ANY BLACKOUT SHARES, THE WARRANT AND THE WARRANT SHARES WHICH HAVE BEEN
REQUESTED BY THE INVESTOR.
THE INVESTOR HAS REVIEWED OR RECEIVED COPIES OF THE
COMMISSION DOCUMENTS.
THE INVESTOR AND ITS ADVISORS, IF ANY, HAVE BEEN AFFORDED
THE OPPORTUNITY TO ASK QUESTIONS OF THE COMPANY.
THE INVESTOR HAS SOUGHT SUCH
ACCOUNTING, LEGAL AND TAX ADVICE AS IT HAS CONSIDERED NECESSARY TO MAKE AN
INFORMED INVESTMENT DECISION WITH RESPECT TO ITS ACQUISITION OF THE SHARES, ANY
BLACKOUT SHARES, THE WARRANT AND THE WARRANT SHARES.
THE INVESTOR UNDERSTANDS
THAT IT (AND NOT THE COMPANY) SHALL BE RESPONSIBLE FOR ITS OWN TAX LIABILITIES
THAT MAY ARISE AS A RESULT OF THIS INVESTMENT OR THE TRANSACTIONS CONTEMPLATED
BY THIS AGREEMENT.
SECTION 5.6
TRADING RESTRICTIONS.
THE INVESTOR COVENANTS THAT DURING
THE COMMITMENT PERIOD, NEITHER THE INVESTOR NOR ANY OF ITS AFFILIATES NOR ANY
ENTITY MANAGED OR CONTROLLED BY THE INVESTOR WILL (I) ENTER INTO OR EXECUTE OR
CAUSE OR ASSIST ANY PERSON TO ENTER INTO OR EXECUTE ANY "SHORT SALE" (AS SUCH
TERM IS DEFINED IN RULE 200 OF REGULATION SHO, OR ANY SUCCESSOR REGULATION,
PROMULGATED BY THE COMMISSION UNDER THE EXCHANGE ACT) OF ANY SECURITIES OF THE
COMPANY OR (II) ENGAGE, THROUGH RELATED PARTIES OR OTHERWISE, IN ANY DERIVATIVE
TRANSACTION DIRECTLY RELATED TO SHARES OF COMMON STOCK (INCLUDING, WITHOUT
LIMITATION, THE PURCHASE OF ANY OPTION OR CONTRACT TO SELL) EXCEPT DURING THE
TERM OF A DRAW DOWN PRICING PERIOD WITH RESPECT TO SHARES THAT THE INVESTOR
PURCHASED PURSUANT TO THE DRAW DOWN PERTAINING TO SUCH DRAW DOWN PRICING PERIOD,
AND THAT THE INVESTOR AND ITS AFFILIATES SHALL COMPLY WITH ALL OTHER APPLICABLE
LAWS. SUBJECT TO CLAUSE (I) ABOVE, THE INVESTOR SHALL HAVE THE RIGHT DURING ANY
DRAW DOWN PRICING PERIOD TO SELL SHARES OF COMMON STOCK EQUAL IN NUMBER TO THE
AGGREGATE NUMBER OF THE SHARES PURCHASED PURSUANT TO THE DRAW DOWN PERTAINING TO
SUCH DRAW DOWN PRICING PERIOD.
SECTION 5.7
STATUTORY UNDERWRITER STATUS.
THE INVESTOR ACKNOWLEDGES
THAT, PURSUANT TO THE COMMISSION'S CURRENT INTERPRETATIONS OF THE SECURITIES
ACT, THE INVESTOR WILL BE DISCLOSED AS AN "UNDERWRITER" WITHIN THE MEANING OF
THE SECURITIES ACT IN THE REGISTRATION STATEMENT (AND
16
AMENDMENTS THERETO) AND IN ANY PROSPECTUS CONTAINED THEREIN TO THE EXTENT
REQUIRED BY APPLICABLE LAW AND TO THE EXTENT SUCH PROSPECTUS IS RELATED TO THE
RESALE OF REGISTRABLE SECURITIES.
SECTION 5.8
NOT AN AFFILIATE.
THE INVESTOR IS NOT AN OFFICER, DIRECTOR
OR "AFFILIATE" (AS DEFINED IN RULE 405 OF THE SECURITIES ACT) OF THE COMPANY.
SECTION 5.9
MANNER OF SALE.
AT NO TIME WAS THE INVESTOR PRESENTED WITH
OR SOLICITED BY OR THROUGH ANY LEAFLET, PUBLIC PROMOTIONAL MEETING, TELEVISION
ADVERTISEMENT OR ANY OTHER FORM OF GENERAL SOLICITATION OR ADVERTISING BY OR ON
BEHALF OF THE COMPANY.
SECTION 5.10
PROSPECTUS DELIVERY.
THE INVESTOR AGREES THAT UNLESS THE
SHARES, THE WARRANT SHARES OR ANY BLACKOUT SHARES ARE ELIGIBLE FOR RESALE
PURSUANT TO ALL THE CONDITIONS OF RULE 144, IT WILL RESELL THE SHARES, THE
WARRANT SHARES AND ANY BLACKOUT SHARES ONLY PURSUANT TO THE REGISTRATION
STATEMENT,