BY REFERENCE IN SUCH PROSPECTUS.
(D)
ALL FEES AND EXPENSES ASSOCIATED WITH THE REGISTRATION OF THE
REGISTRABLE SECURITIES PURSUANT TO THE REGISTRATION STATEMENT (INCLUDING,
WITHOUT LIMITATION, THE COSTS OF PREPARING, FILING, AMENDING AND SUPPLEMENTING
THE REGISTRATION STATEMENT AND THE RELATED PROSPECTUS, CAUSING AND MAINTAINING
THE EFFECTIVENESS OF THE REGISTRATION STATEMENT AND THE RELATED PROSPECTUS AND
ANY QUALIFICATION OF THE REGISTRABLE SECURITIES, PRINTERS' FEES, ACCOUNTING
FEES, FEES AND DISBURSEMENTS OF COUNSEL TO THE COMPANY AND OTHER CUSTOMARY AND
REASONABLY RELATED EXPENSES) SHALL BE BORNE BY THE COMPANY (EXCLUSIVE OF ANY
BROKERAGE FEES, UNDERWRITING DISCOUNTS AND COMMISSIONS).
IN ADDITION, THE
COMPANY ALSO SHALL PAY THE REASONABLE FEES AND EXPENSE OF ONE SPECIAL COUNSEL TO
THE MDS PARTIES.
(E)
WITH A VIEW TO MAKING AVAILABLE TO THE PURCHASERS THE BENEFITS OF
RULE 144 PROMULGATED UNDER THE SECURITIES ACT ("RULE 144") AND ANY OTHER RULE OR
REGULATION OF THE SEC THAT MAY AT ANY TIME PERMIT A PURCHASER TO SELL THE
REGISTRABLE SECURITIES TO THE PUBLIC WITHOUT REGISTRATION OR PURSUANT TO
REGISTRATION, THE COMPANY HEREBY COVENANTS AND AGREES TO:
(I)
MAKE AND KEEP PUBLIC INFORMATION REGARDING THE COMPANY AVAILABLE,
AS THOSE TERMS ARE UNDERSTOOD AND DEFINED IN RULE 144, AT ALL TIMES UNTIL THE
EARLIER OF (A) THE SECOND ANNIVERSARY OF THE CLOSING DATE OR (B) SUCH DATE AS
ALL REGISTRABLE SECURITIES (INCLUDING, WITHOUT LIMITATION, ALL WARRANT SHARES)
SHALL HAVE BEEN RESOLD;
(II)
FILE WITH THE SEC IN A TIMELY MANNER ALL REPORTS AND OTHER
DOCUMENTS REQUIRED OF THE COMPANY UNDER THE EXCHANGE ACT, OR, IF THE COMPANY IS
NOT THEN SUBJECT TO SECTION 13(A) OR 15(D) OF THE EXCHANGE ACT, WHICH IT WOULD
HAVE BEEN REQUIRED TO FILE WERE IT SO SUBJECT; AND
(III)
FURNISH TO ANY PURCHASER UPON REQUEST, AS LONG AS THE PURCHASER
OWNS ANY REGISTRABLE SECURITIES, (A) A WRITTEN CERTIFICATION BY THE COMPANY THAT
IT TIMELY HAS COMPLIED WITH ALL OF THE REPORTING REQUIREMENTS OF THE EXCHANGE
ACT APPLICABLE TO THE COMPANY AND UPON WHICH RULE 144 IS CONDITIONED, (B) A COPY
OF THE MOST RECENT ANNUAL AND QUARTERLY REPORT OF THE COMPANY, AND (C) SUCH
OTHER INFORMATION AND SUCH OTHER REPORTS OR DOCUMENTS AS REASONABLY MAY BE
REQUESTED IN ORDER TO AVAIL ANY PURCHASER OF ANY RULE OR REGULATION OF THE SEC
THAT PERMITS THE SALE, TRANSFER OR OTHER DISPOSITION OF ANY REGISTRABLE
SECURITIES WITHOUT REGISTRATION UNDER THE SECURITIES ACT.
25
(F)
IF THE REGISTRATION STATEMENT:
(I)
IS NOT SUBJECT TO SEC REVIEW AND THE REGISTRATION STATEMENT IS
NOT DECLARED EFFECTIVE BY THE SEC WITHIN 90 DAYS AFTER THE CLOSING DATE (SUBJECT
TO EXTENSION AS PROVIDED IN THE LAST SENTENCE OF THIS SUBPARAGRAPH) FOR ANY
REASON WHATSOEVER; OR
(II)
IS SUBJECT TO SEC REVIEW AND THE COMPANY FAILS FOR ANY REASON TO
RESPOND TO EACH SEC COMMENT LETTER RELATING TO THE REGISTRATION STATEMENT WITHIN
10 BUSINESS DAYS AFTER RECEIPT OF EACH SUCH COMMENT LETTER AND THE REGISTRATION
STATEMENT IS NOT DECLARED EFFECTIVE WITHIN 90 DAYS AFTER THE CLOSING DATE
(SUBJECT TO EXTENSION AS PROVIDED IN THE LAST SENTENCE