PUBLICLY-TRADED SECURITIES; (III) THAT ANY PURCHASER, AND COUNTER
PARTIES IN "DERIVATIVE" TRANSACTIONS TO WHICH ANY SUCH PURCHASER IS A PARTY,
DIRECTLY OR INDIRECTLY, PRESENTLY MAY HAVE A "SHORT" POSITION IN THE COMMON
STOCK, AND (IV) THAT 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)
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 (OTHER THAN FOR THE PLACEMENT
AGENT'S PLACEMENT 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.
3.2
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS.
EACH
PURCHASER HEREBY, FOR ITSELF AND FOR NO OTHER PURCHASER, 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, DELIVERY AND PERFORMANCE BY SUCH PURCHASER OF THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT 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 AND THEREOF, WILL CONSTITUTE THE VALID AND LEGALLY BINDING OBLIGATION OF
SUCH PURCHASER, ENFORCEABLE AGAINST IT IN ACCORDANCE WITH ITS TERMS, EXCEPT (I)
AS LIMITED BY
19
GENERAL EQUITABLE PRINCIPLES AND APPLICABLE BANKRUPTCY, INSOLVENCY,
REORGANIZATION, MORATORIUM AND OTHER LAWS OF GENERAL APPLICATION AFFECTING
ENFORCEMENT OF CREDITORS' RIGHTS GENERALLY, (II) AS LIMITED BY LAWS RELATING TO
THE AVAILABILITY OF SPECIFIC PERFORMANCE, INJUNCTIVE RELIEF OR OTHER EQUITABLE
REMEDIES AND (III) INSOFAR AS INDEMNIFICATION AND CONTRIBUTION PROVISIONS MAY BE
LIMITED BY APPLICABLE LAW.
(B)