TERMINATION, CANCELLATION OR ACCELERATION) UNDER,
ANY OF THE TERMS, CONDITIONS OR PROVISIONS OF ANY MATERIAL NOTE, BOND, MORTGAGE,
INDENTURE, LEASE, LICENSE, CONTRACT, AGREEMENT OR OTHER INSTRUMENT OR OBLIGATION
TO WHICH BUYER IS A PARTY OR BY WHICH BUYER OR ANY OF ITS PROPERTIES OR ASSETS
MAY BE BOUND; (III) VIOLATE ANY MATERIAL ORDER, WRIT, JUDGMENT, INJUNCTION,
DECREE, OR LAWS APPLICABLE TO BUYER OR ANY OF ITS PROPERTIES OR ASSETS; OR (IV)
EXCEPT AS SET FORTH ON SCHEDULE 3.3 AND EXCEPT FOR FILINGS PURSUANT TO THE HSR
ACT, REQUIRE ON THE PART OF BUYER ANY FILING OR REGISTRATION WITH, NOTIFICATION
TO, OR AUTHORIZATION, CONSENT OR APPROVAL OF, ANY GOVERNMENTAL ENTITY, INCLUDING
ANY FOREIGN GOVERNMENTAL ENTITY, OTHER THAN, IN EACH CASE, SUCH VIOLATIONS,
BREACHES, DEFAULTS, OR FAILURES TO FILE OR REGISTER THAT WOULD NOT HAVE A
MATERIAL ADVERSE EFFECT ON BUYER.
25
SECTION 3.4
ACTIONS AND PROCEEDINGS.
THERE ARE NO (I) OUTSTANDING
JUDGMENTS, ORDERS, WRITS, INJUNCTIONS OR DECREES OF ANY COURT OR GOVERNMENTAL
ENTITY AGAINST BUYER OR (II) ACTIONS, SUITS, CLAIMS OR LEGAL, ADMINISTRATIVE OR
ARBITRATION PROCEEDINGS OR INVESTIGATIONS PENDING OR, TO BUYER'S KNOWLEDGE,
THREATENED IN WRITING AGAINST BUYER, EXCEPT IN EACH CASE AS WOULD NOT HAVE A
MATERIAL ADVERSE EFFECT ON BUYER.
SECTION 3.5
ACCREDITED INVESTOR; PURCHASE ENTIRELY FOR OWN ACCOUNT;
FINANCIAL CONDITION; EXPERIENCE.
(A)
BUYER IS AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF THAT TERM
AS DEFINED IN RULE 501(A) PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED.
(B)
THE SHARES WILL BE ACQUIRED FOR INVESTMENT FOR BUYER'S OWN ACCOUNT
AND NOT WITH A VIEW TO THE DISTRIBUTION OF ANY PART THEREOF IN VIOLATION OF THE
SECURITIES ACT OF 1933, AS AMENDED.
BUYER DOES NOT HAVE ANY CONTRACT,
UNDERTAKING OR AGREEMENT WITH ANY PERSON TO SELL, TRANSFER, OR GRANT
PARTICIPATIONS WITH RESPECT TO ANY OF THE SHARES.
(C)
BUYER'S FINANCIAL CONDITION IS SUCH THAT IT IS ABLE TO BEAR THE
RISK OF HOLDING THE SHARES FOR AN INDEFINITE PERIOD OF TIME AND CAN BEAR THE
LOSS OF ITS ENTIRE INVESTMENT IN ITS SHARES.
(D)
BUYER HAS SUCH KNOWLEDGE AND EXPERIENCE IN FINANCIAL AND BUSINESS
MATTERS AND IN MAKING HIGH RISK INVESTMENTS OF THIS TYPE THAT IT IS CAPABLE OF
EVALUATING THE MERITS AND RISKS OF THE PURCHASE OF THE SHARES.
SECTION 3.6
BROKERS OR FINDERS.
BUYER REPRESENTS, AS TO ITSELF,
ITS SUBSIDIARIES AND ITS AFFILIATES, THAT OTHER THAN THOMAS WEISEL PARTNERS LLC,
WHOSE FEES AND EXPENSES WILL BE PAID BY BUYER, NO AGENT, BROKER, INVESTMENT
BANKER, FINANCIAL ADVISOR OR OTHER FIRM OR PERSON IS OR WILL BE ENTITLED TO ANY
BROKERS' OR FINDERS' FEE OR ANY OTHER COMMISSION OR SIMILAR FEE IN CONNECTION
WITH ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
SECTION 3.7
SUFFICIENT FUNDS AND RESOURCES.
BUYER WILL HAVE
SUFFICIENT LIQUID FUNDS (THROUGH CASH ON HAND, EXISTING CREDIT ARRANGEMENTS OR
OTHERWISE) TO PAY ALL AMOUNTS PAYABLE BY BUYER HEREUNDER AT THE CLOSING,
INCLUDING PAYMENT OF THE PURCHASE PRICE, AND SUFFICIENT FUNDS AND RESOURCES TO
PERFORM AND DISCHARGE ITS OBLIGATIONS UNDER THIS AGREEMENT FROM AND AFTER THE