UNDER ERISA OR THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
(5)
SUCH PURCHASER IS ACQUIRING THE SHARES AND WARRANTS FOR ITS OWN ACCOUNT,
AND NOT WITH A VIEW TOWARD, OR FOR SALE IN CONNECTION WITH, ANY DISTRIBUTION
THEREOF IN VIOLATION OF ANY FEDERAL OR STATE SECURITIES OR "BLUE SKY" LAW, OR
WITH ANY PRESENT INTENTION OF DISTRIBUTING OR SELLING SUCH SHARES OR WARRANTS IN
VIOLATION OF THE SECURITIES ACT.
(6)
SUCH PURCHASER UNDERSTANDS THAT (I) THE SHARES AND WARRANTS ARE BEING
OFFERED AND SOLD WITHOUT REGISTRATION UNDER THE SECURITIES ACT IN A TRANSACTION
THAT IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THAT ACT, (II) SUCH
EXEMPTION DEPENDS, IN PART, ON THE ACCURACY AND TRUTHFULNESS OF THE FOREGOING
REPRESENTATIONS OF SUCH PURCHASER AND (III) THE COMPANY WILL RELY UPON THE TRUTH
AND ACCURACY OF THE FOREGOING REPRESENTATIONS, ACKNOWLEDGEMENTS AND AGREEMENTS
AND AGREES THAT IF ANY OF THE REPRESENTATIONS AND ACKNOWLEDGEMENTS DEEMED TO
HAVE BEEN MADE BY IT BY ITS PURCHASE OF THE SHARES AND WARRANTS IS NO LONGER
ACCURATE, IT SHALL PROMPTLY NOTIFY THE COMPANY. IF SUCH PURCHASER IS ACQUIRING
SHARES AND WARRANTS AS A FIDUCIARY OR AGENT FOR ONE OR MORE INVESTOR ACCOUNTS,
SUCH PURCHASER REPRESENTS THAT IS HAS SOLE INVESTMENT DISCRETION WITH RESPECT TO
EACH SUCH ACCOUNT AND IT HAS FULL POWER TO MAKE THE FOREGOING REPRESENTATIONS,
ACKNOWLEDGEMENTS AND AGREEMENTS ON BEHALF OF SUCH ACCOUNT.
(7)
SUCH PURCHASER UNDERSTANDS THAT NOTHING IN THIS AGREEMENT, THE COMPANY SEC
REPORTS OR ANY OTHER MATERIALS PRESENTED TO SUCH PURCHASER IN CONNECTION WITH
THE PURCHASE AND SALE OF THE SHARES AND WARRANTS CONSTITUTES LEGAL, TAX OR
INVESTMENT ADVICE. SUCH PURCHASER HAS CONSULTED SUCH LEGAL, TAX AND INVESTMENT
ADVISORS AS IT, IN ITS SOLE DISCRETION, HAS DEEMED NECESSARY OR APPROPRIATE IN
CONNECTION WITH ITS PURCHASE OF THE SHARES AND WARRANTS AND HAS MADE ITS OWN
ASSESSMENT AND HAS SATISFIED ITSELF CONCERNING
10
THE RELEVANT TAX AND OTHER ECONOMIC CONSIDERATIONS RELEVANT TO ITS INVESTMENT IN
THE SHARES AND WARRANTS.
ARTICLE III
ADDITIONAL AGREEMENTS
3.1
Other Actions. (a)
Each Purchaser, on the one hand, and the Company, on
the other hand, will cooperate and consult with the other and use reasonable
best efforts to prepare and file all necessary documentation, to effect all
necessary applications, notices, petitions, filings and other documents, and to
obtain all necessary permits, consents, orders, approvals and authorizations of,
or any exemption by, all third parties and Governmental Entities, and the
expiration or termination of any applicable waiting periods, necessary or
advisable to consummate the transactions contemplated by this Agreement, and to
perform the covenants contemplated by this Agreement.
(B)
UNLESS THIS AGREEMENT HAS BEEN TERMINATED PURSUANT TO SECTION 4.1, THE
COMPANY SHALL CALL A SPECIAL MEETING OF ITS SHAREHOLDERS, PROMPTLY FOLLOWING THE
LATER OF (1) THE CLOSING AND (2) THE 2008 ANNUAL MEETING OF ITS SHAREHOLDERS, TO
VOTE ON PROPOSALS (COLLECTIVELY, THE "SHAREHOLDER PROPOSALS") TO (A) APPROVE THE
CONVERSION OF THE CONVERTIBLE PREFERRED STOCK INTO, AND THE EXERCISE OF THE
WARRANTS FOR, COMMON STOCK FOR PURPOSES OF SECTION 312.03