HAVE ANY OBLIGATION WHATSOEVER WITH RESPECT TO A PLACEMENT
OR ANY PLACEMENT SHARES UNLESS AND UNTIL THE COMPANY DELIVERS A PLACEMENT NOTICE
TO MLV AND MLV DOES NOT DECLINE SUCH PLACEMENT NOTICE PURSUANT TO THE TERMS SET
FORTH ABOVE, AND THEN ONLY UPON THE TERMS SPECIFIED THEREIN AND HEREIN.
IN THE
EVENT OF A CONFLICT BETWEEN THE TERMS OF THIS AGREEMENT AND THE TERMS OF A
PLACEMENT NOTICE, THE TERMS OF THE PLACEMENT NOTICE WILL CONTROL.
3.
SALE OF PLACEMENT SHARES BY AGENTS.
SUBJECT TO THE TERMS AND CONDITIONS HEREIN SET FORTH, UPON THE COMPANY'S
ISSUANCE OF A PLACEMENT NOTICE, AND UNLESS THE SALE OF THE
2
PLACEMENT SHARES DESCRIBED THEREIN HAS BEEN DECLINED, SUSPENDED, OR OTHERWISE
TERMINATED IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT, MLV, ACTING AS LEAD
AGENT, AND WM SMITH, ACTING AS SECONDARY AGENT, WILL USE THEIR COMMERCIALLY
REASONABLE EFFORTS CONSISTENT WITH THEIR NORMAL TRADING AND SALES PRACTICES TO
SELL SUCH PLACEMENT SHARES UP TO THE AMOUNT SPECIFIED, AND OTHERWISE IN
ACCORDANCE WITH THE TERMS OF SUCH PLACEMENT NOTICE.
AGENTS WILL PROVIDE WRITTEN
CONFIRMATION TO THE COMPANY NO LATER THAN THE OPENING OF THE TRADING DAY (AS
DEFINED BELOW) IMMEDIATELY FOLLOWING THE TRADING DAY ON WHICH IT HAS MADE SALES
OF PLACEMENT SHARES HEREUNDER SETTING FORTH THE NUMBER OF PLACEMENT SHARES SOLD
ON SUCH DAY, THE COMPENSATION PAYABLE BY THE COMPANY TO AGENTS PURSUANT TO
SECTION 2 WITH RESPECT TO SUCH SALES, AND THE NET PROCEEDS (AS DEFINED BELOW)
PAYABLE TO THE COMPANY.
AGENTS MAY DETERMINE A SINGLE AGENT TO BE RESPONSIBLE
FOR MAKING THIS CONFIRMATION ON BEHALF OF BOTH AGENTS.
AGENTS MAY SELL
PLACEMENT SHARES BY ANY METHOD PERMITTED BY LAW DEEMED TO BE AN "AT THE MARKET"
OFFERING AS DEFINED IN RULE 415 OF THE SECURITIES ACT, INCLUDING WITHOUT
LIMITATION SALES MADE DIRECTLY ON NASDAQ GLOBAL MARKET (THE "EXCHANGE"), ON ANY
OTHER EXISTING TRADING MARKET FOR THE COMMON STOCK OR TO OR THROUGH A MARKET
MAKER.
AGENTS MAY ALSO SELL PLACEMENT SHARES IN PRIVATELY NEGOTIATED
TRANSACTIONS.
THE COMPANY ACKNOWLEDGES AND AGREES THAT (I) THERE CAN BE NO
ASSURANCE THAT AGENTS WILL BE SUCCESSFUL IN SELLING PLACEMENT SHARES, AND
(II) NEITHER AGENT WILL INCUR ANY LIABILITY OR OBLIGATION TO THE COMPANY OR ANY
OTHER PERSON OR ENTITY IF IT DOES NOT SELL PLACEMENT SHARES FOR ANY REASON OTHER
THAN A FAILURE BY IT TO USE ITS COMMERCIALLY REASONABLE EFFORTS CONSISTENT WITH
ITS NORMAL TRADING AND SALES PRACTICES TO SELL SUCH PLACEMENT SHARES AS REQUIRED
UNDER THIS SECTION 3.
FOR THE PURPOSES HEREOF, "TRADING DAY" MEANS ANY DAY ON
WHICH COMMON STOCK IS PURCHASED AND SOLD ON THE PRINCIPAL MARKET ON WHICH THE
COMMON STOCK IS LISTED OR QUOTED.
4.
SUSPENSION OF SALES.
THE COMPANY OR
EITHER AGENT MAY, UPON NOTICE TO THE OTHER PARTIES IN WRITING (INCLUDING BY
EMAIL CORRESPONDENCE TO EACH OF THE INDIVIDUALS OF THE OTHER PARTIES SET FORTH
ON SCHEDULE 3, IF RECEIPT OF SUCH CORRESPONDENCE IS ACTUALLY ACKNOWLEDGED BY ANY
OF THE INDIVIDUALS TO WHOM THE NOTICE IS SENT, OTHER