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.
(FF)
ACKNOWLEDGEMENT REGARDING PURCHASERS' TRADING ACTIVITY.
ANYTHING
IN THIS AGREEMENT OR ELSEWHERE HEREIN TO THE CONTRARY NOTWITHSTANDING (EXCEPT
FOR SECTION 4.13 HEREOF), IT IS UNDERSTOOD AND ACKNOWLEDGED BY THE COMPANY (I)
THAT NONE OF THE PURCHASERS HAVE BEEN ASKED TO AGREE, NOR HAS ANY PURCHASER
AGREED, TO HOLD THE SECURITIES FOR ANY SPECIFIED TERM; (II) THAT PAST OR FUTURE
OPEN MARKET OR OTHER TRANSACTIONS BY ANY PURCHASER, INCLUDING SHORT SALES, AND
SPECIFICALLY INCLUDING, WITHOUT LIMITATION, SHORT SALES OR "DERIVATIVE"
TRANSACTIONS EXECUTED IN COMPLIANCE WITH APPLICABLE FEDERAL LAW, MAY NEGATIVELY
IMPACT THE MARKET PRICE OF THE COMPANY'S PUBLICLY-TRADED SECURITIES; AND (III)
THAT EACH PURCHASER SHALL NOT BE DEEMED TO HAVE ANY AFFILIATION WITH OR CONTROL
OVER ANY ARM'S LENGTH, UNAFFILIATED, COUNTER-PARTY IN ANY "DERIVATIVE"
TRANSACTION. THE COMPANY FURTHER UNDERSTANDS AND ACKNOWLEDGES THAT, EXCEPT AS
SET FORTH IN SECTION 4.13, (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 WARRANT SHARES DELIVERABLE WITH RESPECT TO WARRANTS 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.
(GG)
MANIPULATION OF PRICE.
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, 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.
18
3.2
REPRESENTATIONS AND WARRANTIES OF THE SELLING STOCKHOLDERS.
EACH
SELLING STOCKHOLDER HEREBY, FOR ITSELF AND FOR NO OTHER SELLING STOCKHOLDER,
REPRESENTS AND WARRANTS AS OF THE DATE HEREOF AND AS OF THE CLOSING DATE TO THE
COMPANY AS FOLLOWS:
(A)
ORGANIZATION AND QUALIFICATION.
SUCH SELLING STOCKHOLDER, IF SUCH
SELLING STOCKHOLDER IS NOT A NATURAL PERSON, IS AN ENTITY DULY INCORPORATED OR
OTHERWISE ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE
JURISDICTION OF ITS INCORPORATION OR ORGANIZATION (AS APPLICABLE), WITH THE
REQUISITE POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND FULFILL ITS
OBLIGATIONS HEREUNDER.
(B)
AUTHORIZATION; ENFORCEMENT.
SUCH SELLING STOCKHOLDER HAS THE
LEGAL RIGHT AND POWER, AND ALL