REPRESENTATIONS AND WARRANTS SET FORTH IN SECTION 2 HEREOF, THE ISSUANCE BY THE
COMPANY OF THE SECURITIES IS EXEMPT FROM REGISTRATION UNDER THE 1933 ACT.
(D)
NO CONFLICTS.
THE EXECUTION, DELIVERY AND PERFORMANCE OF THE TRANSACTION
DOCUMENTS BY THE COMPANY AND THE CONSUMMATION BY THE COMPANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY AND THEREBY (INCLUDING, WITHOUT LIMITATION, THE ISSUANCE OF
THE NOTES AND WARRANTS, THE PLEDGE AND ANY TRANSFER OF THE AVII SHARES AND
RESERVATION FOR ISSUANCE AND ISSUANCE OF THE CONVERSION SHARES, THE INTEREST
SHARES AND THE WARRANT SHARES) WILL NOT (I) RESULT IN A VIOLATION OF THE
CERTIFICATE OF INCORPORATION, ANY CERTIFICATE OF DESIGNATIONS, PREFERENCES AND
RIGHTS OF ANY OUTSTANDING SERIES OF PREFERRED STOCK OR BYLAWS OF THE COMPANY OR
ANY SUBSIDIARY OR (II) EXCEPT AS DISCLOSED IN SCHEDULE 3(D), CONFLICT WITH, OR
CONSTITUTE A DEFAULT (OR AN EVENT WHICH WITH NOTICE OR LAPSE OF TIME OR BOTH
WOULD BECOME A DEFAULT) UNDER, OR GIVE TO OTHERS ANY RIGHTS OF TERMINATION,
AMENDMENT, ACCELERATION OR CANCELLATION OF, ANY AGREEMENT, INDENTURE OR
INSTRUMENT TO WHICH THE COMPANY OR ANY OF ITS SUBSIDIARIES IS A PARTY, OR (III)
RESULT IN A VIOLATION OF ANY LAW, RULE, REGULATION, ORDER, JUDGMENT OR DECREE
(INCLUDING FEDERAL AND STATE SECURITIES LAWS AND REGULATIONS AND THE RULES AND
REGULATIONS OF THE PRINCIPAL MARKET) APPLICABLE TO THE COMPANY OR ANY OF ITS
SUBSIDIARIES OR BY WHICH ANY PROPERTY OR ASSET OF THE COMPANY OR ANY OF ITS
SUBSIDIARIES IS BOUND OR AFFECTED, EXCEPT IN THE CASE OF EACH OF CLAUSES (II)
AND (III), SUCH AS WOULD NOT, INDIVIDUALLY OR IN THE AGGREGATE, HAVE OR
REASONABLY BE EXPECTED TO RESULT IN A MATERIAL ADVERSE EFFECT.
(E)
CONSENTS.
OTHER THAN (I) THE FILING WITH THE SEC OF THE REGISTRATION
STATEMENT (AS DEFINED IN THE REGISTRATION RIGHTS AGREEMENT), (II) ANY FILINGS
REQUIRED PURSUANT TO SECTION 4(B) HEREOF AND (III) THE APPLICATION(S) TO THE
PRINCIPAL MARKET FOR THE LISTING OF THE CONVERSION SHARES, INTEREST SHARES AND
WARRANT SHARES FOR TRADING THEREON, THE COMPANY IS NOT REQUIRED TO OBTAIN ANY
CONSENT, AUTHORIZATION OR ORDER OF, OR MAKE ANY FILING OR REGISTRATION WITH, ANY
COURT, GOVERNMENTAL AGENCY OR ANY REGULATORY OR SELF-REGULATORY AGENCY OR ANY
OTHER PERSON IN ORDER FOR IT TO EXECUTE, DELIVER OR PERFORM ANY OF ITS
OBLIGATIONS UNDER OR CONTEMPLATED BY THE TRANSACTION DOCUMENTS, IN EACH CASE IN
ACCORDANCE WITH THE TERMS HEREOF OR THEREOF.
OTHER THAN THE FILING WITH THE SEC
OF THE REGISTRATION STATEMENT, ALL CONSENTS, AUTHORIZATIONS, ORDERS, FILINGS AND
REGISTRATIONS WHICH THE COMPANY IS REQUIRED TO OBTAIN PURSUANT TO THE PRECEDING
SENTENCE HAVE BEEN OBTAINED OR EFFECTED ON OR PRIOR TO THE CLOSING DATE.
THE
COMPANY AND ITS SUBSIDIARIES ARE
7
UNAWARE OF ANY FACTS OR CIRCUMSTANCES WHICH MIGHT REASONABLY BE EXPECTED TO
PREVENT THE COMPANY FROM OBTAINING OR EFFECTING ANY OF THE REGISTRATION,
APPLICATION OR FILINGS PURSUANT TO THE PRECEDING SENTENCE.
THE COMPANY IS NOT
IN VIOLATION OF THE LISTING REQUIREMENTS OF THE PRINCIPAL MARKET.
THE COMPANY
HAS NO KNOWLEDGE, WITHOUT HAVING UNDERTAKEN ANY AFFIRMATIVE INDEPENDENT