Common use of Covenants of the Company and the Selling Stockholder Clause in Contracts

Covenants of the Company and the Selling Stockholder. (a) The Company covenants and agrees as follows: (i) The Company shall prepare the Prospectus in a form approved by the Representatives and file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission's close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Securities Act. (ii) The Company shall promptly advise the Representatives in writing (A) when any amendment to the Registration Statement shall have become effective, (B) of any request by the Commission for any amendment of the Registration Statement or the Prospectus or for any additional information, (C) of the prevention or suspension of the use of any preliminary prospectus or the Prospectus or of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose and (D) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Company shall not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representatives a copy for its review prior to filing and shall not file any such proposed amendment or supplement to which the Representatives reasonably object. The Company shall use its best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. (iii) If, at any time when a prospectus relating to the Shares is required to be delivered under the Securities Act and the Rules, any event occurs as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend or supplement the Prospectus to comply with the Securities Act or the Rules, the Company promptly shall prepare and file with the Commission, subject to the second sentence of paragraph (ii) of this Section 7(a), an amendment or supplement which shall correct such statement or omission or an amendment which shall effect such compliance. (iv) The Company shall make generally available to its security holders and to the Representatives as soon as practicable, but not later than forty-five (45) days after the end of the twelve month period beginning at the end of the fiscal quarter of the Company during which the Effective Date occurs (or ninety (90) days if such twelve month period coincides with the Company's fiscal year), an earning statement (which need not be audited) of the Company, covering such twelve month period, which shall satisfy the provisions of Section 11(a) of the Securities Act or Rule 158 of the Rules. (v) The Company shall furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including all exhibits thereto and amendments thereof) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and all amendments thereof and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Rules, as many copies of any preliminary prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request. (vi) The Company shall cooperate with the Representatives and their counsel in endeavoring to qualify the Shares for offer and sale in connection with the offering under the laws of such jurisdictions as the Representatives may designate and shall maintain such qualifications in effect so long as required for the distribution of the Shares; provided, however, that the Company shall not be required in connection therewith, as a condition thereof, to qualify as a foreign corporation or to execute a general consent to service of process in any Jurisdiction or subject itself to taxation as doing business in any jurisdiction. (vii) The Company will comply with all applicable securities laws and other applicable laws, rules and regulations in each foreign jurisdiction in which the Directed Shares are offered in connection with the Friends and Family Program. (viii) For a period of five years after the date of this Agreement, the Company shall supply to the Representatives, and to each other Underwriter who may so request in writing, copies of such financial statements and other periodic and special reports as the Company may from time to time distribute generally to the holders of any class of its capital stock and to furnish to the Representatives a copy of each annual or other report it shall be required to file with the Commission (including the Report on Form SR required by Rule 463 of the Rules). (ix) Without the prior written consent of CIBC World Markets Corp., for a period of three hundred sixty-five (365) days after the date of this Agreement, the Company shall not issue, sell or register with the Commission (other than on Form S-8 or on any successor form), or otherwise dispose of, directly or indirectly, any equity securities of the Company (or any securities convertible into, exercisable for or exchangeable for equity securities of the convertible Company), except for the issuance of the Shares pursuant to the Registration Statement and the issuance of shares pursuant to the Company's existing stock option plans as described in the

Covenants of the Company and the Selling Stockholder. (a) The Company covenants and agrees as follows: (i) The Company shall prepare the Prospectus in a form approved by the Representatives and file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission's close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Securities Act. (ii) The Company shall promptly advise the Representatives in writing (A) when any amendment to the Registration Statement shall have become effective, (B) of any request by the Commission for any amendment of the Registration Statement or the Prospectus or for any additional information, (C) of the prevention or suspension of the use of any preliminary prospectus or the Prospectus or of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose and (D) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Company shall not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representatives a copy for its review prior to filing and shall not file any such proposed amendment or supplement to which the Representatives reasonably object. The Company shall use its best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. (iii) If, at any time when a prospectus relating to the Shares is required to be delivered under the Securities Act and the Rules, any event occurs as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend or supplement the Prospectus to comply with the Securities Act or the Rules, the Company promptly shall prepare and file with the Commission, subject to the second sentence of paragraph (ii) of this Section 7(a), an amendment or supplement which shall correct such statement or omission or an amendment which shall effect such compliance. (iv) The Company shall make generally available to its security holders and to the Representatives as soon as practicable, but not later than forty-five (45) days after the end of the twelve month period beginning at the end of the fiscal quarter of the Company during which the Effective Date occurs (or ninety (90) days if such twelve month period coincides with the Company's fiscal year), an earning statement (which need not be audited) of the Company, covering such twelve month period, which shall satisfy the provisions of Section 11(a) of the Securities Act or Rule 158 of the Rules. (v) The Company shall furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including all exhibits thereto and amendments thereof) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and all amendments thereof and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Rules, as many copies of any preliminary prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request. (vi) The Company shall cooperate with the Representatives and their counsel in endeavoring to qualify the Shares for offer and sale in connection with the offering under the laws of such jurisdictions as the Representatives may designate and shall maintain such qualifications in effect so long as required for the distribution of the Shares; provided, however, that the Company shall not be required in connection therewith, as a condition thereof, to qualify as a foreign corporation or to execute a general consent to service of process in any Jurisdiction or subject itself to taxation as doing business in any jurisdiction. (vii) The Company will comply with all applicable securities laws and other applicable laws, rules and regulations in each foreign jurisdiction in which the Directed Shares are offered in connection with the Friends and Family Program. (viii) For a period of five years after the date of this Agreement, the Company shall supply to the Representatives, and to each other Underwriter who may so request in writing, copies of such financial statements and other periodic and special reports as the Company may from time to time distribute generally to the holders of any class of its capital stock and to furnish to the Representatives a copy of each annual or other report it shall be required to file with the Commission (including the Report on Form SR required by Rule 463 of the Rules). (ixviii) Without the prior written consent of CIBC World Markets Corp., for a period of three hundred sixty-five (365) days after the date of this Agreement, the Company shall not issue, sell or register with the Commission (other than on Form S-8 or on any successor form), or otherwise dispose of, directly or indirectly, any equity securities of the Company (or any securities convertible into, exercisable for or exchangeable for equity securities of the convertible Company), except for the issuance of the Shares pursuant to the Registration Statement and the issuance of shares pursuant to the Company's existing stock option plans as described in the

Covenants of the Company and the Selling Stockholder. (a) The Company covenants and agrees as followswith the Underwriters that: (i) The If the Registration Statement has not yet been declared effective, the Company shall prepare will use its best efforts to cause the Registration Statement and any amendments thereto to become effective as promptly as possible, and if Rule 430A of the Regulations is used or the filing of the Prospectus in a form approved by the Representatives and file such Prospectus pursuant to is otherwise required under Rule 424(b) under of the Securities Act not later than the Commission's close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Securities Act.-13- T & K DRAFT 02/04/99 14 (ii) The Company shall promptly advise the Representatives in writing (A) when any amendment to the Registration Statement shall have and any amendments thereto become effective, (B) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information, (C) of the prevention mailing or suspension of the use delivery to the Commission for filing of any preliminary prospectus amendment of or supplement to the Registration Statement or the Prospectus or Prospectus, (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or of the institution initiation, or threatening the threatening, of any proceeding for that purpose proceedings therefor, (E) of the receipt of any comments from the Commission, and (DF) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such that purpose. The Company If the Commission shall not file propose or enter a stop order at any amendment of the Registration Statement or supplement to the Prospectus unless time, the Company has furnished the Representatives a copy for its review prior to filing and shall not file any such proposed amendment or supplement to which the Representatives reasonably object. The Company shall use its best efforts will make every reasonable effort to prevent the issuance of any such stop order and, if issued, to obtain the lifting of such order as soon as possible possible. The Company will not file any amendment to the withdrawal Registration Statement or any amendment of or supplement to the Prospectus (including any prospectus required to be filed pursuant to such Rule 424(b) and including the issuance or filing of any term sheet within the meaning of Rule 434 of the Regulations) that differs from the preliminary prospectus on file at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement to which the Representatives shall reasonably object in writing after being timely furnished in advance a copy thereof. (iiiii) If, If at any time when a prospectus relating to the Shares is required to be delivered under the Securities Act and the Rules, any event occurs shall have occurred as a result of which the Prospectus as then amended or supplemented would include any includes an untrue statement of a material fact or omit omits to state any material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made made, not misleading, or if it shall be necessary at any time to amend or supplement the Prospectus or Registration Statement to comply with the Securities Act or the RulesRegulations, the Company will notify the Representatives promptly shall and prepare and file with the Commission, subject to the second sentence of paragraph (ii) of this Section 7(a), Commission an appropriate amendment or supplement (in form and substance reasonably satisfactory to the Representatives) which shall will correct such statement or omission or an amendment which shall will effect such compliancecompliance and will use all reasonable efforts to have any amendment to the Registration Statement declared effective as soon as possible. (iviii) The Company shall will promptly deliver to the Representatives four signed copies of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver to each of the Underwriters such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as the Representatives may reasonably request. (v) The Company will make generally available (within the meaning of Section 11(a) of the Act) to its security holders and to the Representatives as soon as practicable, but not later than forty-five (45) 45 days after the end of its fiscal quarter in which the twelve month period beginning at the end first anniversary date of the fiscal quarter effective date of the Company during which the Effective Date occurs (or ninety (90) days if such twelve month period coincides with the Company's fiscal year)Registration Statement occurs, an earning earnings statement (which need not be audited) of the Company, covering such twelve month period, which shall satisfy in form complying with the provisions of