ANY RELATED PRELIMINARY PROSPECTUS SUPPLEMENT, THE PROSPECTUS AND
ALL AMENDMENTS AND SUPPLEMENTS TO SUCH DOCUMENTS, IN EACH CASE AS SOON AS
AVAILABLE AND IN SUCH QUANTITIES AS THE PLACEMENT AGENT REASONABLY REQUESTS.
THE COMPANY WILL PAY THE EXPENSES OF PRINTING AND DISTRIBUTING TO THE PLACEMENT
AGENT AND PURCHASERS ALL SUCH DOCUMENTS.
(F)
THE COMPANY SHALL COOPERATE WITH THE PLACEMENT AGENT AND COUNSEL
FOR THE PLACEMENT AGENT TO QUALIFY OR REGISTER THE SECURITIES FOR SALE UNDER (OR
OBTAIN EXEMPTIONS FROM THE APPLICATION OF) THE STATE SECURITIES OR BLUE SKY LAWS
OF THOSE JURISDICTIONS WITHIN THE UNITED STATES DESIGNATED BY THE PLACEMENT
AGENT, SHALL COMPLY WITH SUCH LAWS AND SHALL CONTINUE SUCH QUALIFICATIONS,
REGISTRATIONS AND EXEMPTIONS IN EFFECT SO LONG AS REQUIRED FOR THE DISTRIBUTION
OF THE SECURITIES.
THE COMPANY SHALL NOT BE REQUIRED TO QUALIFY AS A FOREIGN
CORPORATION OR TO TAKE ANY ACTION THAT WOULD SUBJECT IT TO GENERAL SERVICE OF
PROCESS IN ANY SUCH JURISDICTION WHERE IT IS NOT PRESENTLY QUALIFIED OR WHERE IT
WOULD BE SUBJECT TO TAXATION AS A FOREIGN CORPORATION WHERE IT IS NOT NOW SO
SUBJECT.
THE COMPANY WILL ADVISE THE PLACEMENT AGENT PROMPTLY OF THE SUSPENSION
OF THE QUALIFICATION OR REGISTRATION OF (OR ANY SUCH EXEMPTION RELATING TO) THE
SECURITIES FOR OFFERING, SALE OR TRADING IN ANY JURISDICTION OR ANY INITIATION
OR THREAT OF ANY PROCEEDING FOR ANY SUCH PURPOSE, AND IN THE EVENT OF THE
ISSUANCE OF ANY ORDER SUSPENDING SUCH QUALIFICATION, REGISTRATION OR EXEMPTION,
THE COMPANY SHALL USE ITS COMMERCIALLY REASONABLE EFFORTS TO OBTAIN THE
WITHDRAWAL THEREOF AS PROMPTLY AS REASONABLY PRACTICABLE.
(G)
THE COMPANY WILL NOT TAKE, DIRECTLY OR INDIRECTLY, ANY ACTION DESIGNED TO
CAUSE OR RESULT IN, OR THAT HAS CONSTITUTED OR MIGHT REASONABLY BE EXPECTED TO
CONSTITUTE, UNDER THE EXCHANGE ACT OR OTHERWISE, THE STABILIZATION OR
MANIPULATION OF THE PRICE OF ANY SECURITIES OF THE COMPANY TO FACILITATE THE
SALE OR RESALE OF THE SECURITIES.
11
The Placement Agent may, in its sole discretion, waive in writing the
performance by the Company of any one or more of the foregoing covenants or
extend the time for their performance.
SECTION 4.
FREE WRITING PROSPECTUSES.
(A)
THE COMPANY REPRESENTS AND AGREES THAT, UNLESS IT OBTAINS THE PRIOR CONSENT
OF THE PLACEMENT AGENT, AND THE PLACEMENT AGENT REPRESENTS AND AGREES THAT,
UNLESS IT OBTAINS THE PRIOR CONSENT OF THE COMPANY, IT HAS NOT MADE AND WILL NOT
MAKE ANY OFFER RELATING TO THE SECURITIES THAT WOULD CONSTITUTE AN ISSUER FREE
WRITING PROSPECTUS, OR THAT WOULD OTHERWISE CONSTITUTE A "FREE WRITING
PROSPECTUS," AS DEFINED IN RULE 405, REQUIRED TO BE FILED WITH THE COMMISSION.
ANY SUCH FREE WRITING PROSPECTUS CONSENTED TO BY THE COMPANY AND THE PLACEMENT
AGENT IS HEREINAFTER REFERRED TO AS A "PERMITTED FREE WRITING PROSPECTUS."
THE
COMPANY REPRESENTS THAT IT HAS TREATED AND AGREES THAT IT WILL TREAT EACH
PERMITTED FREE WRITING PROSPECTUS AS AN "ISSUER FREE WRITING PROSPECTUS," AS
DEFINED IN RULE 433, AND HAS COMPLIED AND WILL COMPLY WITH THE REQUIREMENTS OF
RULES 164 AND 433 APPLICABLE