DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED HEREBY.
THE COMPANY FURTHER ACKNOWLEDGES THAT NO PURCHASER IS ACTING AS A FINANCIAL
ADVISOR OR FIDUCIARY OF THE COMPANY (OR IN ANY SIMILAR CAPACITY) WITH RESPECT TO
THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY AND ANY ADVICE GIVEN BY
ANY PURCHASER OR ANY OF THEIR RESPECTIVE REPRESENTATIVES OR AGENTS IN CONNECTION
WITH THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY IS MERELY
INCIDENTAL TO THE PURCHASERS' PURCHASE OF THE SHARES.
THE COMPANY FURTHER
REPRESENTS TO EACH PURCHASER THAT THE COMPANY'S DECISION TO ENTER INTO THIS
AGREEMENT HAS BEEN BASED SOLELY ON THE INDEPENDENT EVALUATION OF THE
TRANSACTIONS CONTEMPLATED HEREBY BY THE COMPANY AND ITS REPRESENTATIVES.
(JJ)
ACKNOWLEDGEMENT REGARDING PURCHASERS'
TRADING ACTIVITY.
ANYTHING IN THIS AGREEMENT OR ELSEWHERE HEREIN TO THE
CONTRARY NOTWITHSTANDING (EXCEPT FOR SECTION 4.14 AND SECTION 3.2(F) HEREOF), IT
IS UNDERSTOOD AND AGREED BY THE COMPANY (I) THAT NONE OF THE PURCHASERS HAVE
BEEN ASKED TO AGREE, NOR 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 SHARES 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
16
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 SHARES ARE OUTSTANDING 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.
(KK)
MANIPULATION OF PRICE.
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 SHARES (OTHER THAN FOR THE
PLACEMENT AGENT'S PLACEMENT 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.
3.2
REPRESENTATIONS AND WARRANTIES OF THE
PURCHASERS.
EACH PURCHASER HEREBY, FOR ITSELF AND FOR NO OTHER PURCHASER,