Common use of Private Offerings Clause in Contracts

Private Offerings. No form of general solicitation or general advertising, including, but not limited to, advertisements, articles, notices or other communications, published in any newspaper, magazine or similar medium or broadcast over television or radio, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising, was used by the Company or any of its Subsidiaries or any of their respective representatives, or, to the Company's knowledge, any other Person acting on behalf of the Company or any of its Subsidiaries in connection with the offering of the Securities. Neither the Company nor any of its Subsidiaries nor any Person acting on the Company's or any such Subsidiaries' behalf, has directly or indirectly offered Securities for sale to, or sold or solicited any offer to buy any of the same from, or otherwise approached or negotiated in respect thereof with any Person or Persons other than the Purchasers and other investors who the Company reasonably believed had such knowledge and experience in financial and business matters that they were capable of evaluating the merits and risks of purchasing the Securities. The Company further represents to the Purchasers that, assuming the accuracy of the representations of the Purchasers as set forth in Section 6 hereof, neither the Company nor any of its Subsidiaries, nor any Person acting on the Company's or any such Subsidiary's behalf, as applicable, has taken or will take any action which would subject the issue and sale of the Securities to the provisions of Section 5 of the Securities Act, except as contemplated by the Transaction Documents. The Company and its Subsidiaries have not sold the Securities to anyone other than the Purchasers designated in this Agreement. No shares of Convertible Preferred Stock and no securities containing the same terms as the Warrants have been issued and sold by the Company or any of its Subsidiaries prior to the date hereof.

Private Offerings. No form of general solicitation or general advertising, advertising including, but not limited to, advertisements, articles, notices or other communications, published in any newspaper, magazine or similar medium or broadcast over television or radio, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising, was used by the Company or any of its Subsidiaries or any of their respective the Company's or such Subsidiary's representatives, or, to the Company's knowledge, any other Person acting on behalf of the Company or any of its Subsidiaries Subsidiaries, in connection with the offering of the SecuritiesSecurities being purchased under this Agreement or under any other Transaction Document. Neither None of the Company nor Company, any of its Subsidiaries nor or any Person acting on the Company's or any such Subsidiaries' behalf, Subsidiary's behalf has directly or indirectly offered Securities the Securities, or any part thereof or any other similar securities, for sale to, or sold or solicited any offer to buy any of the same from, or otherwise approached or negotiated in respect thereof with any Person or Persons other than the Purchasers and other investors who the Company reasonably believed had such knowledge and experience in financial and business matters that they were capable of evaluating the merits and risks of purchasing the Securities. The Company further represents to the Purchasers that, assuming the accuracy of the representations of the Purchasers as set forth in Section 6 hereof, neither none of the Company nor Company, any of its Subsidiaries, nor Subsidiaries or any Person acting on the Company's or any such Subsidiary's behalf, as applicable, behalf has taken or will take any action which would subject the issue and sale of the Securities being purchased hereunder or under any other Transaction Document to the provisions of Section 5 of the Securities Act, except as contemplated by the Transaction DocumentsRegistration Rights Agreement. The Company and its Subsidiaries have has not sold the Securities to anyone other than the Purchasers designated in this Agreement. No shares securities of Convertible Preferred Stock and no securities containing the same terms class or series as the Warrants Securities have been issued and sold by the Company or any of its Subsidiaries prior to the date hereof. Each Note and Preferred Stock certificate shall bear substantially the same legend set forth in Section 8.1 hereof, as applicable, for at least so long as such restrictions apply.

