HAVE BEEN OR
WILL BE EFFECTIVELY TAKEN PRIOR TO THE CLOSING. UPON THEIR EXECUTION AND
DELIVERY, THIS AGREEMENT AND THE RELATED AGREEMENTS WILL BE VALID AND BINDING
OBLIGATIONS OF THE PURCHASER, ENFORCEABLE IN ACCORDANCE WITH THEIR TERMS,
EXCEPT:
(A)
AS LIMITED BY APPLICABLE BANKRUPTCY, INSOLVENCY, REORGANIZATION,
MORATORIUM OR OTHER LAWS OF GENERAL APPLICATION AFFECTING ENFORCEMENT OF
CREDITORS' RIGHTS; AND
(B)
AS LIMITED BY GENERAL PRINCIPLES OF EQUITY THAT RESTRICT THE
AVAILABILITY OF EQUITABLE AND LEGAL REMEDIES.
5.3
INVESTMENT REPRESENTATIONS. THE PURCHASER UNDERSTANDS THAT THE
SECURITIES ARE BEING OFFERED AND SOLD PURSUANT TO AN EXEMPTION FROM REGISTRATION
CONTAINED IN THE SECURITIES ACT BASED IN PART UPON THE PURCHASER'S
REPRESENTATIONS CONTAINED IN THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THAT
THE PURCHASER IS AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF REGULATION D
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). THE
PURCHASER CONFIRMS THAT IT HAS RECEIVED OR HAS HAD FULL ACCESS TO ALL THE
INFORMATION IT CONSIDERS NECESSARY OR APPROPRIATE TO MAKE AN INFORMED INVESTMENT
DECISION WITH RESPECT TO THE NOTE AND THE WARRANT TO BE PURCHASED BY IT UNDER
THIS AGREEMENT AND THE WARRANT SHARES ACQUIRED BY IT UPON THE EXERCISE OF THE
WARRANT. THE PURCHASER FURTHER CONFIRMS THAT IT HAS HAD AN OPPORTUNITY TO ASK
QUESTIONS AND RECEIVE ANSWERS FROM THE COMPANY REGARDING THE COMPANY'S AND ITS
SUBSIDIARIES' BUSINESS, MANAGEMENT AND FINANCIAL AFFAIRS AND THE TERMS AND
CONDITIONS OF THE OFFERING, THE NOTE, THE WARRANT AND THE SECURITIES AND TO
OBTAIN ADDITIONAL INFORMATION (TO THE EXTENT THE COMPANY POSSESSED SUCH
INFORMATION OR COULD ACQUIRE IT WITHOUT UNREASONABLE EFFORT OR EXPENSE)
NECESSARY TO VERIFY ANY INFORMATION FURNISHED TO THE PURCHASER OR TO WHICH THE
PURCHASER HAD ACCESS.
5.4
THE PURCHASER BEARS ECONOMIC RISK. THE PURCHASER HAS SUBSTANTIAL
EXPERIENCE IN EVALUATING AND INVESTING IN PRIVATE PLACEMENT TRANSACTIONS OF
SECURITIES IN COMPANIES SIMILAR TO THE COMPANY SO THAT IT IS CAPABLE OF
EVALUATING THE MERITS AND RISKS OF ITS INVESTMENT IN THE COMPANY AND HAS THE
CAPACITY TO PROTECT ITS OWN INTERESTS. THE PURCHASER MUST BEAR THE ECONOMIC RISK
OF THIS INVESTMENT UNTIL THE SECURITIES ARE SOLD PURSUANT TO: (I) AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT; OR (II) AN EXEMPTION FROM
REGISTRATION IS AVAILABLE WITH RESPECT TO SUCH SALE.
14
5.5
ACQUISITION FOR OWN ACCOUNT. THE PURCHASER IS ACQUIRING THE NOTE,
THE WARRANT AND THE WARRANT SHARES FOR THE PURCHASER'S OWN ACCOUNT FOR
INVESTMENT ONLY, AND NOT AS A NOMINEE OR AGENT AND NOT WITH A VIEW TOWARDS OR
FOR RESALE IN CONNECTION WITH THEIR DISTRIBUTION.
5.6
THE PURCHASER CAN PROTECT ITS INTEREST. THE PURCHASER REPRESENTS
THAT BY REASON OF ITS, OR OF ITS MANAGEMENT'S, BUSINESS AND FINANCIAL
EXPERIENCE, THE PURCHASER HAS THE CAPACITY TO EVALUATE THE MERITS AND RISKS OF
ITS INVESTMENT IN THE NOTE, THE WARRANT AND THE SECURITIES AND TO PROTECT ITS
OWN INTERESTS IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED IN THIS AGREEMENT
AND THE RELATED AGREEMENTS. FURTHER, THE PURCHASER IS AWARE OF NO PUBLICATION OF
ANY ADVERTISEMENT IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED IN