PURCHASER 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.
(HH)
ACKNOWLEDGEMENT REGARDING PURCHASER'S TRADING ACTIVITY.
ANYTHING IN
THIS AGREEMENT OR ELSEWHERE HEREIN TO THE CONTRARY NOTWITHSTANDING (EXCEPT FOR
SECTIONS 3.2(F) AND 4.12 HEREOF), IT IS UNDERSTOOD AND ACKNOWLEDGED BY THE
COMPANY (I) THAT NONE OF THE PURCHASERS HAVE BEEN ASKED BY THE COMPANY TO AGREE,
NOR HAS ANY PURCHASER AGREED, TO DESIST FROM PURCHASING OR SELLING, LONG AND/OR
SHORT, SECURITIES OF THE
17
COMPANY, OR "DERIVATIVE" SECURITIES BASED ON SECURITIES ISSUED BY THE COMPANY OR
TO HOLD THE SECURITIES FOR ANY SPECIFIED TERM; (II) THAT PAST OR FUTURE OPEN
MARKET OR OTHER TRANSACTIONS BY ANY PURCHASER, SPECIFICALLY INCLUDING, WITHOUT
LIMITATION, SHORT SALES OR "DERIVATIVE" TRANSACTIONS, BEFORE OR AFTER THE
CLOSING OF THIS OR FUTURE PRIVATE PLACEMENT TRANSACTIONS, MAY NEGATIVELY IMPACT
THE MARKET PRICE OF THE COMPANY'S 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 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.
(II)
REGULATION M COMPLIANCE.
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
AGENTS' 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, 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.
(JJ)
FDA.
AS TO EACH PRODUCT SUBJECT TO THE JURISDICTION OF THE U.S.
FOOD AND DRUG ADMINISTRATION ("FDA") UNDER THE FEDERAL FOOD, DRUG AND COSMETIC
ACT, AS AMENDED, AND THE REGULATIONS THEREUNDER ("FDCA") THAT IS MANUFACTURED,
PACKAGED, LABELED, TESTED, DISTRIBUTED, SOLD, AND/OR MARKETED BY THE COMPANY OR
ANY OF ITS SUBSIDIARIES (EACH SUCH PRODUCT, A "PHARMACEUTICAL PRODUCT"), SUCH
PHARMACEUTICAL PRODUCT IS, TO THE KNOWLEDGE OF THE COMPANY, BEING MANUFACTURED,
PACKAGED,