HAS ANY PURCHASER AGREED, TO DESIST FROM PURCHASING OR SELLING,
LONG AND/OR SHORT, SECURITIES OF THE COMPANY, OR "DERIVATIVE" SECURITIES BASED
ON SECURITIES ISSUED BY THE COMPANY OR TO HOLD THE SECURITIES FOR ANY SPECIFIED
TERM; (II) THAT PAST OR FUTURE OPEN MARKET OR OTHER TRANSACTIONS BY ANY
PURCHASER, INCLUDING SHORT SALES, AND SPECIFICALLY INCLUDING, WITHOUT
LIMITATION, SHORT SALES OR "DERIVATIVE" TRANSACTIONS, BEFORE OR AFTER THE
CLOSING OF THIS OR FUTURE PRIVATE PLACEMENT TRANSACTIONS, MAY NEGATIVELY IMPACT
THE MARKET PRICE OF THE COMPANY'S PUBLICLY-TRADED SECURITIES; (III) THAT ANY
PURCHASER, AND COUNTER-PARTIES IN "DERIVATIVE" TRANSACTIONS TO WHICH ANY SUCH
PURCHASER IS A PARTY, DIRECTLY OR INDIRECTLY, PRESENTLY MAY HAVE A "SHORT"
POSITION IN THE COMMON STOCK, AND (IV) THAT EACH PURCHASER SHALL NOT BE DEEMED
TO HAVE ANY AFFILIATION WITH OR CONTROL OVER ANY ARM'S LENGTH COUNTER-PARTY IN
ANY "DERIVATIVE" TRANSACTION.
THE COMPANY FURTHER UNDERSTANDS AND ACKNOWLEDGES
THAT (A) ONE OR MORE PURCHASERS MAY ENGAGE IN HEDGING ACTIVITIES AT VARIOUS
TIMES DURING THE PERIOD THAT THE SECURITIES ARE OUTSTANDING, INCLUDING, WITHOUT
LIMITATION, DURING THE PERIODS THAT THE VALUE OF THE WARRANT SHARES DELIVERABLE
WITH RESPECT TO SECURITIES ARE BEING DETERMINED AND (B) SUCH HEDGING ACTIVITIES
(IF ANY) COULD REDUCE THE VALUE OF THE EXISTING STOCKHOLDERS' EQUITY INTERESTS
IN THE COMPANY AT AND AFTER THE TIME THAT THE HEDGING ACTIVITIES ARE BEING
CONDUCTED.
THE COMPANY ACKNOWLEDGES THAT SUCH AFOREMENTIONED HEDGING ACTIVITIES
DO NOT CONSTITUTE A BREACH OF ANY OF THE TRANSACTION DOCUMENTS.
(HH)
REGULATION M COMPLIANCE.
THE COMPANY HAS NOT, AND
TO ITS KNOWLEDGE NO ONE ACTING ON ITS BEHALF HAS, (I) TAKEN, DIRECTLY OR
INDIRECTLY, ANY ACTION DESIGNED TO CAUSE OR TO RESULT IN THE STABILIZATION OR
MANIPULATION OF THE PRICE OF ANY SECURITY OF THE COMPANY TO FACILITATE THE SALE
OR RESALE OF ANY OF THE SECURITIES, (II) SOLD, BID FOR, PURCHASED, OR, PAID ANY
COMPENSATION FOR SOLICITING PURCHASES OF, ANY OF THE SECURITIES, OR (III) PAID
OR AGREED TO PAY TO ANY PERSON ANY COMPENSATION FOR SOLICITING ANOTHER TO
PURCHASE ANY OTHER SECURITIES OF THE COMPANY, OTHER THAN, IN THE CASE OF CLAUSES
(II) AND (III), COMPENSATION PAID TO THE COMPANY'S PLACEMENT AGENT IN CONNECTION
WITH THE PLACEMENT OF THE SECURITIES.
3.2
REPRESENTATIONS AND WARRANTIES OF THE
PURCHASERS.
EACH PURCHASER HEREBY, FOR ITSELF AND FOR NO OTHER PURCHASER,
REPRESENTS AND WARRANTS AS OF THE DATE HEREOF AND AS OF THE CLOSING DATE TO THE
COMPANY AS FOLLOWS:
18
(A)
ORGANIZATION; AUTHORITY.
IF SUCH PURCHASER
IS AN ENTITY, SUCH PURCHASER IS AN ENTITY DULY ORGANIZED, VALIDLY EXISTING AND
IN GOOD STANDING UNDER THE LAWS OF THE JURISDICTION OF ITS ORGANIZATION WITH
FULL RIGHT, CORPORATE OR PARTNERSHIP POWER AND AUTHORITY TO ENTER INTO AND TO
CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THE TRANSACTION DOCUMENTS AND
OTHERWISE TO CARRY OUT ITS OBLIGATIONS HEREUNDER AND THEREUNDER. THE EXECUTION,
DELIVERY AND PERFORMANCE BY SUCH PURCHASER OF THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT HAVE BEEN DULY AUTHORIZED BY ANY NECESSARY CORPORATE OR SIMILAR
ACTION ON THE PART OF SUCH PURCHASER.
EACH TRANSACTION DOCUMENT TO WHICH