DEFINED IN RULE 501(A) OF REGULATION D UNDER THE SECURITIES ACT.
(C)
THE INVESTOR UNDERSTANDS THAT THE
RESTRICTED SECURITIES BEING SOLD HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT, OR APPLICABLE STATE SECURITIES LAWS, AND ARE BEING ISSUED IN
RELIANCE ON EXEMPTIONS FOR PRIVATE OFFERINGS CONTAINED IN SECTION 4(2) OF THE
SECURITIES ACT AND IN RELIANCE ON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS
OF CERTAIN STATE SECURITIES LAWS.
BECAUSE THE RESTRICTED SECURITIES HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OR APPLICABLE STATE SECURITIES LAWS,
THE RESTRICTED SECURITIES MAY NOT BE RE-OFFERED OR RESOLD EXCEPT THROUGH A VALID
AND EFFECTIVE REGISTRATION STATEMENT OR PURSUANT TO A VALID EXEMPTION FROM THE
REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT AND APPLICABLE STATE
SECURITIES LAWS.
(D)
THE INVESTOR HAS SUFFICIENT KNOWLEDGE AND
EXPERIENCE IN FINANCIAL AND BUSINESS MATTERS SO AS TO BE CAPABLE OF EVALUATING
THE MERITS AND RISKS OF ITS INVESTMENT IN THE
22
SERIES A PREFERRED SHARES AND IS CAPABLE OF BEARING THE ECONOMIC RISKS OF SUCH
INVESTMENT, INCLUDING A COMPLETE LOSS OF ITS INVESTMENT IN THE SERIES A
PREFERRED.
THE INVESTOR UNDERSTANDS THAT ITS INVESTMENT IN THE SERIES A
PREFERRED SHARES INVOLVES A HIGH DEGREE OF RISK.
8.4.
COMPANY STOCK OWNERSHIP.
THE INVESTOR, TOGETHER
WITH ITS AFFILIATES, OWN, IN THE AGGREGATE, INCLUDING ANY RIGHTS TO ACQUIRE ANY
CAPITAL STOCK OF THE COMPANY (OTHER THAN PURSUANT TO THIS AGREEMENT), NOT MORE
THAN 900,000 SHARES OF COMMON STOCK AS OF THE DATE HEREOF.
ARTICLE IX
MISCELLANEOUS
9.1.
SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
ALL
REPRESENTATIONS AND WARRANTIES CONTAINED HEREIN WILL SURVIVE THE EXECUTION AND
DELIVERY OF THIS AGREEMENT AND THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED
HEREBY, REGARDLESS OF ANY INVESTIGATION MADE BY OR ON BEHALF OF THE INVESTOR,
UNTIL THE DATE THAT IS ONE YEAR AFTER THE CLOSING DATE.
9.2.
AMENDMENTS AND WAIVERS.
EXCEPT AS OTHERWISE
EXPRESSLY PROVIDED HEREIN, THE PROVISIONS OF THIS AGREEMENT MAY BE AMENDED,
MODIFIED OR WAIVED ONLY WITH THE WRITTEN CONSENT OF THE COMPANY AND THE HOLDERS
OF A MAJORITY OF THE OUTSTANDING CONVERSION COMMON SHARES.
NO COURSE OF DEALING
BETWEEN THE COMPANY AND THE HOLDER OF ANY CONVERSION COMMON SHARES OR ANY DELAY
IN EXERCISING ANY RIGHTS HEREUNDER OR UNDER THE REGISTRATION RIGHTS AGREEMENT OR
THE CERTIFICATE OF DESIGNATION WILL OPERATE AS A WAIVER OF ANY RIGHTS OF ANY
SUCH HOLDERS.
9.3.
SUCCESSORS AND ASSIGNS.
EXCEPT AS OTHERWISE
EXPRESSLY PROVIDED HEREIN, ALL COVENANTS AND AGREEMENTS CONTAINED IN THIS
AGREEMENT BY OR ON BEHALF OF ANY OF THE PARTIES WILL BIND AND INURE TO THE
BENEFIT OF THE RESPECTIVE SUCCESSORS AND PERMITTED ASSIGNS OF THE PARTIES,
WHETHER SO EXPRESSED OR NOT.
NEITHER PARTY MAY ASSIGN THIS AGREEMENT OR ITS
RESPECTIVE RIGHTS HEREUNDER; PROVIDED, THAT THE INVESTOR MAY ASSIGN ITS RIGHTS
HEREUNDER, WITHOUT THE CONSENT OF THE COMPANY, TO ANY OF ITS AFFILIATES.
9.4.
REMEDIES.
EACH HOLDER OF ANY SERIES A PREFERRED
SHARES OR CONVERSION COMMON SHARES SHALL HAVE ALL RIGHTS AND REMEDIES SET FORTH
IN THIS AGREEMENT, THE CERTIFICATE OF INCORPORATION AND ALL RIGHTS THAT SUCH
HOLDERS HAVE UNDER