BROKER, FINDER OR INVESTMENT BANKER IS
ENTITLED TO ANY FINANCIAL ADVISORY, BROKERAGE, FINDER'S OR OTHER FEE OR
COMMISSION IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY BASED UPON ARRANGEMENTS MADE BY OR ON BEHALF OF THE COMPANY OR ANY
COMPANY SUBSIDIARY FOR WHICH THE INVESTOR COULD HAVE ANY LIABILITY.
ARTICLE IV
COVENANTS
SECTION 4.1
COMMERCIALLY REASONABLE EFFORTS.
SUBJECT TO THE TERMS AND
CONDITIONS OF THIS AGREEMENT, EACH OF THE PARTIES WILL USE ITS COMMERCIALLY
REASONABLE EFFORTS IN GOOD FAITH TO TAKE, OR CAUSE TO BE TAKEN, ALL ACTIONS, AND
TO DO, OR CAUSE TO BE DONE, ALL THINGS NECESSARY, PROPER OR DESIRABLE, OR
ADVISABLE UNDER APPLICABLE LAWS, SO AS TO PERMIT CONSUMMATION OF THE EXCHANGE AS
PROMPTLY AS PRACTICABLE AND OTHERWISE TO ENABLE CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED HEREBY AND SHALL USE COMMERCIALLY REASONABLE EFFORTS TO COOPERATE
WITH THE OTHER PARTY TO THAT END.
SECTION 4.2
EXPENSES.
IF REQUESTED BY THE INVESTOR, THE COMPANY SHALL PAY
ALL REASONABLE OUT OF POCKET AND DOCUMENTED COSTS AND EXPENSES ASSOCIATED WITH
THE EXCHANGE, INCLUDING, BUT NOT LIMITED TO, THE REASONABLE FEES, DISBURSEMENTS
AND OTHER CHARGES OF THE INVESTOR'S LEGAL COUNSEL AND FINANCIAL ADVISORS.
SECTION 4.3
EXCHANGE LISTING.
IF REQUESTED BY THE INVESTOR, THE COMPANY
SHALL, AT THE COMPANY'S EXPENSE, CAUSE THE CAPITAL SECURITIES AND THE AMENDED
WARRANT, TO THE EXTENT THE
-8-
CAPITAL SECURITIES AND THE AMENDED WARRANT COMPLY WITH APPLICABLE LISTING
REQUIREMENTS, TO BE LISTED ON THE NASDAQ GLOBAL SELECT MARKET OR OTHER NATIONAL
STOCK EXCHANGE, SUBJECT TO OFFICIAL NOTICE OF ISSUANCE, AND SHALL MAINTAIN SUCH
LISTING FOR SO LONG AS ANY COMMON STOCK IS LISTED ON SUCH EXCHANGE.
AT THE
INVESTOR'S REQUEST, THE COMPANY AGREES TO TAKE SUCH ACTION AS MAY BE NECESSARY
TO CHANGE THE MINIMUM DENOMINATIONS OF THE CAPITAL SECURITIES TO $25 OR SUCH
OTHER AMOUNT AS THE INVESTOR SHALL REASONABLY REQUEST.
AS SOON AS REASONABLY
PRACTICABLE FOLLOWING THE CLOSING, THE COMPANY SHALL, AT ITS EXPENSE, CAUSE THE
UNDERLYING COMMON SHARES AND THE WARRANT SHARES TO BE LISTED ON THE SAME
NATIONAL SECURITIES EXCHANGE ON WHICH THE COMMON STOCK IS LISTED, SUBJECT TO
OFFICIAL NOTICE OF ISSUANCE, AND SHALL MAINTAIN SUCH LISTING FOR SO LONG AS ANY
COMMON STOCK IS LISTED ON SUCH EXCHANGE.
SECTION 4.4
ACCESS, INFORMATION AND CONFIDENTIALITY.
(A)
FROM THE DATE HEREOF UNTIL THE DATE WHEN THE INVESTOR NO LONGER HOLDS
ANY DEBT OR EQUITY SECURITIES OF THE COMPANY OR AN AFFILIATE OF THE COMPANY
ACQUIRED PURSUANT TO THIS AGREEMENT OR THE AMENDED WARRANT, THE COMPANY WILL
PERMIT THE INVESTOR AND ITS AGENTS, CONSULTANTS, CONTRACTORS AND ADVISORS
(I) ACTING THROUGH THE COMPANY'S APPROPRIATE FEDERAL BANKING AGENCY, TO EXAMINE
THE CORPORATE BOOKS AND MAKE COPIES THEREOF AND TO DISCUSS THE AFFAIRS, FINANCES
AND ACCOUNTS OF THE COMPANY AND THE SUBSIDIARIES OF THE COMPANY (THE "COMPANY
SUBSIDIARIES") WITH THE PRINCIPAL OFFICERS OF THE COMPANY, ALL UPON REASONABLE
NOTICE AND AT SUCH REASONABLE TIMES AND AS OFTEN AS THE INVESTOR MAY REASONABLY
REQUEST AND (II) TO REVIEW ANY INFORMATION MATERIAL TO THE INVESTOR'S INVESTMENT
IN THE