OF THE THEN OUTSTANDING VOTING
SECURITIES OF THE COMPANY; OR (Y) ANNOUNCES OR COMMENCES A TENDER OR EXCHANGE
OFFER TO ACQUIRE VOTING SECURITIES OF THE COMPANY WHICH, IF SUCCESSFUL, WOULD
RESULT IN SUCH PERSON OR GROUP OWNING, WHEN COMBINED WITH ANY OTHER VOTING
SECURITIES OF THE COMPANY OWNED BY SUCH PERSON OR GROUP, FIFTEEN PERCENT (15%)
OR MORE OF THE THEN OUTSTANDING VOTING SECURITIES OF THE COMPANY.
11.3
UNDERWRITTEN OFFERINGS.
INVESTOR AGREES THAT IN THE EVENT THE
COMPANY PROPOSES TO FILE A REGISTRATION STATEMENT FOR AN UNDERWRITTEN PUBLIC
OFFERING OF ITS SECURITIES, UPON THE REQUEST OF THE UNDERWRITERS MANAGING SUCH
PUBLIC OFFERING, PROVIDED INVESTOR BENEFICIALLY OWNS FIVE PERCENT (5%) OR MORE
OF THE COMPANY'S COMMON STOCK AS OF THE DATE OF SUCH REQUEST, INVESTOR WILL
EXECUTE A CUSTOMARY LOCK-UP AGREEMENT, WHEREBY INVESTOR SHALL AGREE NOT TO SELL
OR OTHERWISE DISPOSE THE REGISTRABLE SHARES WITHOUT THE PRIOR WRITTEN CONSENT OF
THE UNDERWRITERS FOR A PERIOD NOT TO EXCEED NINETY (90) DAYS FROM THE EFFECTIVE
DATE OF THE REGISTRATION STATEMENT.
ARTICLE XII
MISCELLANEOUS
12.1
CONFLICTING INSTRUCTIONS.
A PERSON OR ENTITY IS DEEMED TO BE A
HOLDER OF REGISTRABLE SECURITIES WHENEVER SUCH PERSON OR ENTITY OWNS OF RECORD
SUCH REGISTRABLE SECURITIES.
IF THE COMPANY RECEIVES CONFLICTING INSTRUCTIONS,
NOTICES OR ELECTIONS FROM TWO OR MORE PERSONS OR ENTITIES WITH RESPECT TO THE
SAME REGISTRABLE SECURITIES, THE COMPANY WILL ACT UPON THE BASIS OF
INSTRUCTIONS, NOTICE OR ELECTION RECEIVED FROM THE REGISTERED OWNER OF SUCH
REGISTRABLE SECURITIES.
12.2
NOTICES.
ANY NOTICES REQUIRED OR PERMITTED TO BE GIVEN UNDER THE
TERMS OF THIS AGREEMENT WILL BE GIVEN AS SET FORTH IN THE PURCHASE AGREEMENT.
14
12.3
WAIVER.
FAILURE OF ANY PARTY TO EXERCISE ANY RIGHT OR REMEDY UNDER
THIS AGREEMENT OR OTHERWISE, OR DELAY BY A PARTY IN EXERCISING SUCH RIGHT OR
REMEDY, DOES NOT OPERATE AS A WAIVER THEREOF.
12.4
GOVERNING LAW.
THIS AGREEMENT WILL BE GOVERNED BY AND INTERPRETED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICT OF LAWS.
THE PARTIES HERETO HEREBY SUBMIT TO THE
EXCLUSIVE JURISDICTION OF THE UNITED STATES FEDERAL AND STATE COURTS LOCATED IN
THE STATE OF NEW YORK WITH RESPECT TO ANY DISPUTE ARISING UNDER THIS AGREEMENT,
THE AGREEMENTS ENTERED INTO IN CONNECTION HEREWITH OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT
THAT IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE
ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR WITH ANY
TRANSACTION CONTEMPLATED HEREBY.
12.5
SEVERABILITY.
IF ANY PROVISION OF THIS AGREEMENT IS INVALID OR
UNENFORCEABLE UNDER ANY APPLICABLE STATUTE OR RULE OF LAW, THEN SUCH PROVISION
WILL BE DEEMED MODIFIED IN ORDER TO CONFORM WITH SUCH STATUTE OR RULE OF LAW.
ANY PROVISION HEREOF THAT MAY PROVE INVALID OR UNENFORCEABLE UNDER ANY LAW WILL
NOT AFFECT THE VALIDITY OR ENFORCEABILITY OF ANY OTHER PROVISION HEREOF.
12.6
ENTIRE AGREEMENT.
THIS AGREEMENT AND THE PURCHASE AGREEMENT
(INCLUDING ALL SCHEDULES AND EXHIBITS THERETO) CONSTITUTE THE ENTIRE