISTA HAS BEEN FURNISHED WITH OR HAS HAD ACCESS TO THE
INFORMATION IT HAS REQUESTED FROM THE CORPORATION AND ITS SUBSIDIARIES AND HAS
HAD AN OPPORTUNITY TO DISCUSS WITH THE MANAGEMENT OF THE CORPORATION AND ITS
SUBSIDIARIES THE BUSINESS AND FINANCIAL AFFAIRS OF THE CORPORATION AND ITS
SUBSIDIARIES, AND HAS GENERALLY SUCH KNOWLEDGE AND EXPERIENCE IN BUSINESS AND
FINANCIAL MATTERS AND WITH RESPECT TO INVESTMENTS IN SECURITIES OF PRIVATELY
HELD COMPANIES SO AS TO ENABLE IT TO UNDERSTAND AND EVALUATE THE RISKS OF SUCH
INVESTMENT AND FORM OF INVESTMENT DECISION WITH RESPECT THERETO, AND IS CAPABLE
OF BEARING THE ECONOMIC RISKS OF SUCH INVESTMENT.
8.
AVISTA AND LEVANT, SEVERALLY AND NOT JOINTLY, EACH REPRESENTS AND
WARRANTS AS FOLLOWS:
THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT
TO WHICH SUCH HOLDER IS A PARTY WITHIN ITS CORPORATE OR LIMITED PARTNERSHIP, AS
THE CASE MAY BE, POWER AND AUTHORITY AND HAVE BEEN DULY AUTHORIZED BY ALL
NECESSARY ACTION OF SUCH HOLDER, DO NOT CONFLICT WITH OR RESULT IN A BREACH OF
OR VIOLATE ANY SUCH HOLDER'S GOVERNING DOCUMENTS OR ANY CONTRACT TO WHICH SUCH
HOLDER IS A PARTY OR BY WHICH ITS ASSETS ARE BOUND OR ANY APPLICABLE LAWS AND
CONSTITUTE LEGAL, VALID AND BINDING AGREEMENTS OF SUCH HOLDER ENFORCEABLE
AGAINST IT IN ACCORDANCE WITH THEIR RESPECTIVE TERMS.
6
9.
AT SUCH TIME AS THE AVISTA PURCHASERS DO NOT HOLD OF RECORD A
SUFFICIENT NUMBER OF SHARES OF SERIES B PREFERRED STOCK (WITHOUT THE VOTE OF ANY
OTHER STOCKHOLDER) TO ELECT A DIRECTOR TO THE BOARD OF DIRECTORS OF THE COMPANY
TO REPRESENT THE HOLDERS OF SERIES B PREFERRED STOCK AS A SEPARATE CLASS
PURSUANT TO THE TERMS OF THE CERTIFICATE OF DESIGNATION, THE BOARD OF DIRECTORS
SHALL NOMINATE AND SLATE FOR ELECTION AT EACH OF THE COMPANY'S ANNUAL MEETINGS
OF STOCKHOLDERS ONE DIRECTOR DESIGNATED BY AVISTA IF AVISTA HOLDS A NUMBER OF
SHARES OF COMMON STOCK AND/OR SERIES B PREFERRED STOCK (CALCULATED ASSUMING THE
CONVERSION OF ANY SERIES B PREFERRED STOCK HELD BY THE AVISTA PURCHASERS INTO
COMMON STOCK) EQUAL TO OR GREATER THAN (I) 10% OF THE THEN OUTSTANDING COMMON
STOCK OR (II) 25% OF THE COMMON STOCK THE AVISTA PURCHASERS ARE ENTITLED TO UPON
CONVERSION OF THE SERIES B PREFERRED STOCK PURCHASED BY THE AVISTA PURCHASERS.
10.
NO LATER THAN (90) DAYS FOLLOWING THE CLOSING, THE COMPANY AND