NO PRESENT INTENTION TO DISTRIBUTE
ANY OF THE CONVERTIBLE PREFERRED STOCK OR THE CONVERSION SECURITIES TO ANY
PERSON, (II) WILL NOT SELL OR OTHERWISE DISPOSE OF ANY OF THE CONVERTIBLE
PREFERRED STOCK OR THE CONVERSION SECURITIES, EXCEPT IN COMPLIANCE WITH THE
REGISTRATION REQUIREMENTS OR EXEMPTION PROVISIONS OF THE SECURITIES ACT AND ANY
OTHER APPLICABLE SECURITIES LAWS, (III) HAS SUCH KNOWLEDGE AND EXPERIENCE IN
FINANCIAL AND BUSINESS MATTERS AND IN INVESTMENTS OF THIS TYPE THAT IT IS
CAPABLE OF EVALUATING THE MERITS AND RISKS OF ITS INVESTMENT IN THE CONVERTIBLE
PREFERRED STOCK AND THE CONVERSION SECURITIES, AND OF MAKING AN INFORMED
INVESTMENT DECISION, AND (IV) IS AN "ACCREDITED INVESTOR" (AS THAT TERM IS
DEFINED BY RULE 501 OF THE SECURITIES ACT).
(E)
KNOWLEDGE AS TO CONDITIONS.
AS OF THE DATE OF THIS AGREEMENT,
SUCH INVESTOR HAS NOT BEEN ADVISED BY ANY GOVERNMENTAL ENTITY THAT, AND HAS NO
REASONABLE BASIS TO BELIEVE WHY, ANY REGULATORY APPROVALS, CONSENTS OR
STATEMENTS OF NON-OBJECTION REQUIRED OR OTHERWISE A CONDITION TO THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT WILL NOT BE
OBTAINED.
(F)
SUFFICIENT FUNDS.
SUCH INVESTOR HAS OR WILL HAVE PRIOR TO THE
CLOSING DATE, SUFFICIENT CASH, AVAILABLE LINES OF CREDIT OR OTHER SOURCES OF
IMMEDIATELY AVAILABLE FUNDS TO ENABLE IT TO TIMELY DELIVER TO THE COMPANY THE
PURCHASE PRICE PAYABLE HEREUNDER BY SUCH INVESTOR.
(G)
OWNERSHIP.
AS OF THE CLOSE OF BUSINESS ON THE BUSINESS DAY
IMMEDIATELY PRECEDING THE DATE HERETO, SUCH INVESTOR BENEFICIALLY OWNS (AS
DETERMINED IN ACCORDANCE WITH RULE 13D-3 UNDER THE EXCHANGE ACT) THE NUMBER OF
SHARES OF COMMON STOCK SET FORTH NEXT TO SUCH INVESTOR'S NAME ON ANNEX A AND,
OTHER THAN AS SET FORTH ON ANNEX A HEREOF, DOES NOT BENEFICIALLY OWN (AS
DETERMINED IN ACCORDANCE WITH RULE 13D-3 UNDER THE EXCHANGE ACT) OR HAVE THE
RIGHT TO VOTE WITH RESPECT TO ANY EQUITY SECURITIES OF THE COMPANY.
(H)
NO CONFLICTS.
THE EXECUTION, DELIVERY AND PERFORMANCE BY SUCH
INVESTOR OF THIS AGREEMENT, THE COMPLIANCE BY SUCH INVESTOR WITH ALL OF THE
PROVISIONS OF THIS AGREEMENT
17
AND THE CONSUMMATION OF THE TRANSACTIONS HEREIN CONTEMPLATED WILL NOT
(I) VIOLATE, CONFLICT WITH, OR RESULT IN A BREACH OF ANY PROVISION OF, OR
CONSTITUTE A DEFAULT (OR AN EVENT WHICH, WITH NOTICE OR LAPSE OF TIME OR BOTH,
WOULD CONSTITUTE A DEFAULT) UNDER, OR RESULT IN THE TERMINATION OF, OR
ACCELERATE THE PERFORMANCE REQUIRED BY, OR RESULT IN A RIGHT OF TERMINATION OR
ACCELERATION OF, OR RESULT IN THE CREATION OF, ANY LIEN, SECURITY INTEREST,
CHARGE OR ENCUMBRANCE UPON ANY OF THE PROPERTIES OR ASSETS OF SUCH INVESTOR
UNDER ANY OF THE TERMS, CONDITIONS OR PROVISIONS OF (A) ITS CERTIFICATE OF
INCORPORATION OR BY-LAWS OR OTHER ORGANIZATIONAL DOCUMENTS, AS APPLICABLE, OR
(B) ANY NOTE, BOND, MORTGAGE, INDENTURE, DEED OF TRUST, LICENSE, LEASE,
AGREEMENT OR OTHER INSTRUMENT OR OBLIGATION TO WHICH SUCH INVESTOR IS A PARTY OR
BY WHICH IT MAY BE BOUND, OR TO WHICH SUCH INVESTOR OR ANY OF ITS PROPERTIES OR
ASSETS MAY BE SUBJECT, OR (II)