BY APPLICABLE BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM OR
SIMILAR LAWS AFFECTING CREDITORS' AND CONTRACTING PARTIES' RIGHTS GENERALLY AND
EXCEPT AS ENFORCEABILITY MAY BE SUBJECT TO GENERAL PRINCIPLES OF EQUITY
(REGARDLESS OF WHETHER SUCH ENFORCEABILITY IS CONSIDERED IN A
PROCEEDING IN EQUITY OR AT LAW) AND EXCEPT AS THE INDEMNIFICATION AGREEMENTS OF
THE INVESTORS HEREIN MAY BE LEGALLY UNENFORCEABLE.
4.4
THE INVESTOR UNDERSTANDS THAT NOTHING IN
THIS AGREEMENT, THE PROSPECTUS OR ANY OTHER MATERIALS PRESENTED TO THE INVESTOR
IN CONNECTION WITH THE PURCHASE AND SALE OF THE UNITS CONSTITUTES LEGAL, TAX OR
INVESTMENT ADVICE.
THE INVESTOR HAS CONSULTED SUCH LEGAL, TAX AND INVESTMENT
ADVISORS AS IT, IN ITS SOLE DISCRETION, HAS DEEMED NECESSARY OR APPROPRIATE IN
CONNECTION WITH ITS PURCHASE OF UNITS.
4.5
EACH INVESTOR REPRESENTS, WARRANTS AND
AGREES THAT, SINCE THE EARLIER TO OCCUR OF (I) THE DATE ON WHICH A PLACEMENT
AGENT FIRST CONTACTED SUCH INVESTOR ABOUT THE OFFERING AND (II) THE DATE OF THIS
AGREEMENT, IT HAS NOT ENGAGED IN ANY TRANSACTIONS IN THE SECURITIES OF THE
COMPANY (INCLUDING, WITHOUT LIMITATION, ANY SHORT SALES INVOLVING THE COMPANY'S
SECURITIES).
EACH INVESTOR COVENANTS THAT IT WILL NOT ENGAGE IN ANY
TRANSACTIONS IN THE SECURITIES OF THE COMPANY (INCLUDING SHORT SALES) PRIOR TO
THE TIME THAT THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT HAVE BEEN
CONSUMMATED AND ARE PUBLICLY DISCLOSED.
EACH INVESTOR AGREES THAT IT WILL NOT
USE ANY OF THE UNITS ACQUIRED PURSUANT TO THIS AGREEMENT TO COVER ANY SHORT
POSITION IN THE COMMON STOCK IF DOING SO WOULD BE IN VIOLATION OF APPLICABLE
SECURITIES LAWS.
FOR PURPOSES HEREOF, "SHORT SALES" INCLUDE, WITHOUT
LIMITATION, ALL "SHORT SALES" AS DEFINED IN RULE 200 PROMULGATED UNDER
REGULATION SHO UNDER THE EXCHANGE ACT, WHETHER OR NOT AGAINST THE BOX, AND ALL
TYPES OF DIRECT AND INDIRECT STOCK PLEDGES, FORWARD SALES CONTRACTS, OPTIONS,
PUTS, CALLS, SHORT SALES, SWAPS, "PUT EQUIVALENT POSITIONS" (AS DEFINED IN
RULE 16A-1(H) UNDER THE EXCHANGE ACT) AND SIMILAR ARRANGEMENTS (INCLUDING ON A
TOTAL RETURN BASIS), AND SALES AND OTHER TRANSACTIONS THROUGH NON-US BROKER
DEALERS OR FOREIGN REGULATED BROKERS.
4.6
Each Investor acknowledges and agrees that
Investor, either alone or with a group of affiliated entities, will not, as the
result of purchasing Shares or Warrant Shares, acquire 20% or more of the
outstanding Common Stock or the voting power of the Company on a
post-transaction basis.
4.7
Each Investor acknowledges and agrees that
each Warrant, which shall be exercisable for five years after the Closing Date
at which the Warrant is first delivered to the Investor by the Company, may not
be exercised before the day that is six months after such Closing Date.
5.
SURVIVAL OF REPRESENTATIONS, WARRANTIES
AND AGREEMENTS; THIRD PARTY BENEFICIARY.
NOTWITHSTANDING ANY INVESTIGATION MADE
BY ANY PARTY TO THIS AGREEMENT OR BY THE PLACEMENT AGENT, ALL COVENANTS,
AGREEMENTS, REPRESENTATIONS AND WARRANTIES MADE BY THE COMPANY AND THE INVESTOR
HEREIN WILL SURVIVE THE EXECUTION OF THIS AGREEMENT, THE DELIVERY TO THE
INVESTOR OF THE UNITS BEING PURCHASED AND THE PAYMENT THEREFOR.
THE PLACEMENT
AGENT AND THE BENCHMARK COMPANY,