WAIVER OF THE
CONDITIONS SET FORTH IN ARTICLES VI AND VII HEREOF, THE CLOSING WILL TAKE PLACE
AT 10:00 A.M. PACIFIC STANDARD TIME ON FEBRUARY 10, 2005 OR AT SUCH OTHER DATE
OR TIME AGREED UPON BY THE PARTIES TO THIS AGREEMENT (THE "CLOSING DATE").
THE
CLOSING WILL BE HELD AT THE OFFICES OF STRADLING YOCCA CARLSON & RAUTH OR AT
SUCH OTHER PLACE AS THE PARTIES AGREE.
ARTICLE II
INVESTOR'S REPRESENTATIONS AND WARRANTIES
Each Investor represents and warrants to the Company, severally and solely with
respect to itself and its purchase hereunder and not with respect to any other
Investor, that:
2.1
INVESTMENT PURPOSE.
THE INVESTOR IS PURCHASING THE SECURITIES FOR
ITS OWN ACCOUNT AND NOT WITH A PRESENT VIEW TOWARD THE PUBLIC SALE OR
DISTRIBUTION THEREOF, EXCEPT PURSUANT TO SALES REGISTERED OR EXEMPTED FROM
REGISTRATION UNDER THE SECURITIES ACT; PROVIDED, HOWEVER, THAT BY MAKING THE
REPRESENTATION HEREIN, THE INVESTOR DOES NOT AGREE TO HOLD ANY OF THE SECURITIES
FOR ANY MINIMUM OR OTHER SPECIFIC TERM AND RESERVES THE RIGHT TO DISPOSE OF THE
SECURITIES AT ANY TIME IN ACCORDANCE WITH OR PURSUANT TO A REGISTRATION
STATEMENT OR AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT.
2.2
ACCREDITED INVESTOR STATUS.
THE INVESTOR IS AN "ACCREDITED
INVESTOR" AS DEFINED IN RULE 501(A) OF REGULATION D.
THE INVESTOR HAS DELIVERED
AN INVESTOR QUESTIONNAIRE IN THE FORM OF EXHIBIT C TO THE COMPANY.
2.3
RELIANCE ON EXEMPTIONS.
THE INVESTOR UNDERSTANDS THAT THE
SECURITIES ARE BEING OFFERED AND SOLD TO IT IN RELIANCE UPON SPECIFIC EXEMPTIONS
FROM THE REGISTRATION REQUIREMENTS OF UNITED STATES FEDERAL AND STATE SECURITIES
LAWS AND THAT THE COMPANY IS RELYING UPON THE TRUTH AND ACCURACY OF, AND THE
INVESTOR'S COMPLIANCE WITH, THE REPRESENTATIONS, WARRANTIES, AGREEMENTS,
ACKNOWLEDGMENTS AND UNDERSTANDINGS OF THE INVESTOR SET FORTH HEREIN IN ORDER TO
DETERMINE THE AVAILABILITY OF SUCH EXEMPTIONS AND THE ELIGIBILITY OF THE
INVESTOR TO ACQUIRE THE SECURITIES.
2.4
INFORMATION.
THE INVESTOR AND ITS ADVISORS, IF ANY, HAVE BEEN
FURNISHED WITH ALL MATERIALS RELATING TO THE BUSINESS, FINANCES AND OPERATIONS
OF THE COMPANY, AND MATERIALS RELATING TO THE OFFER AND SALE OF THE SECURITIES,
THAT HAVE BEEN REQUESTED BY THE INVESTOR OR ITS ADVISORS, IF ANY.
THE INVESTOR
AND ITS ADVISORS, IF ANY, HAVE BEEN AFFORDED THE OPPORTUNITY TO ASK QUESTIONS OF
THE COMPANY.
NEITHER SUCH INQUIRIES NOR ANY OTHER DUE DILIGENCE INVESTIGATION
CONDUCTED BY INVESTOR OR ANY OF ITS ADVISORS OR REPRESENTATIVES MODIFY, AMEND OR
AFFECT THE INVESTOR'S RIGHT TO RELY ON THE COMPANY'S REPRESENTATIONS AND
WARRANTIES CONTAINED IN ARTICLE III BELOW.
THE INVESTOR ACKNOWLEDGES AND
UNDERSTANDS THAT ITS INVESTMENT IN THE SECURITIES INVOLVES A SIGNIFICANT DEGREE
OF RISK.
2
2.5
GOVERNMENTAL REVIEW.
THE INVESTOR UNDERSTANDS THAT NO UNITED
STATES FEDERAL OR STATE AGENCY OR ANY OTHER GOVERNMENT OR GOVERNMENTAL AGENCY
HAS PASSED UPON OR MADE ANY RECOMMENDATION OR ENDORSEMENT OF THE SECURITIES OR
AN INVESTMENT THEREIN.
2.6
TRANSFER OR RESALE.
THE INVESTOR UNDERSTANDS THAT:
(A)
EXCEPT AS PROVIDED IN THE REGISTRATION RIGHTS AGREEMENT, THE
SECURITIES HAVE NOT BEEN AND ARE NOT