SUCH TRANSACTION DESCRIBED IN CLAUSE (I) OR (II) ABOVE IS TO
BE SETTLED BY DELIVERY OF COMMON STOCK OR SUCH OTHER SECURITIES, IN CASH OR
OTHERWISE. THE FOREGOING SENTENCE SHALL NOT APPLY TO (1) THE SHARES TO BE SOLD
HEREUNDER OR (2) TRANSACTIONS RELATING TO SHARES OF COMMON STOCK OR OTHER
SECURITIES ACQUIRED IN OPEN MARKET TRANSACTIONS AFTER THE COMPLETION OF THE SALE
OF SHARES SOLD HEREUNDER OR (3) THE ISSUANCE BY THE COMPANY OF SHARES OF COMMON
STOCK TO BE USED IN THE CONTEXT OF STRATEGIC INVESTMENTS OR ACQUISITIONS OR
(4) (I) THE ISSUANCE BY THE COMPANY OF SHARES OF COMMON STOCK UPON THE EXERCISE
OF AN OPTION OR A WARRANT OR THE CONVERSION OF A SECURITY OUTSTANDING ON THE
DATE HEREOF; AND (II) THE ISSUANCE BY THE COMPANY OF SHARES OR OPTIONS TO
PURCHASE SHARES OF COMMON STOCK, AND THE ISSUANCE OF SHARES UPON THE EXERCISE OF
SUCH OPTIONS, THAT ARE ELIGIBLE FOR ISSUANCE UNDER THE COMPANY'S 1996, 2002 AND
2006 EQUITY INCENTIVE PLANS, AS AMENDED, ON THE CLOSING DATE (AS DEFINED IN
SECTION 3 HEREOF). NOTHING CONTAINED IN THIS AGREEMENT SHALL BE CONSTRUED TO
PREVENT THE COMPANY FROM FILING WITH THE COMMISSION A UNIVERSAL SHELF
REGISTRATION STATEMENT ON FORM S-3 FROM THE 30TH DAY AFTER THE DATE OF THE TIME
OF SALE PROSPECTUS; AND
(XI)
TO APPLY THE NET PROCEEDS FROM THE SALE OF THE SHARES BEING SOLD
BY THE COMPANY AS SET FORTH IN THE PROSPECTUS.
(B)
EACH PLACEMENT AGENT AGREES THAT IT SHALL NOT INCLUDE ANY "ISSUER
INFORMATION" (AS DEFINED IN RULE 433) IN ANY "FREE WRITING PROSPECTUS" (AS
DEFINED IN RULE 405) USED OR REFERRED TO BY SUCH PLACEMENT AGENT WITHOUT THE
PRIOR WRITTEN CONSENT OF THE COMPANY (ANY SUCH ISSUER INFORMATION WITH RESPECT
TO WHOSE USE THE COMPANY HAS GIVEN ITS WRITTEN CONSENT, "PERMITTED ISSUER
INFORMATION"); PROVIDED THAT (I) NO SUCH CONSENT SHALL BE REQUIRED WITH RESPECT
TO ANY SUCH ISSUER INFORMATION CONTAINED IN ANY DOCUMENT FILED BY THE COMPANY
WITH THE COMMISSION PRIOR TO THE USE OF SUCH FREE WRITING PROSPECTUS AND
(II) "ISSUER INFORMATION," AS USED IN THIS SECTION 4(B), SHALL NOT BE DEEMED TO
INCLUDE INFORMATION PREPARED BY OR ON BEHALF OF A PLACEMENT AGENT ON THE BASIS
OF OR DERIVED FROM ISSUER INFORMATION.
11
5.
EXPENSES. THE COMPANY AGREES, WHETHER OR NOT THE TRANSACTIONS
CONTEMPLATED IN THIS AGREEMENT ARE CONSUMMATED OR THIS AGREEMENT IS TERMINATED,
TO PAY OR CAUSE TO BE PAID ALL EXPENSES INCIDENT TO THE PERFORMANCE OF ITS
OBLIGATIONS UNDER THIS AGREEMENT, INCLUDING: (I) THE FEES, DISBURSEMENTS AND
EXPENSES OF THE COMPANY'S COUNSEL AND THE COMPANY'S ACCOUNTANTS IN CONNECTION
WITH THE REGISTRATION AND DELIVERY OF THE SHARES UNDER THE SECURITIES ACT AND
ALL OTHER FEES OR EXPENSES IN CONNECTION WITH THE PREPARATION AND FILING OF THE
REGISTRATION STATEMENT, ANY PRELIMINARY PROSPECTUS, THE TIME OF SALE PROSPECTUS,
THE PROSPECTUS, ANY FREE WRITING PROSPECTUS PREPARED BY OR ON BEHALF OF, USED
BY, OR REFERRED TO BY THE COMPANY AND AMENDMENTS AND SUPPLEMENTS TO ANY OF THE
FOREGOING, INCLUDING