OF THE COMPANY THAT IT OR THEY
THEN OWN OR HAVE THE RIGHT TO ACQUIRE), IN EXCESS OF 19.999% OF THE OUTSTANDING
SHARES OF COMMON STOCK OR THE VOTING POWER OF THE COMPANY ON A POST TRANSACTION
BASIS THAT ASSUMES THAT THE CLOSING SHALL HAVE OCCURRED.
(H)
INDEPENDENT INVESTMENT DECISION.
SUCH
INVESTOR HAS INDEPENDENTLY EVALUATED THE MERITS OF ITS DECISION TO PURCHASE
SECURITIES PURSUANT TO THE TRANSACTION DOCUMENTS, AND SUCH INVESTOR CONFIRMS
THAT IT HAS NOT RELIED ON THE ADVICE OF ANY OTHER INVESTOR'S BUSINESS AND/OR
LEGAL COUNSEL IN MAKING SUCH DECISION.
SUCH INVESTOR HAS NOT RELIED ON THE
BUSINESS OR LEGAL ADVICE OF ROTH CAPITAL PARTNERS, LLC OR ANY OF ITS AGENTS,
COUNSEL OR AFFILIATES IN MAKING ITS INVESTMENT DECISION HEREUNDER, AND CONFIRMS
THAT NONE OF SUCH PERSONS HAS MADE ANY REPRESENTATIONS OR WARRANTIES TO SUCH
INVESTOR IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THE TRANSACTION
DOCUMENTS.
THE COMPANY ACKNOWLEDGES AND AGREES THAT NO INVESTOR HAS MADE OR MAKES ANY
REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED
HEREBY OTHER THAN THOSE SPECIFICALLY SET FORTH IN THIS SECTION 3.2.
ARTICLE IV.
OTHER AGREEMENTS OF THE PARTIES
4.1
(A)
SECURITIES MAY ONLY BE DISPOSED OF IN COMPLIANCE WITH STATE AND FEDERAL
SECURITIES LAWS.
IN CONNECTION WITH ANY TRANSFER OF THE SECURITIES OTHER THAN
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT, TO THE COMPANY, TO AN AFFILIATE
OF AN INVESTOR OR IN CONNECTION WITH A PLEDGE AS CONTEMPLATED IN SECTION 4.1(B),
THE COMPANY MAY REQUIRE THE TRANSFEROR THEREOF TO PROVIDE TO THE COMPANY AN
OPINION OF COUNSEL SELECTED BY THE TRANSFEROR, THE FORM AND SUBSTANCE OF WHICH
OPINION SHALL BE REASONABLY SATISFACTORY TO THE COMPANY, TO THE EFFECT THAT SUCH
TRANSFER DOES NOT REQUIRE REGISTRATION OF SUCH TRANSFERRED SECURITIES UNDER THE
SECURITIES ACT.
(B)
CERTIFICATES EVIDENCING THE SECURITIES WILL
CONTAIN THE FOLLOWING LEGEND, UNTIL SUCH TIME AS THEY ARE NOT REQUIRED UNDER
SECTION 4.1(C):
THESE SHARES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE
COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO
AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH
APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO
THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY
13
ACCEPTABLE TO THE COMPANY.
THESE SHARES MAY BE PLEDGED IN CONNECTION WITH A
BONA FIDE MARGIN ACCOUNT SECURED BY SUCH SECURITIES.
THE COMPANY ACKNOWLEDGES AND AGREES THAT AN INVESTOR MAY FROM TIME TO TIME
PLEDGE, AND/OR GRANT A SECURITY INTEREST IN SOME OR ALL OF THE SECURITIES
PURSUANT TO A BONA FIDE MARGIN AGREEMENT IN CONNECTION WITH A BONA FIDE MARGIN
ACCOUNT AND, IF REQUIRED UNDER THE TERMS OF SUCH AGREEMENT OR ACCOUNT, SUCH
INVESTOR MAY TRANSFER PLEDGED OR