CONDITIONS,
WHICH, UNDER APPLICABLE LAW, RULE OR REGULATION, REQUIRES PUBLIC DISCLOSURE OR
ANNOUNCEMENT BY THE COMPANY BUT WHICH HAS NOT BEEN SO PUBLICLY ANNOUNCED OR
DISCLOSED.
4.
COVENANTS.
(A)
BEST EFFORTS.
EACH PARTY SHALL USE ITS BEST EFFORTS TIMELY TO
SATISFY EACH OF THE CONDITIONS TO BE SATISFIED BY IT AS PROVIDED IN SECTIONS 6
AND 7 OF THIS AGREEMENT.
(B)
FORM D AND BLUE SKY.
THE COMPANY AGREES TO FILE A FORM D WITH
RESPECT TO THE COMMON SHARES AS REQUIRED UNDER REGULATION D AND TO PROVIDE A
COPY THEREOF TO EACH BUYER PROMPTLY AFTER SUCH FILING.
THE COMPANY SHALL, ON OR
BEFORE THE CLOSING DATE, TAKE SUCH ACTION AS THE COMPANY SHALL REASONABLY
DETERMINE IS NECESSARY IN ORDER TO OBTAIN AN EXEMPTION FOR OR TO QUALIFY THE
COMMON SHARES FOR SALE TO THE BUYERS AT THE CLOSING PURSUANT TO THIS AGREEMENT
UNDER APPLICABLE SECURITIES OR "BLUE SKY" LAWS OF THE STATES OF THE UNITED
STATES (OR TO OBTAIN AN EXEMPTION FROM SUCH QUALIFICATION), AND SHALL PROVIDE
EVIDENCE OF ANY SUCH ACTION SO TAKEN TO THE BUYERS ON OR PRIOR TO THE CLOSING
DATE.
THE COMPANY SHALL MAKE ALL FILINGS AND REPORTS RELATING TO THE OFFER AND
SALE OF THE COMMON SHARES REQUIRED UNDER APPLICABLE SECURITIES OR "BLUE SKY"
LAWS OF THE STATES OF THE UNITED STATES FOLLOWING THE CLOSING DATE.
(C)
REPORTING STATUS.
UNTIL THE DATE ON WHICH THE BUYERS SHALL HAVE
SOLD ALL THE COMMON SHARES (THE "REPORTING PERIOD"), THE COMPANY SHALL TIMELY
FILE ALL REPORTS
16
REQUIRED TO BE FILED WITH THE SEC PURSUANT TO THE 1934 ACT, AND THE COMPANY
SHALL NOT TERMINATE ITS STATUS AS AN ISSUER REQUIRED TO FILE REPORTS UNDER THE
1934 ACT EVEN IF THE 1934 ACT OR THE RULES AND REGULATIONS THEREUNDER WOULD NO
LONGER REQUIRE OR OTHERWISE PERMIT SUCH TERMINATION.
FROM THE TIME FORM S-3 IS
AVAILABLE TO THE COMPANY FOR THE REGISTRATION OF THE COMMON SHARES, THE COMPANY
SHALL TAKE ALL ACTIONS NECESSARY TO MAINTAIN ITS ELIGIBILITY TO REGISTER THE
COMMON SHARES FOR RESALE BY THE BUYERS ON FORM S-3 AND AT ALL TIMES THE COMPANY
SHALL CONDUCT ITS BUSINESS IN ACCORDANCE WITH APPLICABLE LAW.
(D)
USE OF PROCEEDS.
THE COMPANY WILL USE THE PROCEEDS FROM THE SALE OF THE
COMMON SHARES FOR THE ACCELERATION OF THE CAPITAL EXPENDITURE PROGRAM, REPAYMENT
OF DEBT, WORKING CAPITAL AND GENERAL CORPORATE PURPOSES, AND NOT FOR THE
REDEMPTION OR REPURCHASE OF ANY OF ITS OR ITS SUBSIDIARIES' EQUITY SECURITIES.
(E)
LISTING.
THE COMPANY SHALL PROMPTLY SECURE THE LISTING OF ALL OF THE
REGISTRABLE SECURITIES (AS DEFINED IN THE REGISTRATION RIGHTS AGREEMENT) UPON
EACH NATIONAL SECURITIES EXCHANGE AND AUTOMATED QUOTATION SYSTEM, IF ANY, UPON
WHICH THE COMMON STOCK IS THEN LISTED (SUBJECT TO OFFICIAL NOTICE OF ISSUANCE).
(F)
PLEDGE OF COMMON SHARES.
THE COMPANY ACKNOWLEDGES AND AGREES
THAT THE COMMON SHARES MAY BE PLEDGED BY AN INVESTOR (AS DEFINED IN THE
REGISTRATION RIGHTS AGREEMENT) IN CONNECTION WITH A BONA FIDE MARGIN AGREEMENT
OR OTHER LOAN OR FINANCING ARRANGEMENT THAT IS SECURED BY