OF SUCH
DATE, A MATERIAL FACT NECESSARY TO MAKE THE STATEMENTS THEREIN, IN LIGHT OF THE
CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING, AND (B) SINCE THE TIME
OF SALE, THERE HAS OCCURRED NO EVENT REQUIRED TO BE SET FORTH IN AN AMENDMENT OR
SUPPLEMENT TO THE REGISTRATION STATEMENT, THE DISCLOSURE PACKAGE OR THE
PROSPECTUS WHICH HAS NOT BEEN SO SET FORTH AND THERE HAS BEEN NO DOCUMENT
REQUIRED TO BE FILED UNDER THE EXCHANGE ACT THAT UPON SUCH FILING WOULD BE
DEEMED TO BE INCORPORATED BY REFERENCE IN TO THE DISCLOSURE PACKAGE AND INTO THE
PROSPECTUS THAT HAS NOT BEEN SO FILED.
(L)
SECRETARY'S CERTIFICATE.
ON THE CLOSING DATE, THE COMPANY SHALL
HAVE FURNISHED TO THE PLACEMENT AGENT A SECRETARY'S CERTIFICATE OF THE COMPANY.
(M)
THE NASDAQ GLOBAL MARKET.
THE SHARES SHALL HAVE BEEN LISTED AND
AUTHORIZED FOR TRADING ON THE NASDAQ GLOBAL MARKET.
20
(N)
OTHER FILINGS WITH THE COMMISSION.
THE COMPANY SHALL HAVE
PREPARED A CURRENT REPORT ON FORM 8-K WITH RESPECT TO THE TRANSACTIONS
CONTEMPLATED HEREBY, TO BE FILED IMMEDIATELY AFTER THE CLOSING.
(O)
NO NASD OBJECTION.
THE NASD SHALL NOT HAVE RAISED ANY UNRESOLVED
OBJECTION WITH RESPECT TO THE FAIRNESS AND REASONABLENESS OF THE PLACEMENT
AGENCY TERMS AND ARRANGEMENTS RELATING TO THE ISSUANCE AND SALE OF THE SHARES.
(P)
LOCK-UP AGREEMENTS.
THE PLACEMENT AGENT SHALL HAVE RECEIVED
COPIES OF THE EXECUTED LOCK-UP AGREEMENTS EXECUTED BY EACH PERSON LISTED ON
EXHIBIT B HERETO, AND SUCH LOCK-UP AGREEMENTS SHALL BE IN FULL FORCE AND EFFECT
ON THE CLOSING DATE.
(Q)
ADDITIONAL DOCUMENTS.
PRIOR TO THE CLOSING DATE, THE COMPANY
SHALL HAVE FURNISHED TO THE PLACEMENT AGENT SUCH FURTHER INFORMATION,
CERTIFICATES OR DOCUMENTS AS THE PLACEMENT AGENT SHALL HAVE REASONABLY REQUESTED
FOR THE PURPOSE OF ENABLING IT TO PASS UPON THE ISSUANCE AND SALE OF THE SHARES
AS CONTEMPLATED HEREIN, OR IN ORDER TO EVIDENCE THE ACCURACY OF ANY OF THE
REPRESENTATIONS AND WARRANTIES, OR THE SATISFACTION OF ANY OF THE CONDITIONS OR
AGREEMENTS, HEREIN CONTAINED (IT BEING UNDERSTOOD THAT THE PLACEMENT AGENT'S
CUSTOMARY DUE DILIGENCE HAS ALREADY BEEN COMPLETED PRIOR TO THE EXECUTION OF
THIS AGREEMENT).
All opinions, letters, evidence and certificates mentioned above or elsewhere in
this Agreement shall be deemed to be in compliance with the provisions hereof
only if they are in form and substance reasonably satisfactory to counsel for
the Placement Agent.
6.
INDEMNIFICATION AND CONTRIBUTION.
(A)
INDEMNIFICATION OF THE PLACEMENT AGENT.
THE COMPANY AGREES TO
INDEMNIFY, DEFEND AND HOLD HARMLESS THE PLACEMENT AGENT, ITS DIRECTORS AND
OFFICERS, AND EACH PERSON, IF ANY, WHO CONTROLS THE PLACEMENT AGENT WITHIN THE
MEANING OF EITHER SECTION 15 OF THE SECURITIES ACT OR SECTION 20 OF THE EXCHANGE
ACT, AND THE SUCCESSORS AND ASSIGNS OF ALL OF THE FOREGOING PERSONS, FROM AND
AGAINST ANY LOSS, DAMAGE, CLAIM OR LIABILITY, WHICH, JOINTLY OR SEVERALLY, THE
PLACEMENT AGENT OR ANY SUCH PERSON MAY BECOME SUBJECT UNDER THE SECURITIES ACT,
THE EXCHANGE ACT, OR OTHER FEDERAL OR STATE STATUTORY LAW OR REGULATION, THE
COMMON LAW OR OTHERWISE,