QUESTIONS
4
OF THE COMPANY AND ITS REPRESENTATIVE AND TO OBTAIN FROM REPRESENTATIVES OF THE
COMPANY SUCH INFORMATION AS IS NECESSARY TO PERMIT IT TO EVALUATE THE MERITS AND
RISKS OF ITS INVESTMENT IN THE COMPANY AND HAS INDEPENDENTLY, WITHOUT RELIANCE
UPON ANY REPRESENTATIVES OF THE COMPANY AND BASED ON SUCH INFORMATION AS THE
HOLDER DEEMED APPROPRIATE, MADE ITS OWN ANALYSIS AND DECISION TO ENTER INTO THIS
AGREEMENT. THE HOLDER HAS HAD THE OPPORTUNITY TO CONSULT WITH ITS ACCOUNTING,
TAX, FINANCIAL AND LEGAL ADVISORS TO BE ABLE TO EVALUATE THE RISKS INVOLVED IN
THE NOTE EXCHANGE PURSUANT HERETO AND TO MAKE AN INFORMED INVESTMENT DECISION
WITH RESPECT TO SUCH NOTE EXCHANGE.
THE HOLDER ACKNOWLEDGES THAT THE COMPANY IS
RELYING ON THE TRUTH AND ACCURACY OF THE FOREGOING REPRESENTATIONS AND
WARRANTIES IN THE OFFERING OF THE NEW NOTES TO THE HOLDER WITHOUT HAVING FIRST
REGISTERED THE NEW NOTES OR THE UNDERLYING COMMON STOCK UNDER THE SECURITIES
ACT.
SECTION 2.5
ACQUISITION ENTIRELY FOR OWN ACCOUNT.
THE HOLDER IS
ACQUIRING THE NEW NOTES FOR ITS OWN ACCOUNT AND NOT TOWARDS, OR FOR RESALE IN
CONNECTION WITH, THE PUBLIC SALE OR DISTRIBUTION THEREOF, EXCEPT PURSUANT TO
SALES REGISTERED OR EXEMPTED UNDER THE SECURITIES ACT; PROVIDED, HOWEVER THAT BY
MAKING THE REPRESENTATIONS HEREIN, THE HOLDER DOES NOT AGREE TO HOLD ANY OF SUCH
NEW NOTES FOR ANY MINIMUM OR OTHER SPECIFIC TERM AND RESERVES THE RIGHT TO
DISPOSE OF SUCH NEW NOTES OR THE UNDERLYING COMMON STOCK AT ANY TIME.
SECTION 2.6
RESTRICTED SECURITIES.
THE HOLDER UNDERSTANDS THAT
NEITHER THE NEW NOTES NOR THE UNDERLYING COMMON STOCK HAVE BEEN REGISTERED UNDER
THE SECURITIES ACT, AND ARE BEING ISSUED HEREUNDER BY REASON OF A SPECIFIC
EXEMPTION FROM THE REGISTRATION PROVISIONS OF THE SECURITIES ACT WHICH DEPENDS
UPON, AMONG OTHER THINGS, THE BONA FIDE NATURE OF THE INVESTMENT INTENT AND THE
ACCURACY OF THE HOLDER'S REPRESENTATIONS AS EXPRESSED HEREIN.
SECTION 2.7
NO PUBLIC MARKET.
THE HOLDER UNDERSTANDS THAT NO PUBLIC
MARKET NOW EXISTS FOR THE NEW NOTES, AND THAT THE COMPANY HAS MADE NO ASSURANCE
THAT A PUBLIC MARKET WILL EVER EXIST FOR THE NEW NOTES.
SECTION 2.8
AFFILIATE STATUS.
NEITHER THE HOLDER NOR ANY OF ITS
AFFILIATES IS, AN OFFICER, DIRECTOR OR A "BENEFICIAL OWNER" OF MORE THAN 10% OF
THE SHARES OF COMMON STOCK (AS DEFINED FOR PURPOSES OF RULE 13D-3 OF THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED (THE "EXCHANGE ACT")).
NEITHER
HOLDER NOR ANY OF ITS AFFILIATES IS, (A) EFFECTING OR SEEKING, OFFERING OR
PROPOSING (WHETHER PUBLICLY OR OTHERWISE) TO EFFECT, OR CAUSE OR PARTICIPATE IN
OR IN ANY WAY ASSIST ANY OTHER PERSON TO EFFECT OR SEEK, OFFER OR PROPOSE
(WHETHER PUBLICLY OR OTHERWISE) TO EFFECT OR PARTICIPATE IN, (I) ANY MATERIAL
ACQUISITION OF ANY SECURITIES (OR BENEFICIAL OWNERSHIP THEREOF) OR ASSETS OF THE
COMPANY OR ANY OF ITS SUBSIDIARIES OUT OF THE ORDINARY COURSE OF BUSINESS ,
(II) ANY TENDER OR EXCHANGE OFFER, MERGER OR OTHER BUSINESS COMBINATION
INVOLVING THE COMPANY OR ANY OF ITS SUBSIDIARIES, (III) ANY RECAPITALIZATION,