AND HAS NOT
RELIED ON ANY INFORMATION OR REPRESENTATIONS MADE BY THIRD PARTIES.
(H)
ACCREDITED INVESTOR.
EACH PURCHASER IS AN "ACCREDITED INVESTOR"
(AS DEFINED IN RULE 501 OF REGULATION D), AND SUCH PURCHASER HAS SUCH EXPERIENCE
IN BUSINESS AND FINANCIAL MATTERS THAT IT IS CAPABLE OF EVALUATING THE MERITS
AND RISKS OF AN INVESTMENT IN THE SECURITIES.
SUCH PURCHASER IS NOT REQUIRED TO
BE REGISTERED AS A BROKER-DEALER UNDER SECTION 15 OF THE EXCHANGE ACT AND SUCH
PURCHASER IS NOT A BROKER-DEALER.
EACH PURCHASER ACKNOWLEDGES THAT AN
INVESTMENT IN THE SECURITIES IS SPECULATIVE AND INVOLVES A HIGH DEGREE OF RISK.
(I)
CERTAIN FEES.
THE PURCHASERS HAVE NOT EMPLOYED ANY BROKER OR
FINDER OR INCURRED ANY LIABILITY FOR ANY BROKERAGE OR INVESTMENT BANKING FEES,
COMMISSIONS, FINDERS' STRUCTURING FEES, FINANCIAL ADVISORY FEES OR OTHER SIMILAR
FEES IN CONNECTION WITH THE TRANSACTION DOCUMENTS.
(J)
INDEPENDENT INVESTMENT.
NO PURCHASER HAS AGREED TO ACT WITH ANY
OTHER PURCHASER FOR THE PURPOSE OF ACQUIRING, HOLDING, VOTING OR DISPOSING OF
THE SECURITIES PURCHASED HEREUNDER FOR PURPOSES OF SECTION 13(D) UNDER THE
EXCHANGE ACT, AND EACH PURCHASER IS ACTING INDEPENDENTLY WITH RESPECT TO ITS
INVESTMENT IN THE SECURITIES.
(i)
Non-Shorting.
Each Purchaser represents and warrants that it has
not engaged in any short sales of the Common Stock and covenants that it will
not engage in any short sales of the Common Stock prior to the earlier of (A)
the filing of the Form 8-K (as defined in Section 3.11 hereof) or (B) the
issuance of the Press Release (as defined in Section 3.11 hereof).
14
SECTION 2.3
REPRESENTATIONS AND WARRANTIES OF THE OFFSHORE
PURCHASER.
THE PURCHASER LISTED ON SCHEDULE I HERETO (THE "OFFSHORE PURCHASER")
HEREBY REPRESENTS AND WARRANTS TO THE COMPANY WITH RESPECT SOLELY TO ITSELF AND
NOT WITH RESPECT TO ANY OTHER PURCHASER AS FOLLOWS AS OF THE DATE HEREOF AND AS
OF THE CLOSING DATE:
(A)
FOREIGN PURCHASER.
THE OFFSHORE PURCHASER IS NOT A "U.S. PERSON"
AS DEFINED UNDER RULE 902(O) OF REGULATION S UNDER THE SECURITIES ACT.
THE
OFFSHORE PURCHASER IS NOT ACQUIRING THE SECURITIES FOR THE ACCOUNT OR BENEFIT OF
ANY U.S. PERSON.
(B)
OFFSHORE TRANSACTION.
THE DOCUMENT EFFECTING THIS PURCHASE AND
SALE HAS BEEN EXECUTED BY THE OFFSHORE PURCHASER OUTSIDE THE "UNITED STATES" (AS
DEFINED IN RULE 902(P) OF REGULATION S).
THE BUYER IS ACQUIRING THE SECURITIES
IN AN "OFFSHORE TRANSACTION" (AS DEFINED IN RULE 902(I) OF REGULATION S).
THE
SECURITIES WERE NOT OFFERED TO THE OFFSHORE PURCHASER IN THE UNITED STATES AND
AT THE TIME OF EXECUTION OF THIS AGREEMENT AND THE TIME OF ANY OFFER TO THE
OFFSHORE PURCHASER TO PURCHASE THE SECURITIES HEREUNDER, THE OFFSHORE PURCHASER
WAS PHYSICALLY OUTSIDE OF THE UNITED STATES.
ARTICLE III
COVENANTS
The Company covenants with each Purchaser as follows, which covenants are for
the benefit of each Purchaser and their respective permitted assignees.
SECTION 3.1
SECURITIES COMPLIANCE.
THE COMPANY SHALL NOTIFY THE
COMMISSION IN ACCORDANCE WITH ITS RULES AND REGULATIONS, OF THE TRANSACTIONS
CONTEMPLATED BY ANY OF THE TRANSACTION DOCUMENTS AND SHALL TAKE