UNDER THE EXCHANGE ACT OR DECLARED
EFFECTIVE IN THE CASE OF THE REGISTRATION STATEMENTS, COMPLIED IN ALL MATERIAL
RESPECTS WITH THE APPLICABLE REQUIREMENTS OF THE SECURITIES ACT OR THE EXCHANGE
ACT AND THE RESPECTIVE RULES AND REGULATIONS OF THE SEC THEREUNDER AND DID NOT
CONTAIN AN UNTRUE STATEMENT OF A MATERIAL FACT OR OMIT TO STATE A MATERIAL FACT
NECESSARY IN ORDER TO MAKE THE STATEMENTS THEREIN NOT MISLEADING.
5.8.
FINANCIAL CONDITION; FINANCIAL STATEMENTS.
THE FINANCIAL STATEMENTS AND SUPPORTING SCHEDULES INCLUDED IN THE COMPANY'S
ANNUAL REPORT ON FORM 10-K FOR THE YEAR ENDED DECEMBER 31, 2003, AND IN ANY
REGISTRATION STATEMENTS OR OTHER SEC REPORTS, IN EACH CASE FILED WITH THE SEC,
ARE COMPLETE AND CORRECT IN ALL MATERIAL RESPECTS AND PRESENT FAIRLY THE
CONSOLIDATED FINANCIAL POSITION OF THE COMPANY AND ITS SUBSIDIARIES AS OF THE
DATES SPECIFIED AND THE CONSOLIDATED RESULTS OF THEIR OPERATIONS FOR THE PERIODS
SPECIFIED, IN EACH CASE, IN CONFORMITY WITH GENERALLY ACCEPTED ACCOUNTING
PRINCIPLES APPLIED ON A CONSISTENT BASIS DURING THE PERIODS INVOLVED, EXCEPT AS
INDICATED THEREIN OR IN THE NOTES THERETO.
6.
NOTEHOLDER REPRESENTATIONS.
EACH
NOTEHOLDER, SEVERALLY BUT NOT JOINTLY, REPRESENTS AND WARRANTS ONLY AS TO ITSELF
AS FOLLOWS:
6.1.
AUTHORIZATION; NO CONTRAVENTION.
THE
EXECUTION, DELIVERY AND PERFORMANCE BY IT OF THIS AGREEMENT: (A) IS WITHIN ITS
POWER AND AUTHORITY AND HAS BEEN DULY AUTHORIZED BY ALL NECESSARY ACTION AND (B)
DOES NOT CONTRAVENE THE TERMS OF ITS ORGANIZATIONAL DOCUMENTS OR ANY AMENDMENT
THEREOF.
6.2.
BINDING EFFECT.
THIS AGREEMENT HAS BEEN DULY
EXECUTED AND DELIVERED BY IT AND THIS AGREEMENT CONSTITUTES ITS LEGAL, VALID AND
BINDING OBLIGATION, ENFORCEABLE AGAINST IT IN ACCORDANCE WITH ITS TERMS.
6.3.
NO LEGAL BAR.
THE EXECUTION, DELIVERY AND
PERFORMANCE OF THIS AGREEMENT BY IT WILL NOT VIOLATE ANY REQUIREMENT OF LAW
APPLICABLE TO IT.
6.4.
PURCHASE FOR OWN ACCOUNT.
THE WARRANTS TO BE
ACQUIRED BY IT PURSUANT TO THIS AGREEMENT ARE BEING ACQUIRED FOR ITS OWN ACCOUNT
AND WITH NO INTENTION OF DISTRIBUTING OR
10
RESELLING SUCH SECURITIES OR ANY PART THEREOF IN ANY TRANSACTION THAT WOULD
VIOLATE THE SECURITIES LAWS OF THE UNITED STATES OF AMERICA, OR ANY STATE
THEREOF, WITHOUT PREJUDICE, HOWEVER, TO ITS RIGHT AT ALL TIMES TO SELL OR
OTHERWISE DISPOSE OF ALL OR ANY PART OF ITS WARRANTS, UNDER AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, OR UNDER AN EXEMPTION FROM SUCH
REGISTRATION AVAILABLE UNDER THE SECURITIES ACT, AND SUBJECT, NEVERTHELESS, TO
THE DISPOSITION OF ITS PROPERTY BEING AT ALL TIMES WITHIN ITS CONTROL.
6.5.
ACCREDITED INVESTOR.
SUCH NOTEHOLDER IS AN
"ACCREDITED INVESTOR" AS THAT TERM IS DEFINED IN RULE 501 OF REGULATION D
PROMULGATED UNDER THE SECURITIES ACT, BY VIRTUE, INTER ALIA, OF ITS BEING A
CORPORATION, MASSACHUSETTS OR SIMILAR BUSINESS TRUST, OR PARTNERSHIP, NOT FORMED
FOR THE SPECIFIC PURPOSE OF ACQUIRING THE WARRANTS OR THE SHARES OF COMMON STOCK
ISSUABLE UPON EXERCISE OF THE WARRANTS, WITH TOTAL ASSETS IN EXCESS OF
$5,000,000.
6.6.
RESTRICTED SECURITIES.
SUCH NOTEHOLDER
UNDERSTANDS THAT THE WARRANTS ACQUIRED BY IT MAY NOT BE SOLD, TRANSFERRED OR