Private Offerings. No form of general solicitation or general advertising, advertising including, but not limited to, advertisements, articles, notices or other communications, published in any newspaper, magazine or similar medium or broadcast over television or radio, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising, was used by the Company or any of its Subsidiaries or any of their respective the Company's or such Subsidiary's representatives, or, to the knowledge of the Company's knowledge, any other Person acting on behalf of the Company or any of its Subsidiaries Subsidiaries, in connection with the offering of the SecuritiesShares being purchased under this Agreement or under any other Transaction Document. Neither the Company Company, nor any of its Subsidiaries nor any Person acting on the Company's or any such Subsidiaries' behalf, Subsidiary's behalf has directly or indirectly offered Securities the Shares, or any part thereof or any other similar securities or the securities being purchased under any Transaction Document, for sale to, or sold or solicited any offer to buy any of the same from, or otherwise approached or negotiated in respect thereof with any Person or Persons other than the Purchasers and other investors who the Company reasonably believed had such knowledge and experience in financial and business matters that they were capable of evaluating the merits and risks of purchasing the SecuritiesShares. The Company further represents to the Purchasers Purchaser that, assuming the accuracy of the representations of the Purchaser and the Other Purchasers as set forth in Section 6 5 hereof, neither the Company Company, nor any of its Subsidiaries, Subsidiaries nor any Person acting on the Company's or any such Subsidiary's behalf, as applicable, behalf has taken or will take any action which would subject the issue and sale of the Securities Shares or the securities being purchased under any Transaction Document to the provisions of Section 5 of the Securities Act, except as contemplated by the Transaction DocumentsRegistration Rights Agreement. The 4.12. Broker's or Finder's Commissions. In addition to and not in limitation of any other rights hereunder, the Company and its the Subsidiaries have not sold agree that they will indemnify and hold harmless the Securities Purchaser from and against any and all claims, demands or liabilities for broker's, finder's, placement agent's or other similar fees or commissions and any and all liabilities with respect to anyone other than the Purchasers designated in this Agreement. No shares of Convertible Preferred Stock any taxes (including interest and no securities containing the same terms as the Warrants penalties) payable or incurred or alleged to have been issued and sold incurred by the Company or any of its Subsidiaries prior or any Person acting or alleged to have been acting on the date hereofCompany's or such Subsidiary's behalf, in connection with this Agreement, the issuance or sale of the Shares, or any other transaction contemplated by any of the Transaction Documents. 4.13.

Private Offerings. No form of general solicitation or general advertising, advertising including, but not limited to, advertisements, articles, notices or other communications, published in any newspaper, magazine or similar medium or broadcast over television or radio, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising, was used by the Company or any of its Subsidiaries or any of their respective representatives, or, to the knowledge of the Company's knowledge, any other Person acting on behalf of the Company or any of its Subsidiaries in connection with the offering of the SecuritiesNotes and Warrants being purchased under this Agreement or under any other Transaction Document. Neither the Company nor or any of its Subsidiaries nor any Person acting on the Company's or any such Subsidiaries' behalf, as applicable, has directly or indirectly offered Securities the Notes or the Warrants, or any part thereof or any other similar securities or the securities being purchased under any other Transaction Document, for sale to, or sold or solicited any offer to buy any of the same from, or otherwise approached or negotiated in respect thereof with any Person or Persons other than the Purchasers and other investors who the Company reasonably believed had such knowledge and experience in financial and business matters that they were capable of evaluating the merits and risks of purchasing the SecuritiesNotes and the Warrants. The Company further represents to the Purchasers that, assuming the accuracy of the representations of the Purchasers as set forth in Section 6 5 hereof, neither the Company nor or any of its Subsidiaries, Subsidiaries nor any Person acting on the Company's or any such Subsidiary's Subsidiaries' behalf, as applicable, has taken or will take any action which would subject the issue and sale of the Securities Notes and the Warrants to the provisions of Section 5 of the Securities Act, except as contemplated by the Transaction DocumentsRegistration Rights Agreement. The Company and its Subsidiaries have not sold the Securities Notes or the Warrants to anyone other than the Purchasers designated in this Agreement. No shares securities of Convertible Preferred Stock and no securities containing the same terms class or series as any of the Notes or Warrants have been issued and sold by the Company or any of its Subsidiaries prior to the date hereofhereof other than issuances of Common Stock or Senior Indebtedness contemplated hereby or in any of the Transaction Documents and the granting of stock options to directors or employees.

