in connection with due diligence efforts, the negotiation and
preparation of the Transaction Documents and undertaking of the transactions
contemplated by the Transaction Documents (including out-of-pocket due diligence
expenses and professional fees incurred by or on behalf of the Investor or its
Affiliates in connection with the transactions contemplated hereby, but
excluding the purchase or exercise price for any of the Securities) in an amount
equal to $[·], whether or not incurred.](5)
The Company shall be responsible
for all closing and annual administrative fees and expenses (including all costs
incurred to register the Registrable Securities and to obtain stockholder
approval of the Stockholder Proposals), the fees and expenses of any Company
advisors (including Company counsel and other professional fees), SEC
registration fees and related expenses, and fees and expenses of any broker or
finders for which the Company is responsible.
The Company shall pay its sole
placement agent, Sandler O'Neill + Partners,
for the placement of all Preferred
Stock and Warrants issued on the date hereof an amount equal to $7.5 million, of
which $5 million will be due and payable at Closing and the remaining $2.5
million will be due and payable immediately upon approval of the Stockholder
Proposals.
Other than as set forth in this Section 3.2 and Section 4.10(b),
each of the parties will bear and pay all other costs and expenses incurred by
it or on its behalf in connection with the transactions contemplated under the
Transaction Documents.
3.3
[ACCESS, INFORMATION AND CONFIDENTIALITY.
(A)
FROM THE DATE OF THIS AGREEMENT, UNTIL THE DATE WHEN THE SHARES OF
COMMON STOCK OWNED BY THE INVESTOR IN THE AGGREGATE REPRESENT LESS THAN 4.9% OF
ALL OF THE OUTSTANDING COMMON SHARES (COUNTING FOR SUCH PURPOSES ALL SHARES OF
COMMON STOCK INTO OR FOR WHICH THE SECURITIES OWNED BY THE INVESTOR ARE DIRECTLY
OR INDIRECTLY CONVERTIBLE OR EXERCISABLE[,WHICH FOR THE AVOIDANCE OF DOUBT SHALL
INCLUDE ANY SECURITIES OR ANY SHARES OF SERIES B PREFERRED STOCK HELD BY THE
INVESTOR](6) AND EXCLUDING AS SHARES OWNED AND OUTSTANDING ALL COMMON SHARES
ISSUED BY THE COMPANY AFTER THE CLOSING DATE OTHER THAN AS CONTEMPLATED BY THIS
AGREEMENT AND THE SECURITIES), THE COMPANY WILL ENSURE THAT UPON REASONABLE
NOTICE, THE COMPANY AND ITS SUBSIDIARIES WILL AFFORD TO THE INVESTOR AND ITS
REPRESENTATIVES (INCLUDING OFFICERS AND EMPLOYEES OF THE INVESTOR, AND COUNSEL,
ACCOUNTANTS AND OTHER PROFESSIONALS RETAINED BY THE INVESTOR) (I) SUCH ACCESS
DURING NORMAL BUSINESS HOURS TO ITS BOOKS, RECORDS (EXCLUDING TAX RETURNS AND
ASSOCIATED WORK PAPERS), PROPERTIES AND PERSONNEL AND TO SUCH OTHER INFORMATION
AS THE INVESTOR MAY REASONABLY REQUEST [AND (II) REASONABLE OPPORTUNITIES TO
ROUTINELY CONSULT WITH AND ADVISE THE MANAGEMENT OF THE COMPANY AND ITS
SUBSIDIARIES, ON MATTERS RELATING TO THE OPERATION OF THE COMPANY.
THE COMPANY
AGREES TO CONSIDER, IN GOOD FAITH, THE RECOMMENDATIONS OF THE INVESTOR OR ITS
DESIGNATED REPRESENTATIVE IN CONNECTION WITH THE MATTERS ON WHICH IT IS
CONSULTED AS DESCRIBED ABOVE, RECOGNIZING THAT THE ULTIMATE DISCRETION WITH
RESPECT TO ALL SUCH MATTERS SHALL BE RETAINED BY THE COMPANY.](7)