company represents and warrants that it has full power and authority to
enter into this Agreement and to perform its obligations hereunder.
This
Agreement is enforceable against the Company in accordance with its terms,
subject to applicable laws governing bankruptcy, insolvency and creditors'
rights generally.
The Agreement does not conflict with, violate, cause a
default, right of termination, or acceleration (whether through the passage of
time or otherwise) under any contract, agreement, or understanding binding upon
the Company or any subsidiary of the Company.
4.
COVENANTS OF THE COMPANY.
The Company covenants and agrees as follows:
(A)
NEITHER THE COMPANY NOR ANY AFFILIATE OF THE COMPANY (AS DEFINED
IN RULE 501(B) OF THE SECURITIES ACT) WILL SELL, OFFER FOR SALE OR SOLICIT
OFFERS TO BUY OR OTHERWISE NEGOTIATE IN RESPECT OF ANY SECURITY (AS DEFINED IN
THE SECURITIES ACT) OF THE COMPANY WHICH WILL BE INTEGRATED WITH THE SALE OF THE
SECURITIES IN A MANNER WHICH WOULD REQUIRE THE REGISTRATION UNDER THE SECURITIES
ACT OF THE SECURITIES.
(B)
ANY AND ALL FILINGS AND DOCUMENTS REQUIRED TO BE FILED IN
CONNECTION WITH OR AS A RESULT OF THE PLACEMENTS PURSUANT TO FEDERAL AND STATE
SECURITIES LAWS ARE THE RESPONSIBILITY OF THE COMPANY AND WILL BE FILED BY THE
COMPANY, OTHER THAN NASD OR OTHER REGULATORY FILINGS REQUIRED TO BE MADE BY
STONEGATE OR A PARTICULAR PURCHASER, WHICH SHALL BE THE SOLE OBLIGATION OF
STONEGATE OR SUCH PURCHASER, AS APPLICABLE.
(C)
ANY PRESS RELEASE TO BE ISSUED BY THE COMPANY ANNOUNCING OR
REFERRING TO ANY PLACEMENT SHALL, AT THE REQUEST OF STONEGATE, IDENTIFY
STONEGATE AS THE PLACEMENT AGENT.
SUBJECT TO PRIOR REVIEW OF THE COMPANY,
STONEGATE SHALL BE PERMITTED TO PUBLISH A TOMBSTONE OR SIMILAR ADVERTISEMENT
UPON COMPLETION OF EACH PLACEMENT IDENTIFYING ITSELF AS THE COMPANY'S PLACEMENT
AGENT WITH RESPECT THERETO; PROVIDED, THAT EACH SUCH ADVERTISEMENT DOES NOT
CONSTITUTE A GENERAL SOLICITATION UNDER FEDERAL SECURITIES LAWS AND OTHERWISE
COMPLIES WITH THE REQUIREMENTS OF THE SECURITIES ACT.
THIS AGREEMENT SHALL NOT
BE FILED PUBLICLY BY THE COMPANY WITHOUT THE PRIOR WRITTEN CONSENT OF STONEGATE,
UNLESS REQUIRED BY APPLICABLE LAW OR REGULATION.
2
5.
FURNISHING OF COMPANY INFORMATION; CONFIDENTIALITY.
(A)
IN CONNECTION WITH STONEGATE'S ACTIVITIES HEREUNDER ON THE
COMPANY'S BEHALF, THE COMPANY SHALL FURNISH STONEGATE WITH ALL REASONABLE
INFORMATION CONCERNING THE COMPANY AND ITS OPERATIONS THAT STONEGATE DEEMS
NECESSARY OR APPROPRIATE (THE "COMPANY INFORMATION") AND SHALL PROVIDE STONEGATE
WITH REASONABLE ACCESS TO THE COMPANY'S BOOKS, RECORDS, OFFICERS, DIRECTORS,
EMPLOYEES, ACCOUNTANTS AND COUNSEL.
THE COMPANY ACKNOWLEDGES AND AGREES THAT,
IN RENDERING ITS SERVICES HEREUNDER, STONEGATE WILL BE USING AND RELYING UPON
THE COMPANY INFORMATION WITHOUT INDEPENDENT VERIFICATION THEREOF OR INDEPENDENT
APPRAISAL OF ANY OF THE COMPANY'S ASSETS AND MAY, IN ITS SOLE DISCRETION, USE
ADDITIONAL INFORMATION CONTAINED IN PUBLIC REPORTS OR OTHER INFORMATION
FURNISHED BY THE COMPANY OR THIRD PARTIES.
(B)
STONEGATE AGREES THAT THE COMPANY INFORMATION WILL BE USED SOLELY
FOR THE PURPOSE OF PERFORMING ITS SERVICES HEREUNDER.
SUBJECT TO THE
LIMITATIONS SET FORTH IN SUBSECTION (C) BELOW, STONEGATE WILL KEEP THE COMPANY