AGREEMENT
AND WILL TERMINATE AT THE EARLIER OF THE CLOSING OF THE OFFERING OR 11:59 P.M.
(NEW YORK TIME) ON THE FIFTH BUSINESS DAY AFTER THE DATE HEREOF.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, ANY PROVISION IN THIS
AGREEMENT CONCERNING OR RELATING TO CONFIDENTIALITY, INDEMNIFICATION,
CONTRIBUTION, ADVANCEMENT, THE COMPANY'S REPRESENTATIONS AND WARRANTIES AND THE
COMPANY'S OBLIGATIONS TO PAY FEES AND REIMBURSE EXPENSES WILL SURVIVE ANY
EXPIRATION OR TERMINATION OF THIS AGREEMENT.
IF ANY CONDITION SPECIFIED IN
SECTION 8 IS NOT SATISFIED WHEN AND AS REQUIRED TO BE SATISFIED, THIS AGREEMENT
MAY BE TERMINATED BY THE PLACEMENT AGENT BY NOTICE TO THE COMPANY AT ANY TIME ON
OR PRIOR TO A CLOSING DATE, WHICH TERMINATION SHALL BE WITHOUT LIABILITY ON THE
PART OF ANY PARTY TO ANY OTHER PARTY, EXCEPT THAT THOSE PORTIONS OF THIS
AGREEMENT SPECIFIED IN SECTION 19 SHALL AT ALL TIMES BE EFFECTIVE AND SHALL
SURVIVE SUCH TERMINATION. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS
AGREEMENT, IN THE EVENT THAT THIS AGREEMENT SHALL NOT BE CARRIED OUT FOR ANY
REASON WHATSOEVER, WITHIN THE TIME SPECIFIED HEREIN OR ANY EXTENSIONS THEREOF
PURSUANT TO THE TERMS HEREIN, THE COMPANY SHALL BE OBLIGATED TO PAY TO THE
PLACEMENT AGENT THE EXPENSES PROVIDED FOR IN SECTION 2.B. ABOVE AND UPON DEMAND
THE COMPANY SHALL PAY THE FULL AMOUNT THEREOF TO THE PLACEMENT AGENT.
6.
PERMITTED ACTS.
NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED TO LIMIT THE ABILITY OF THE
PLACEMENT AGENT, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ASSOCIATED PERSONS
AND ANY INDIVIDUAL OR ENTITY "CONTROLLING," CONTROLLED BY," OR "UNDER COMMON
CONTROL" WITH THE PLACEMENT AGENT (AS THOSE TERMS ARE DEFINED IN RULE 405 UNDER
THE SECURITIES ACT) TO CONDUCT ITS BUSINESS INCLUDING WITHOUT LIMITATION THE
ABILITY TO PURSUE, INVESTIGATE, ANALYZE, INVEST IN, OR ENGAGE IN INVESTMENT
BANKING, FINANCIAL ADVISORY OR ANY OTHER BUSINESS RELATIONSHIP WITH ANY
INDIVIDUAL OR CORPORATION, PARTNERSHIP, TRUST, INCORPORATED OR UNINCORPORATED
ASSOCIATION, JOINT VENTURE, LIMITED LIABILITY COMPANY, JOINT STOCK COMPANY,
GOVERNMENT (OR AN AGENCY OR SUBDIVISION THEREOF) OR OTHER ENTITY OF ANY KIND.
7.
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY.
AS OF THE DATE AND TIME OF THE EXECUTION OF THIS AGREEMENT, THE CLOSING DATE AND
THE INITIAL SALE TIME (AS DEFINED HEREIN), THE COMPANY REPRESENTS, WARRANTS AND
COVENANTS TO THE PLACEMENT AGENT, OTHER THAN AS DISCLOSED IN ANY OF ITS FILINGS
WITH THE SECURITIES AND EXCHANGE COMMISSION (THE "COMMISSION"), THAT:
A.
REGISTRATION MATTERS.
I.
THE COMPANY HAS FILED WITH
THE COMMISSION A REGISTRATION STATEMENT ON FORM S-3 (FILE NO. 333-213321)
INCLUDING A RELATED PROSPECTUS, FOR THE REGISTRATION OF CERTAIN SECURITIES (THE
"SHELF SECURITIES"), INCLUDING THE SHARES, UNDER THE SECURITIES ACT, AND THE
RULES AND REGULATIONS THEREUNDER (THE "SECURITIES ACT REGULATIONS").
THE
REGISTRATION STATEMENT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT BY
THE COMMISSION.
THE "REGISTRATION STATEMENT," AS OF ANY TIME, MEANS SUCH
REGISTRATION STATEMENT AS AMENDED BY ANY POST-EFFECTIVE AMENDMENTS THERETO TO
SUCH TIME, INCLUDING THE EXHIBITS AND ANY SCHEDULES THERETO AT SUCH TIME, THE
DOCUMENTS INCORPORATED OR DEEMED TO BE INCORPORATED BY REFERENCE THEREIN AT