STATE EXEMPTIONS FOR
TRANSACTIONS NOT INVOLVING ANY PUBLIC OFFERING.
EACH INVESTOR REPRESENTS AND
WARRANTS, SEVERALLY AND NOT JOINTLY, THAT IT WILL NOT, DIRECTLY OR INDIRECTLY,
OFFER, SELL OR OTHERWISE DISPOSE OF (OR SOLICIT ANY OFFERS TO BUY, PURCHASE OR
OTHERWISE ACQUIRE) ANY OF THE SECURITIES EXCEPT IN COMPLIANCE WITH THE
SECURITIES ACT, APPLICABLE STATE SECURITIES LAWS AND THE RULES AND REGULATIONS
PROMULGATED THEREUNDER.
4.3
SOPHISTICATION AND FINANCIAL CONDITION OF INVESTORS. EACH INVESTOR
REPRESENTS AND WARRANTS, SEVERALLY AND NOT JOINTLY, TO THE COMPANY THAT IT IS AN
"ACCREDITED INVESTOR" AS DEFINED IN REGULATION D UNDER THE SECURITIES ACT.
EACH
INVESTOR REPRESENTS AND WARRANTS, SEVERALLY AND
NOT JOINTLY, TO THE COMPANY THAT IT CONSIDERS ITSELF TO BE AN EXPERIENCED AND
SOPHISTICATED INVESTOR AND TO HAVE SUCH KNOWLEDGE AND EXPERIENCE IN FINANCIAL
AND BUSINESS MATTERS AS ARE NECESSARY TO EVALUATE THE MERITS AND RISKS OF AN
INVESTMENT IN THE
SERIES C-1 PREFERRED STOCK.
EACH INVESTOR HAS RECEIVED
INFORMATION CONCERNING THE COMPANY, INCLUDING THE COMPANY REPORTS AND THE RISKS
RELATING TO THE COMPANY DESCRIBED IN THE COMPANY'S FORM 10-K FILED DECEMBER 31,
2005 AND THE COMPANY'S QUARTERLY REPORT ON FORM 10-Q FOR THE QUARTER ENDED MARCH
31, 2006.
THE REPRESENTATIONS SET FORTH IN THE PRECEDING SENTENCE SHALL NOT
AFFECT ANY REPRESENTATION OR WARRANTY IN THIS AGREEMENT OF ANY PARTY HERETO OR
ANY CONDITION TO THE OBLIGATIONS OF THE PARTIES HERETO, NOR SHALL IT AFFECT THE
COMPANY'S INDEMNIFICATION OBLIGATIONS (UNDER ARTICLE IX OF THE SERIES C PURCHASE
AGREEMENT).
4.4
TRANSFER OF SERIES C-1 SHARES AND CONVERSION SHARES.
4.4.1
EACH INVESTOR HAS BEEN INFORMED BY THE COMPANY AND HEREBY AGREES
THAT THE SECURITIES MAY BE TRANSFERRED ONLY (I) PURSUANT TO PUBLIC OFFERINGS
REGISTERED UNDER THE SECURITIES ACT, (II) PURSUANT TO RULE 144 PROMULGATED UNDER
THE SECURITIES ACT (OR ANY SIMILAR RULE THEN IN FORCE), (III) TO AN AFFILIATE OF
THE TRANSFEROR, OR (IV) SUBJECT TO THE CONDITIONS SET FORTH IN SECTION 4.4.2,
PURSUANT TO ANY OTHER LEGALLY-AVAILABLE MEANS OF TRANSFER.
4.4.2
IN CONNECTION WITH ANY TRANSFER OF ANY SECURITIES (OTHER THAN A
TRANSFER DESCRIBED IN SECTION 4.41(I) OR (III)), THE HOLDER OF SUCH SHARES SHALL
DELIVER WRITTEN NOTICE TO THE COMPANY DESCRIBING IN REASONABLE DETAIL THE
PROPOSED TRANSFER, TOGETHER WITH AN OPINION OF COUNSEL (KIRKLAND & ELLIS LLP OR
SUCH OTHER COUNSEL WHICH, TO THE COMPANY'S REASONABLE SATISFACTION, IS
KNOWLEDGEABLE IN SECURITIES LAW MATTERS) TO THE EFFECT THAT SUCH TRANSFER MAY BE
EFFECTED WITHOUT REGISTRATION OF SUCH SHARES UNDER THE SECURITIES ACT.
THE
HOLDER OF THE SECURITIES BEING TRANSFERRED SHALL NOT CONSUMMATE THE TRANSFER
UNTIL (I) THE PROSPECTIVE TRANSFEREE HAS CONFIRMED TO THE COMPANY IN WRITING ITS
AGREEMENT TO BE BOUND BY THE PROVISIONS OF THIS SECTION 4.4.2 OR (II) SUCH
HOLDER SHALL HAVE DELIVERED TO THE COMPANY AN OPINION OF SUCH COUNSEL THAT NO
SUBSEQUENT TRANSFER OF SUCH SECURITIES SHALL REQUIRE REGISTRATION UNDER THE
SECURITIES ACT.
PROMPTLY UPON RECEIPT OF ANY OPINION DESCRIBED IN CLAUSE (II)
OF THE PRECEDING SENTENCE, THE COMPANY SHALL PREPARE AND DELIVER IN CONNECTION
WITH THE CONSUMMATION OF THE PROPOSED