shall not contain, with respect to the Stockholder or
the distribution of such Registrable Securities, an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(B)
HOLDBACK AGREEMENT; POSTPONEMENT.
(I)
THE
STOCKHOLDER AGREES BY ACQUISITION OF THE REGISTRABLE SECURITIES NOT TO ENGAGE IN
TRANSACTIONS INVOLVING THE COMPANY'S EQUITY SECURITIES, INCLUDING BY COMMENCING
ANY PUBLIC OFFERING OF THE COMPANY'S EQUITY SECURITIES, BY ENTERING INTO
TRANSACTIONS THAT RESULT IN ANOTHER PARTY SELLING THE COMPANY'S EQUITY
SECURITIES OR BY CAUSING A SHELF TAKEDOWN, DURING THE SEVEN DAYS PRIOR TO AND
THE 90 DAYS AFTER THE PRICING OF ANY OFFERING OF THE COMPANY'S EQUITY SECURITIES
(OTHER THAN UNDER FORM S-4 OR FORM S-8) (EITHER FOR ITS OWN ACCOUNT OR FOR THE
BENEFIT OF THE HOLDERS OF ANY SECURITIES OF THE COMPANY) PURSUANT TO A
REGISTRATION STATEMENT; PROVIDED, THAT THE COMPANY SHALL GIVE THE STOCKHOLDER
NOTICE AS SOON AS REASONABLY PRACTICABLE OF THE DATE UPON WHICH THE PRICING OF
SUCH OFFERING IS EXPECTED TO OCCUR AND, IN ANY EVENT THE STOCKHOLDER'S HOLDBACK
RESTRICTION FOR THE SEVEN DAY PERIOD PRIOR TO SUCH EXPECTED DATE OF PRICING
SHALL NOT COMMENCE UNTIL THE SEVENTH CALENDAR DAY AFTER SUCH NOTICE IS GIVEN.
(II)
THE COMPANY MAY, BY WRITTEN NOTICE TO THE
STOCKHOLDER, POSTPONE ANY REGISTRATION WHICH IS REQUESTED PURSUANT TO SECTION 2
OR DELIVERY OF A PROSPECTUS PURSUANT TO SECTION 3(VII) IF THE COMPANY'S OUTSIDE
COUNSEL HAS ADVISED IT IN WRITING THAT UNDER APPLICABLE SECURITIES LAWS THE USE
OF SUCH REGISTRATION STATEMENT WOULD REQUIRE DISCLOSURE OF A MATERIAL CORPORATE
DEVELOPMENT NOT OTHERWISE REQUIRED TO BE DISCLOSED THAT THE COMPANY HAS A VALID
BUSINESS PURPOSE FOR NOT DISCLOSING.
IN THE EVENT THE COMPANY MAKES ANY SUCH
ELECTION, THE STOCKHOLDER AGREES TO KEEP CONFIDENTIAL THE FACT OF SUCH ELECTION
AND ANY INFORMATION PROVIDED BY THE COMPANY IN CONNECTION THEREWITH.
(III)
NOTWITHSTANDING THE BLACK-OUT RIGHTS AND THE
LOCK-UP PERIODS SET FORTH ABOVE IN SECTIONS 4(B)(I) AND 4(B)(II), IN THE 365
CALENDAR DAY PERIOD COMMENCING ON THE FIRST DAY AFTER ITS RECEIPT OF THE
SETTLEMENT SHARES, THE STOCKHOLDER SHALL NOT BE SUBJECT TO BLACK-OUT RIGHTS OR
LOCK-UP PERIODS FOR MORE THAN NINETY (90) DAYS IN THE AGGREGATE.
5.
REGISTRATION STATEMENT.
IN CONNECTION
WITH THE PREPARATION AND FILING OF THE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, THE COMPANY WILL GIVE THE STOCKHOLDER, ITS UNDERWRITERS, IF ANY,
AND THEIR RESPECTIVE COUNSEL, THE OPPORTUNITY TO PARTICIPATE IN THE PREPARATION
OF SUCH REGISTRATION STATEMENT, EACH PROSPECTUS INCLUDED THEREIN OR FILED WITH
THE COMMISSION, AND EACH AMENDMENT THEREOF OR SUPPLEMENT THERETO.
SUCH
OPPORTUNITY TO PARTICIPATE SHALL INCLUDE REASONABLE ACCESS FOR PURPOSES OF DUE
DILIGENCE, SUBJECT TO THE EXECUTION AND DELIVERY OF APPROPRIATE CONFIDENTIALITY
AGREEMENTS.
6.
INDEMNIFICATION. (A)
INDEMNIFICATION BY THE COMPANY.
IN THE EVENT OF ANY
REGISTRATION OF ANY REGISTRABLE SECURITIES OF THE COMPANY UNDER THE SECURITIES
ACT, THE COMPANY WILL, AND HEREBY DOES, INDEMNIFY AND HOLD HARMLESS THE