CONTEMPLATED BY THE
TRANSACTION DOCUMENTS, THE COMPANY CONFIRMS THAT NEITHER IT NOR ANY OTHER PERSON
ACTING ON ITS BEHALF HAS PROVIDED ANY OF THE PURCHASERS OR THEIR AGENTS OR
COUNSEL WITH ANY INFORMATION OTHER THAN THE SEC REPORTS, THE PROSPECTUS, THE
PROSPECTUS SUPPLEMENT AND ANY FREE WRITING PROSPECTUS PROVIDED TO THE
PURCHASERS.
THE COMPANY UNDERSTANDS AND CONFIRMS THAT THE PURCHASERS WILL RELY
ON THE FOREGOING REPRESENTATION IN EFFECTING TRANSACTIONS IN SECURITIES OF THE
COMPANY.
(V)
NO INTEGRATED OFFERING. ASSUMING THE
ACCURACY OF THE PURCHASERS' REPRESENTATIONS AND WARRANTIES SET FORTH IN
SECTION 3.2, NEITHER THE COMPANY, NOR ANY OF ITS SUBSIDIARIES, NOR ANY PERSON
ACTING ON ITS OR THEIR BEHALF HAS, DIRECTLY OR INDIRECTLY, MADE ANY OFFERS OR
SALES OF ANY SECURITY OR SOLICITED ANY OFFERS TO BUY ANY SECURITY, UNDER
CIRCUMSTANCES THAT WOULD CAUSE THIS OFFERING OF THE SECURITIES TO BE INTEGRATED
WITH PRIOR OFFERINGS BY THE COMPANY FOR PURPOSES OF ANY APPLICABLE SHAREHOLDER
APPROVAL PROVISIONS OF THE TRADING MARKET ON WHICH ANY OF THE SECURITIES OF THE
COMPANY ARE LISTED OR DESIGNATED.
12
(W)
ACKNOWLEDGMENT REGARDING PURCHASERS' PURCHASE
OF SECURITIES.
THE COMPANY ACKNOWLEDGES AND AGREES THAT EACH OF THE PURCHASERS
IS ACTING SOLELY IN THE CAPACITY OF AN ARM'S LENGTH PURCHASER WITH RESPECT TO
THE TRANSACTION DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED THEREBY.
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 THE
TRANSACTION DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED THEREBY AND NO ADVICE
HAS BEEN GIVEN BY ANY PURCHASER OR ANY OF THEIR RESPECTIVE REPRESENTATIVES OR
AGENTS IN CONNECTION WITH THE TRANSACTION DOCUMENTS.
THE COMPANY FURTHER
REPRESENTS TO EACH PURCHASER THAT THE COMPANY'S DECISION TO ENTER INTO THIS
AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS HAS BEEN BASED SOLELY ON THE
INDEPENDENT EVALUATION OF THE TRANSACTIONS CONTEMPLATED HEREBY BY THE COMPANY
AND ITS REPRESENTATIVES.
(X)
ACKNOWLEDGEMENT REGARDING PURCHASER'S
TRADING ACTIVITY.
ANYTHING IN THIS AGREEMENT OR ELSEWHERE HEREIN TO THE
CONTRARY NOTWITHSTANDING (EXCEPT FOR SECTIONS 3.2(G) AND 4.10 HEREOF), IT IS
UNDERSTOOD AND ACKNOWLEDGED BY THE COMPANY THAT: (I) NONE OF THE PURCHASERS HAVE
BEEN ASKED BY THE COMPANY 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
SECURITIES FOR ANY SPECIFIED TERM; (II) PAST OR FUTURE OPEN MARKET OR OTHER
TRANSACTIONS BY ANY PURCHASER, SPECIFICALLY INCLUDING, WITHOUT LIMITATION, SHORT
SALES OR "DERIVATIVE" TRANSACTIONS, BEFORE OR AFTER THE CLOSING, MAY NEGATIVELY
IMPACT THE MARKET PRICE OF THE COMPANY'S PUBLICLY TRADED SECURITIES; (III) ANY
PURCHASER, AND COUNTERPARTIES 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) EACH PURCHASER SHALL NOT BE DEEMED TO
HAVE ANY AFFILIATION WITH OR CONTROL OVER ANY ARM'S LENGTH COUNTERPARTY IN ANY
"DERIVATIVE" TRANSACTION.
THE COMPANY FURTHER UNDERSTANDS AND ACKNOWLEDGES THAT
(Y) ONE OR MORE PURCHASERS MAY ENGAGE IN