ANY SUCH UNDERWRITER, ATTORNEY,
ACCOUNTANT OR AGENT IN CONNECTION WITH SUCH UNDERWRITTEN OFFERING;
(IV)
IF REASONABLY REQUESTED BY THE MANAGING UNDERWRITER OR AGENT OR
THE INVESTORS, PROMPTLY INCORPORATE IN A PROSPECTUS SUPPLEMENT OR POST-EFFECTIVE
AMENDMENT SUCH INFORMATION AS THE MANAGING UNDERWRITER OR AGENT OR THE INVESTORS
REASONABLY REQUEST TO BE INCLUDED THEREIN, INCLUDING, WITH RESPECT TO THE NUMBER
OF REGISTRABLE SECURITIES BEING SOLD BY THE INVESTORS TO SUCH UNDERWRITER OR
AGENT, THE PURCHASE PRICE BEING PAID THEREFOR BY SUCH UNDERWRITER OR AGENT AND
WITH RESPECT TO ANY OTHER TERMS OF THE UNDERWRITTEN OFFERING AND MAKE ALL
REQUIRED FILINGS OF SUCH PROSPECTUS SUPPLEMENT OR POST-EFFECTIVE AMENDMENT AS
SOON AS REASONABLY PRACTICABLE AFTER BEING NOTIFIED OF THE MATTERS INCORPORATED
IN SUCH PROSPECTUS SUPPLEMENT OR POST-EFFECTIVE AMENDMENT;
(V)
OBTAIN FOR DELIVERY TO THE UNDERWRITER OR AGENT AN OPINION OR
OPINIONS FROM COUNSEL FOR THE COMPANY IN CUSTOMARY FORM, SUBSTANCE AND SCOPE
REASONABLY SATISFACTORY TO SUCH UNDERWRITERS OR AGENTS AND THEIR COUNSEL; AND
(VI)
USE ITS COMMERCIALLY REASONABLE EFFORTS TO MAKE AVAILABLE THE
EXECUTIVE OFFICERS OF THE COMPANY TO PARTICIPATE WITH THE INVESTORS AND/OR ANY
UNDERWRITERS IN ANY CUSTOMARY "ROAD SHOWS" OR OTHER SELLING EFFORTS THAT MAY BE
REASONABLY REQUESTED BY THE INVESTORS, ON THE ONE HAND, OR MANAGING
UNDERWRITERS, ON THE OTHER HAND, IN CONNECTION WITH AN
9
UNDERWRITTEN OFFERING; PROVIDED, THAT, AFTER THE COMPANY HAS CONSUMMATED TWO
(2) UNDERWRITTEN OFFERINGS REQUESTED BY THE INVESTOR PURSUANT TO THIS AGREEMENT,
THIS CLAUSE (VI) SHALL ONLY APPLY TO THOSE UNDERWRITTEN OFFERINGS THAT, BASED ON
THE GOOD FAITH DETERMINATION OF THE INVESTORS IN CONSULTATION WITH THE MANAGING
UNDERWRITER, ARE EXPECTED TO RESULT IN GROSS PROCEEDS OF AT LEAST $10.0 MILLION.
(N)
THE COMPANY SHALL USE ITS REASONABLE BEST EFFORTS TO SECURE THE
LISTING OF ALL OF THE REGISTRABLE SECURITIES COVERED BY SUCH REGISTRATION
STATEMENT UPON EACH NATIONAL SECURITIES EXCHANGE AND AUTOMATED QUOTATION SYSTEM,
IF ANY, UPON WHICH SHARES OF COMMON STOCK SHALL BE SO LISTED AND SHALL MAINTAIN,
SO LONG AS ANY OTHER SHARES OF COMMON STOCK SHALL BE SO LISTED, SUCH LISTING OF
SUCH REGISTRABLE SECURITIES.
(O)
DURING THE PERIOD THAT THE COMPANY IS REQUIRED TO MAINTAIN
EFFECTIVENESS OF THE REGISTRATION STATEMENT PURSUANT TO SECTION 3(A), THE
COMPANY SHALL NOT BID FOR OR PURCHASE ANY COMMON STOCK OR ANY RIGHT TO PURCHASE
COMMON STOCK OR ATTEMPT TO INDUCE ANY PERSON TO PURCHASE ANY SUCH SECURITY OR
RIGHT IF SUCH BID, PURCHASE OR ATTEMPT WOULD IN ANY WAY LIMIT THE RIGHT OF THE
INVESTORS TO SELL REGISTRABLE SECURITIES BY REASON OF THE LIMITATIONS SET FORTH
IN REGULATION M UNDER THE EXCHANGE ACT.
(P)
IF A REGISTRATION STATEMENT COVERING THE REGISTRABLE SECURITIES
WILL TERMINATE BY ITS TERMS, THE COMPANY SHALL, AS FAR IN ADVANCE AS IS
PRACTICABLE, REFILE (OR FILE AND HAVE DECLARED EFFECTIVE) A NEW REGISTRATION
STATEMENT AND USE ITS REASONABLE BEST EFFORTS TO MINIMIZE AND GAP BETWEEN THE
TWO REGISTRATION STATEMENTS.
(Q)
TO THE EXTENT THAT ANY OF THE INVESTORS IS DEEMED TO BE AN
UNDERWRITER OF REGISTRABLE SECURITIES PURSUANT TO ANY SEC COMMENTS