PURSUANT TO THIS AGREEMENT AND THE SUBSCRIPTION TERMS SHALL BE DEEMED TO HAVE
BEEN PURCHASED AND PAID FOR, OR SOLD BY THE COMPANY, UNTIL SUCH SHARES SHALL
HAVE BEEN DELIVERED TO THE INVESTOR THEREOF AGAINST PAYMENT THEREFOR BY SUCH
INVESTOR.
IF THE COMPANY SHALL DEFAULT IN ITS OBLIGATIONS TO DELIVER SHARES TO
AN INVESTOR WHOSE OFFER IT HAS ACCEPTED, THE COMPANY SHALL INDEMNIFY AND HOLD
THE PLACEMENT AGENT HARMLESS AGAINST ANY LOSS, CLAIM OR DAMAGE ARISING FROM OR
AS A RESULT OF SUCH DEFAULT BY THE COMPANY.
(E)
ANY INVESTOR NOT SETTLING ITS PURCHASE OF SHARES PURSUANT TO
SECTION 1(C) ABOVE SHALL DEPOSIT ITS RESPECTIVE PURCHASE AMOUNT INTO AN ACCOUNT
OR ACCOUNTS ESTABLISHED WITH THE PLACEMENT AGENT.
ON THE CLOSING DATE, THE
PLACEMENT AGENT SHALL, WITH RESPECT TO EACH SUCH INVESTOR, CAUSE THE PURCHASE
AMOUNT FOR SUCH SHARES TO BE WIRED FROM SUCH ACCOUNTS TO AN ACCOUNT DESIGNATED
BY THE COMPANY IN EXCHANGE FOR THE RELEASE OF SUCH INVESTOR'S SHARES.
2.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
THE COMPANY
REPRESENTS AND WARRANTS TO THE PLACEMENT AGENT AND THE INVESTORS AS FOLLOWS:
2
(A)
REGISTRATION STATEMENT AND PROSPECTUS.
THE COMPANY HAS PREPARED
AND FILED WITH THE SECURITIES AND EXCHANGE COMMISSION (THE "COMMISSION") A
REGISTRATION STATEMENT ON FORM S-3 (FILE NO. 333-134129) UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, AND THE RULES AND REGULATIONS (THE "RULES AND
REGULATIONS") OF THE COMMISSION THEREUNDER (COLLECTIVELY, THE "SECURITIES ACT"),
AND SUCH AMENDMENTS TO SUCH REGISTRATION STATEMENT AS MAY HAVE BEEN REQUIRED TO
THE DATE OF THIS AGREEMENT.
SUCH REGISTRATION STATEMENT HAS BEEN DECLARED
EFFECTIVE BY THE COMMISSION.
SUCH REGISTRATION STATEMENT, AT ANY GIVEN TIME,
INCLUDING AMENDMENTS THERETO AT SUCH TIME, THE EXHIBITS AND ANY SCHEDULES
THERETO AT SUCH TIME, THE DOCUMENTS INCORPORATED BY REFERENCE THEREIN PURSUANT
TO ITEM 12 OF FORM S-3 UNDER THE SECURITIES ACT AT SUCH TIME AND THE DOCUMENTS
AND INFORMATION OTHERWISE DEEMED TO BE A PART THEREOF OR INCLUDED THEREIN BY
RULE 430A, 430B OR 430C UNDER THE SECURITIES ACT OR OTHERWISE PURSUANT TO THE
SECURITIES ACT AT SUCH TIME, IS HEREIN CALLED THE "REGISTRATION STATEMENT."
ANY
REGISTRATION STATEMENT FILED BY THE COMPANY PURSUANT TO RULE 462(B) UNDER THE
SECURITIES ACT IS CALLED THE "RULE 462(B) REGISTRATION STATEMENT" AND, FROM AND
AFTER THE DATE AND TIME OF FILING OF THE RULE 462(B) REGISTRATION STATEMENT, THE
TERM "REGISTRATION STATEMENT" SHALL INCLUDE THE RULE 462(B) REGISTRATION
STATEMENT.
The Company proposes to file with the Commission pursuant to Rule 424 under the
Securities Act a final prospectus supplement relating to the Shares to a form of
prospectus included in the Registration Statement relating to the Shares in the
form heretofore delivered to the Placement Agent.
Such prospectus included in
the Registration Statement at the time it was declared effective by the
Commission or in the form in which it has been most recently filed with the
Commission on or prior to the date of this Agreement is hereinafter called the
"Base Prospectus."
Such supplemental form of prospectus, in the form in which