TO ANY PERMITTED FREE WRITING PROSPECTUS, INCLUDING
TIMELY COMMISSION FILING WHERE REQUIRED, LEGENDING AND RECORD KEEPING.
(B)
IF SO INDICATED IN THE SUBSCRIPTION AGREEMENTS, THE COMPANY WILL PREPARE A
FINAL TERM SHEET RELATING TO THE SECURITIES, CONTAINING ONLY INFORMATION THAT
DESCRIBES THE FINAL TERMS OF THE SECURITIES AND OTHERWISE IN A FORM CONSENTED TO
BY THE PLACEMENT AGENT, AND WILL FILE SUCH FINAL TERM SHEET WITHIN THE PERIOD
REQUIRED BY RULE 433(D)(5)(II) FOLLOWING THE DATE SUCH FINAL TERMS HAVE BEEN
ESTABLISHED FOR THE OFFERING OF THE SECURITIES.
ANY SUCH FINAL TERM SHEET IS AN
ISSUER FREE WRITING PROSPECTUS AND A PERMITTED FREE WRITING PROSPECTUS FOR
PURPOSES OF THIS AGREEMENT.
THE COMPANY ALSO CONSENTS TO THE USE BY THE
PLACEMENT AGENT OF A FREE WRITING PROSPECTUS THAT CONTAINS ONLY (I)(X)
INFORMATION DESCRIBING THE PRELIMINARY TERMS OF THE SECURITIES OR THEIR OFFERING
OR (Y) INFORMATION THAT DESCRIBES THE FINAL TERMS OF THE SECURITIES OR THEIR
OFFERING AND THAT IS INCLUDED IN THE FINAL TERM SHEET OF THE COMPANY
CONTEMPLATED IN THE FIRST SENTENCE OF THIS SUBSECTION OR (II) OTHER INFORMATION
THAT IS NOT "ISSUER INFORMATION," AS DEFINED IN RULE 433, IT BEING UNDERSTOOD
THAT ANY SUCH FREE WRITING PROSPECTUS REFERRED TO IN CLAUSES (I) OR (II) ABOVE
SHALL NOT BE AN ISSUER FREE WRITING PROSPECTUS FOR PURPOSES OF THIS AGREEMENT.
SECTION 5.
PAYMENT OF EXPENSES.
THE COMPANY AGREES TO PAY ALL COSTS, FEES AND
EXPENSES INCURRED IN CONNECTION WITH THE PERFORMANCE OF ITS OBLIGATIONS
HEREUNDER AND IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING
WITHOUT LIMITATION (I) ALL EXPENSES INCIDENT TO THE ISSUANCE AND DELIVERY OF THE
SECURITIES (INCLUDING ALL PRINTING AND ENGRAVING COSTS), (II) ALL FEES AND
EXPENSES OF THE REGISTRAR AND TRANSFER AGENT OF THE COMMON STOCK AND THE
WARRANTS, (III) ALL NECESSARY ISSUE, TRANSFER AND OTHER STAMP TAXES IN
CONNECTION WITH THE ISSUANCE AND SALE OF THE SECURITIES TO THE PURCHASERS, (IV)
ALL FEES AND EXPENSES OF THE COMPANY'S COUNSEL, INDEPENDENT PUBLIC OR CERTIFIED
PUBLIC ACCOUNTANTS AND OTHER ADVISORS, (V) ALL COSTS AND EXPENSES INCURRED IN
CONNECTION WITH THE PREPARATION, PRINTING, FILING, SHIPPING AND DISTRIBUTION OF
EACH REGISTRATION STATEMENT (INCLUDING FINANCIAL STATEMENTS, EXHIBITS,
SCHEDULES, CONSENTS AND CERTIFICATES OF EXPERTS), EACH STATUTORY PROSPECTUS AND
THE PROSPECTUS, AND ALL AMENDMENTS AND SUPPLEMENTS THERETO, AND THIS AGREEMENT,
(VI) ALL FILING FEES, ATTORNEYS' FEES AND EXPENSES INCURRED BY THE COMPANY IN
CONNECTION WITH QUALIFYING OR REGISTERING (OR OBTAINING
12
EXEMPTIONS FROM THE QUALIFICATION OR REGISTRATION OF) ALL OR ANY PART OF THE
SECURITIES FOR OFFER AND SALE UNDER THE STATE SECURITIES OR BLUE SKY LAWS, AND,
IF REQUESTED BY THE PLACEMENT AGENT, PREPARING AND PRINTING A "BLUE SKY SURVEY"
OR MEMORANDUM, AND ANY SUPPLEMENTS THERETO, ADVISING THE PLACEMENT AGENT OF SUCH
QUALIFICATIONS, REGISTRATIONS AND EXEMPTIONS, PROVIDED THAT THE PLACEMENT AGENT
SHALL CONSULT WITH THE COMPANY PRIOR TO INCURRING ANY SUCH COSTS (VII) THE FEES
AND EXPENSES ASSOCIATED WITH LISTING OF THE TOTAL SHARES ON THE STOCK EXCHANGE,
IF ANY, (VIII) THE ESCROW AGENT FEES DUE PURSUANT TO THE ESCROW AGREEMENT, AND
(IX)