THE DEPOSIT/WITHDRAWAL AT
CUSTODIAN OR "DWAC" PROCESS.
4.
REPRESENTATIONS, WARRANTIES AND
COVENANTS OF THE INVESTOR.
4.1.
THE INVESTOR REPRESENTS AND WARRANTS TO THE
COMPANY THAT (A) THE INVESTOR IS KNOWLEDGEABLE, SOPHISTICATED AND EXPERIENCED IN
MAKING, AND IS QUALIFIED TO MAKE DECISIONS WITH RESPECT TO, INVESTMENTS IN
SHARES PRESENTING AN INVESTMENT DECISION LIKE THAT INVOLVED IN THE PURCHASE OF
THE SHARES AND WARRANT, INCLUDING INVESTMENTS IN SECURITIES ISSUED BY THE
COMPANY AND INVESTMENTS IN COMPARABLE COMPANIES, AND HAS REQUESTED, RECEIVED,
REVIEWED AND CONSIDERED ALL INFORMATION IT DEEMED RELEVANT IN MAKING AN INFORMED
DECISION TO PURCHASE THE SHARES AND WARRANT, AND (B) THE INVESTOR, IN CONNECTION
WITH ITS DECISION TO PURCHASE THE SHARES AND WARRANT, RELIED ONLY UPON THE
REGISTRATION STATEMENT, THE PROSPECTUS, THE COMPANY'S REPORTS ON FORMS 10-K,
10-Q, AND 8-K AS FILED BY THE COMPANY WITH THE COMMISSION, AND THE COMPANY'S
REPRESENTATIONS AND WARRANTIES SET FORTH HEREIN AND IN THE PLACEMENT AGREEMENT.
4.2.
THE INVESTOR ACKNOWLEDGES THAT THE PLACEMENT
AGENT IS NOT AUTHORIZED TO MAKE ANY REPRESENTATION OR USE ANY INFORMATION IN
CONNECTION WITH THE ISSUE, PLACEMENT, PURCHASE AND
5
sale of the Shares and the Warrants, except as set forth or incorporated by
reference in the Prospectus.
4.3.
THE INVESTOR REPRESENTS AND WARRANTS TO THE
COMPANY THAT (A) THE INVESTOR HAS FULL RIGHT, POWER, AUTHORITY AND CAPACITY TO
ENTER INTO THIS AGREEMENT AND TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED HEREBY
AND HAS TAKEN ALL NECESSARY ACTION TO AUTHORIZE THE EXECUTION, DELIVERY AND
PERFORMANCE OF THIS AGREEMENT, AND (B) THIS AGREEMENT CONSTITUTES A VALID AND
BINDING OBLIGATION OF THE INVESTOR ENFORCEABLE AGAINST THE INVESTOR IN
ACCORDANCE WITH ITS TERMS, EXCEPT AS ENFORCEABILITY MAY BE LIMITED BY APPLICABLE
BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM OR SIMILAR LAWS AFFECTING
CREDITORS' AND CONTRACTING PARTIES' RIGHTS GENERALLY AND EXCEPT AS
ENFORCEABILITY MAY BE SUBJECT TO GENERAL PRINCIPLES OF EQUITY (REGARDLESS OF
WHETHER SUCH ENFORCEABILITY IS CONSIDERED IN A PROCEEDING IN EQUITY OR AT LAW).
4.4.
THE INVESTOR UNDERSTANDS THAT NOTHING IN THIS
AGREEMENT OR ANY OTHER MATERIALS PRESENTED TO THE INVESTOR IN CONNECTION WITH
THE PURCHASE AND SALE OF THE SHARES AND THE WARRANTS CONSTITUTES LEGAL, TAX OR
INVESTMENT ADVICE.
THE INVESTOR HAS CONSULTED SUCH LEGAL, TAX AND INVESTMENT
ADVISORS AS IT, IN ITS SOLE DISCRETION, HAS DEEMED NECESSARY OR APPROPRIATE IN
CONNECTION WITH ITS PURCHASE OF THE SHARES AND WARRANT.
4.5.
THE INVESTOR REPRESENTS AND WARRANTS THAT IT HAS
NOT PURCHASED ANY SHARES OF COMMON STOCK, ENGAGED IN ANY SHORT SELLING OF THE
COMPANY'S SECURITIES, OR ESTABLISHED OR INCREASED ANY "PUT EQUIVALENT POSITION"
AS DEFINED IN RULE 16(A)-1(H) UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED (THE "EXCHANGE ACT"), WITH RESPECT TO THE COMMON STOCK (COLLECTIVELY, A
"SHORT SALE"), WITHIN THE THREE (3) MONTH PERIOD ENDING ON THE DATE OF THIS
AGREEMENT. THE INVESTOR AGREES THAT IT WILL NOT EFFECT ANY SHORT SALES UNTIL THE
PUBLIC ANNOUNCEMENT OF THE TERMS OF THIS AGREEMENT; PROVIDED, HOWEVER, THAT THE
COMPANY AGREES THAT IT WILL PUBLICLY ANNOUNCE SUCH TERMS ON OR BEFORE 9:00 AM
(EASTERN TIME) ON