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) ANY PURCHASER, AND COUNTER-PARTIES IN "DERIVATIVE" TRANSACTIONS TO WHICH
ANY SUCH PURCHASER IS A PARTY, DIRECTLY OR INDIRECTLY, MAY PRESENTLY 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
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 UNDERLYING 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.
(JJ) 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 OF THE COMPANY 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.
19
3.2 REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS.
EACH PURCHASER, FOR
ITSELF AND FOR NO OTHER PURCHASER HEREBY, REPRESENTS AND WARRANTS AS OF THE DATE
HEREOF AND AS OF THE CLOSING DATE TO THE COMPANY AS FOLLOWS:
(A) ORGANIZATION; AUTHORITY.
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 AND DELIVERY OF THE TRANSACTION DOCUMENTS AND PERFORMANCE BY SUCH
PURCHASER OF THE TRANSACTIONS CONTEMPLATED BY THE TRANSACTION DOCUMENTS HAVE
BEEN DULY AUTHORIZED BY ALL NECESSARY CORPORATE OR SIMILAR ACTION ON THE PART OF
SUCH PURCHASER.
EACH TRANSACTION DOCUMENT TO WHICH IT IS A PARTY HAS BEEN DULY
EXECUTED BY SUCH PURCHASER, AND WHEN DELIVERED BY SUCH PURCHASER IN ACCORDANCE
WITH THE TERMS HEREOF, WILL CONSTITUTE THE VALID AND LEGALLY BINDING OBLIGATION
OF SUCH PURCHASER, ENFORCEABLE AGAINST IT IN ACCORDANCE WITH ITS TERMS, EXCEPT
(I) AS LIMITED BY GENERAL EQUITABLE PRINCIPLES AND APPLICABLE BANKRUPTCY,
INSOLVENCY, REORGANIZATION, MORATORIUM AND OTHER LAWS OF GENERAL