SHALL BE DEEMED A
REPRESENTATION OR WARRANTY BY SUCH INVESTOR TO HOLD THE SELLING STOCKHOLDER
SHARES, WARRANTS AND CONVERSION SHARES FOR ANY PERIOD OF TIME. SUCH INVESTOR IS
ACQUIRING THE SELLING STOCKHOLDER SHARES, WARRANTS AND CONVERSION SHARES
HEREUNDER IN THE ORDINARY COURSE OF ITS BUSINESS. SUCH INVESTOR DOES NOT HAVE
ANY AGREEMENT OR UNDERSTANDING, DIRECTLY OR INDIRECTLY, WITH ANY PERSON TO
DISTRIBUTE ANY OF THE SELLING STOCKHOLDER SHARES.
(C)
INVESTOR STATUS.
AT THE TIME SUCH INVESTOR WAS OFFERED THE
SELLING STOCKHOLDER SHARES AND WARRANTS, IT WAS, AND AT THE DATE HEREOF IT IS,
AN "ACCREDITED INVESTOR" AS DEFINED IN RULE 501(A) UNDER THE SECURITIES ACT.
SUCH INVESTOR IS NOT A REGISTERED BROKER-DEALER UNDER SECTION 15 OF THE EXCHANGE
ACT.
(D)
GENERAL SOLICITATION.
SUCH INVESTOR IS NOT PURCHASING THE
SELLING STOCKHOLDER SHARES AND WARRANTS AS A RESULT OF ANY ADVERTISEMENT,
ARTICLE, NOTICE OR OTHER COMMUNICATION REGARDING THE SELLING STOCKHOLDER SHARES
AND WARRANTS PUBLISHED IN ANY NEWSPAPER, MAGAZINE OR SIMILAR MEDIA OR BROADCAST
OVER TELEVISION OR RADIO OR PRESENTED AT ANY SEMINAR OR ANY OTHER GENERAL
SOLICITATION OR GENERAL ADVERTISEMENT.
(E)
CERTAIN TRADING ACTIVITIES.
SUCH INVESTOR HAS NOT DIRECTLY OR
INDIRECTLY, NOR HAS ANY PERSON ACTING ON BEHALF OF OR PURSUANT TO ANY
UNDERSTANDING WITH SUCH INVESTOR, ENGAGED IN ANY TRANSACTIONS IN THE SECURITIES
OF THE COMPANY (INCLUDING, WITHOUT LIMITATIONS, ANY SHORT SALES INVOLVING THE
COMPANY'S SECURITIES) SINCE THE TIME THAT SUCH INVESTOR WAS FIRST CONTACTED BY
THE COMPANY OR ROTH CAPITAL PARTNERS, LLC REGARDING THE ACQUISITION OF SELLING
STOCKHOLDER SHARES AND WARRANTS CONTEMPLATED BY THIS AGREEMENT. SUCH INVESTOR
COVENANTS THAT NEITHER IT NOR ANY PERSON ACTING ON ITS BEHALF OR PURSUANT TO ANY
UNDERSTANDING WITH IT WILL ENGAGE IN ANY TRANSACTIONS IN THE SECURITIES OF THE
COMPANY (INCLUDING SHORT SALES) PRIOR TO THE TIME THAT THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT ARE PUBLICLY DISCLOSED.
(F)
INDEPENDENT INVESTMENT DECISION.
SUCH INVESTOR HAS
INDEPENDENTLY EVALUATED THE MERITS OF ITS DECISION TO PURCHASE THE SELLING
STOCKHOLDER SHARES AND WARRANTS PURSUANT TO THE TRANSACTION DOCUMENTS, AND SUCH
INVESTOR CONFIRMS THAT IT HAS NOT RELIED ON THE ADVICE OF ANY OTHER INVESTOR'S
BUSINESS AND/OR LEGAL COUNSEL IN MAKING SUCH DECISION. SUCH INVESTOR HAS NOT
RELIED ON THE BUSINESS OR LEGAL ADVICE OF ROTH CAPITAL PARTNERS, LLC OR ANY OF
ITS
9
agents, counsel or Affiliates in making its investment decision hereunder, and
confirms that none of such Persons has made any representations or warranties to
such Investor in connection with the transactions contemplated by the
Transaction Documents.
3.3.
REPRESENTATIONS AND WARRANTIES OF THE SELLING STOCKHOLDERS.
EACH
SELLING STOCKHOLDER FOR ITSELF AND NO OTHER SELLING STOCKHOLDER HEREBY MAKES THE
FOLLOWING REPRESENTATIONS AND WARRANTIES TO EACH INVESTOR:
(A)
ENFORCEMENT.
THIS AGREEMENT HAS BEEN DULY EXECUTED AND DELIVERED
BY SUCH SELLING STOCKHOLDER AND CONSTITUTES THE VALID AND BINDING OBLIGATION OF
SUCH SELLING STOCKHOLDER, ENFORCEABLE AGAINST IT IN ACCORDANCE WITH ITS TERMS
EXCEPT AS SUCH ENFORCEABILITY MAY BE LIMITED BY APPLICABLE BANKRUPTCY,
INSOLVENCY, REORGANIZATION, MORATORIUM, LIQUIDATION OR SIMILAR LAWS RELATING TO,
OR AFFECTING GENERALLY THE ENFORCEMENT OF, CREDITORS' RIGHTS