Securities Act) shall be entitled to contribution from the Company if the
Company is not guilty of such fraudulent misrepresentation.
(H)
RESERVED.
(I)
HOLDBACK.
WITH RESPECT TO ANY UNDERWRITTEN OFFERING OF
REGISTRABLE SECURITIES BY THE INVESTOR PURSUANT TO THIS SECTION 4.1, THE COMPANY
AGREES NOT TO EFFECT (OTHER THAN PURSUANT TO SUCH REGISTRATION OR PURSUANT TO A
SPECIAL REGISTRATION) ANY PUBLIC SALE OR DISTRIBUTION, OR TO FILE ANY SHELF
REGISTRATION STATEMENT (OTHER THAN SUCH REGISTRATION OR A SPECIAL REGISTRATION)
COVERING ANY OF ITS EQUITY SECURITIES, OR ANY SECURITIES CONVERTIBLE INTO OR
EXCHANGEABLE OR EXERCISABLE FOR SUCH SECURITIES, DURING THE PERIOD NOT TO EXCEED
10 DAYS PRIOR AND 60 DAYS FOLLOWING THE EFFECTIVE DATE OF SUCH OFFERING.
THE
COMPANY ALSO AGREES TO CAUSE EACH OF ITS DIRECTORS AND SENIOR EXECUTIVE OFFICERS
TO EXECUTE AND DELIVER CUSTOMARY LOCKUP AGREEMENTS IN SUCH FORM AND FOR SUCH
TIME PERIOD UP TO 90 DAYS AS MAY BE REQUESTED BY THE MANAGING UNDERWRITER.
(J)
RULE 144; RULE 144A REPORTING.
WITH A VIEW TO MAKING
AVAILABLE TO THE INVESTOR THE BENEFITS OF CERTAIN RULES AND REGULATIONS OF THE
SEC WHICH MAY PERMIT THE SALE OF THE REGISTRABLE SECURITIES TO THE PUBLIC
WITHOUT REGISTRATION, SO LONG AS THE INVESTOR OWNS ANY REGISTRABLE SECURITIES,
THE COMPANY AGREES TO USE ITS REASONABLE BEST EFFORTS TO:
(1)
MAKE AND KEEP PUBLIC INFORMATION AVAILABLE, AS THOSE TERMS ARE
UNDERSTOOD AND DEFINED IN RULE 144(C)(1) OR ANY SIMILAR OR ANALOGOUS RULE
PROMULGATED UNDER THE SECURITIES ACT;
(2)
FILE WITH THE SEC, IN A TIMELY MANNER, ALL REPORTS AND OTHER
DOCUMENTS REQUIRED OF THE COMPANY UNDER THE EXCHANGE ACT, AND IF AT ANY TIME THE
COMPANY IS NOT REQUIRED TO FILE SUCH REPORTS, MAKE AVAILABLE, UPON THE REQUEST
OF THE INVESTOR, SUCH INFORMATION NECESSARY TO PERMIT SALES PURSUANT TO
RULE 144A (INCLUDING THE INFORMATION REQUIRED BY RULE 144A(D)(4) AND THE
SECURITIES ACT);
(3)
FURNISH TO THE INVESTOR FORTHWITH UPON REQUEST:
A WRITTEN
STATEMENT BY THE COMPANY AS TO ITS COMPLIANCE WITH THE REPORTING REQUIREMENTS OF
RULE 144 UNDER THE SECURITIES ACT, AND OF THE EXCHANGE ACT; A COPY OF THE MOST
RECENT ANNUAL OR QUARTERLY REPORT OF THE COMPANY; AND SUCH OTHER REPORTS AND
DOCUMENTS AS THE INVESTOR MAY REASONABLY REQUEST IN AVAILING ITSELF OF ANY RULE
OR REGULATION OF THE SEC ALLOWING IT TO SELL REGISTRABLE SECURITIES WITHOUT
REGISTRATION UNDER THE SECURITIES ACT; AND
(4)
TAKE SUCH FURTHER ACTION AS THE INVESTOR MAY REASONABLY
REQUEST, ALL TO THE EXTENT REQUIRED FROM TIME TO TIME TO ENABLE THE INVESTOR TO
SELL REGISTRABLE SECURITIES WITHOUT REGISTRATION UNDER THE SECURITIES ACT.
-22-
(K)
CERTAIN DEFINITIONS.
AS USED IN THIS SECTION 4.1, THE
FOLLOWING TERMS SHALL HAVE THE FOLLOWING RESPECTIVE MEANINGS:
(1)
"REGISTER," "REGISTERED," AND "REGISTRATION" SHALL REFER TO A
REGISTRATION EFFECTED BY PREPARING AND (A) FILING A REGISTRATION STATEMENT IN
COMPLIANCE WITH THE SECURITIES ACT, AND THE DECLARATION OR ORDERING OF
EFFECTIVENESS OF SUCH REGISTRATION STATEMENT, OR (B) FILING A PROSPECTUS AND/OR
PROSPECTUS SUPPLEMENT IN RESPECT OF AN APPROPRIATE EFFECTIVE REGISTRATION
STATEMENT ON FORM S-3;