Private Offerings. No form of general solicitation or general advertising, advertising including, but not limited to, advertisements, articles, notices or other communications, published in any newspaper, magazine or similar medium or broadcast over television or radio, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising, advertising was used by the Company any Issuer, or any of its Subsidiaries Subsidiaries, or any of their respective the representatives, or, to the Company's knowledgeknowledge of the Issuers, any other Person acting on behalf of the Company any Issuer, or any of its Subsidiaries their Subsidiaries, in connection with the offering of the SecuritiesPreferred Securities being purchased under this Agreement or under any other Transaction Document. Neither None of the Company nor any of its Subsidiaries Issuers nor any Person acting on the Company's or behalf of any such Subsidiaries' behalf, Issuer has directly or indirectly offered Securities the Preferred Securities, or any part thereof or any other similar securities or the securities being purchased under any other Transaction Document, for sale to, or sold or solicited any offer to buy any of the same from, or otherwise approached or negotiated in respect thereof with any Person or Persons other than the Purchasers and other investors who the Company Trust reasonably believed had such knowledge and experience in financial and business matters that they were capable of evaluating the merits and risks of purchasing the Preferred Securities. The Company Issuers further represents represent to the Purchasers Purchaser that, assuming the accuracy of the representations of the Purchasers Purchaser as set forth in Section 6 5 hereof, neither none of the Company nor any of its Subsidiaries, Issuers nor any Person acting on the Company's or behalf of any such Subsidiary's behalf, as applicable, Issuer has taken or will take any action which would subject the issue and sale of the Preferred Securities to the provisions of Section 5 of the Securities Act, except as contemplated by the Transaction DocumentsRegistration Rights Agreement. The Company and its Subsidiaries have Trust has not sold the Preferred Securities to anyone other than the Purchasers designated in this AgreementAgreement and the Other Securities Purchase Agreements. No shares securities of Convertible Preferred Stock and no securities containing the same terms class or series as the Warrants Preferred Securities have been issued and sold by the Company or any of its Subsidiaries Trust prior to the date hereof. Each Preferred Security Certificate shall bear substantially the same legend provided in Section 6.1 hereof as applicable, for at least so long as such restrictions apply.

Private Offerings. No form of general solicitation or general advertising, advertising including, but not limited to, advertisements, articles, notices or other communications, published in any newspaper, magazine or similar medium or broadcast over television or radio, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising, was used by the Company or any of its Subsidiaries or any of their respective the Company's or such Subsidiary's representatives, or, to the knowledge of the Company's knowledge, any other Person acting on behalf of the Company or any of its Subsidiaries Subsidiaries, in connection with the offering of the SecuritiesShares being purchased under this Agreement or under any other Transaction Document. Neither the Company nor Company, any of its Subsidiaries nor any Person acting on the Company's or any such Subsidiaries' behalf, Subsidiary's behalf has directly or indirectly offered Securities the Shares, or any part thereof or any other similar securities or the securities being purchased under any other Transaction Document, for sale to, or sold or solicited any offer to buy any of the same from, or otherwise approached or negotiated in respect thereof with any Person or Persons other than the Purchasers and other investors who the Company reasonably believed had has such knowledge and experience in financial and business matters that they were capable of evaluating the merits and risks of purchasing the SecuritiesShares. The Company further represents to the Purchasers Purchaser that, assuming the accuracy of the representations of the Purchasers Purchaser as set forth in Section 6 5 hereof, neither the Company nor Company, any of its Subsidiaries, Subsidiaries nor any Person acting on the Company's or any such Subsidiary's behalf, as applicable, behalf has taken or will take any action which would subject the issue and sale of the Securities Shares or the securities being purchased under any other Transaction Document to the provisions of Section 5 of the Securities Act, except as contemplated by the Transaction Documents. The Company and its Subsidiaries have not sold the Securities to anyone other than the Purchasers designated in this Registration Rights Agreement. No shares of Convertible Preferred Stock and no securities containing the same terms as the Warrants have been issued and sold by the Company or any of its Subsidiaries prior to the date hereof.