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 SECURITIES ARE BEING DETERMINED, AND (Z) 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.
(Y)
REGULATION M COMPLIANCE.
THE COMPANY HAS
NOT, AND TO ITS ACTUAL 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) DURING THE TIME THAT SUCH ACTIVITY WOULD BE PROHIBITED
UNDER REGULATION M AS A RESULT OF THE ISSUANCE AND SALE OF THE SECURITIES
CONTEMPLATED HEREBY, 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.
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EACH PURCHASER ACKNOWLEDGES AND AGREES THAT THE COMPANY DOES NOT MAKE AND HAS
NOT MADE ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE TRANSACTIONS
CONTEMPLATED HEREBY OTHER THAN THOSE SPECIFICALLY SET FORTH IN THIS SECTION 3.1.
3.2
REPRESENTATIONS AND WARRANTIES OF THE
PURCHASERS.
EACH PURCHASER, FOR ITSELF AND FOR NO OTHER PURCHASER, HEREBY
REPRESENTS AND WARRANTS TO THE COMPANY AS OF THE DATE HEREOF:
(A)
ORGANIZATION; AUTHORITY.
SUCH PURCHASER IS
EITHER AN INDIVIDUAL OR 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 THIS AGREEMENT AND OTHERWISE TO CARRY OUT ITS
OBLIGATIONS HEREUNDER AND THEREUNDER. THE EXECUTION AND DELIVERY OF THIS
AGREEMENT AND PERFORMANCE BY SUCH PURCHASER OF THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT HAVE BEEN DULY AUTHORIZED BY ALL NECESSARY CORPORATE,
PARTNERSHIP, LIMITED LIABILITY COMPANY OR SIMILAR ACTION, AS APPLICABLE, 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, WILL CONSTITUTE THE VALID AND LEGALLY BINDING
OBLIGATION OF SUCH PURCHASER, ENFORCEABLE AGAINST IT IN ACCORDANCE WITH ITS
TERMS, EXCEPT: (I) AS LIMITED BY 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