Section 11(a) of the Securities Act or Rule 158 of the Rules. (vRegulations) The Company shall furnish to covering a period of at least twelve consecutive months beginning after the Representatives and counsel for the Underwriters, without charge, signed copies effective date of the Registration Statement (including all exhibits thereto and amendments thereof) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and all amendments thereof and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Rules, as many copies of any preliminary prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably requestStatement. (vi) The Company shall cooperate with During the Representatives and their counsel in endeavoring to qualify the Shares for offer and sale in connection with the offering under the laws of such jurisdictions as the Representatives may designate and shall maintain such qualifications in effect so long as required for the distribution of the Shares; provided, however, that the Company shall not be required in connection therewith, as a condition thereof, to qualify as a foreign corporation or to execute a general consent to service of process in any Jurisdiction or subject itself to taxation as doing business in any jurisdiction. (vii) The Company will comply with all applicable securities laws and other applicable laws, rules and regulations in each foreign jurisdiction in which the Directed Shares are offered in connection with the Friends and Family Program. (viii) For a period of five years after 90 days from the date of this Agreementthe Prospectus, the Company shall supply to the Representativeswill not, and to each other Underwriter who may so request in writing, copies of such financial statements and other periodic and special reports as the Company may from time to time distribute generally to the holders of any class of its capital stock and to furnish to the Representatives a copy of each annual or other report it shall be required to file with the Commission (including the Report on Form SR required by Rule 463 of the Rules). (ix) Without without the prior written consent of CIBC World Markets Corp.Bear, for a period of three hundred sixty-five (365) days after the date of this AgreementSteaxxx & Xo. Inc., the Company shall not issue, sell sell, offer or register with agree to sell, grant any option for the Commission (other than on Form S-8 or on any successor form)sale of, or otherwise dispose of, directly or indirectly, any equity securities Covered Securities (other than pursuant to employee stock option plans existing on, or upon the conversion or exchange of the Company (or any securities convertible into, exercisable for or exchangeable for equity securities outstanding as of, the date of this Agreement or pursuant to obligations existing on the convertible date of this Agreement to issue Covered Securities in connection with prior acquisitions made by the Company), except otherwise than hereunder or upon the exercise of presently outstanding stock options; provided, however, that during such period the Company may issue up to 1,000,000 shares of unregistered Common Stock in connection with the consummation of acquisitions provided that it gives prior written notice of any such issuances to Bear, Steaxxx & Xo. Inc. and provided further that each recipient of any such Covered Securities so issued in connection with any such acquisition shall agree in writing for the issuance benefit of the Underwriters, in form and substance reasonably satisfactory to Bear, Steaxxx & Xo. Inc., that all such Covered Securities shall remain subject to restrictions identical to those contained in this subsection (vi). (vii) During a period of three years from the effective date of the Registration Statement, the Company will furnish to the Representatives copies of (A) all reports to its stockholders; and (B) all reports, financial statements and proxy or information statements filed by the Company with the Commission, any national securities exchange or automated quotation system. (viii) The Company will apply the net proceeds from the sale of the Shares pursuant by it hereunder as set forth in "Use of Proceeds" in the Prospectus. (ix) The Company will cause the Shares to be sold by it hereunder to be approved, upon official notice of issuance, for listing on the Registration Statement and the issuance of shares pursuant to the Company's existing stock option plans as described in theNew York Stock Exchange.

Covenants of the Company and the Selling Stockholder. The Company and the Selling Stockholder, as the case may be, covenant with each Underwriter as follows: (a) The Company covenants will notify the Underwriters immediately, and agrees as follows: confirm the notice in writing, (i) The Company shall prepare of the Prospectus in a form approved by effectiveness of the Representatives Registration Statement, the 462(b) Registration Statement and file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission's close of business on the second business day following the execution and delivery of this Agreementany amendments thereto (including any post-effective amendments), or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Securities Act. (ii) The Company shall promptly advise of the Representatives in writing (A) when receipt of any amendment to comments from the Registration Statement shall have become effectiveCommission, (Biii) of any request by the Commission for any amendment of to the Registration Statement or any amendment or supplement to the Prospectus or for any additional information, and (Civ) of the prevention or suspension of the use of any preliminary prospectus or the Prospectus or of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening initiation of any proceeding proceedings for that purpose and (D) of the receipt by the Company of any notification with respect to or the suspension of the qualification of the Shares Securities for sale offering or sale, in any jurisdiction jurisdiction, or the threatening or initiation or threatening of any proceeding for such that purpose. The Company shall not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representatives a copy for its review prior to filing and shall not file any such proposed amendment or supplement to which the Representatives reasonably object. The Company shall use its best efforts will make every reasonable effort to prevent the issuance of any such stop order or any order preventing or suspending the use of any preliminary prospectus or suspending such qualification and, if any stop order or any order preventing or suspending the use of any preliminary prospectus or suspending such qualification is issued, to obtain as soon as the lifting thereof at the earliest possible the withdrawal thereofmoment. (iiib) If, at The Company will give the Underwriters notice of its intention to file or prepare any time when a prospectus relating amendment to the Shares Registration Statement (including any post-effective amendment), the 462(b) Registration Statement or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the prospectus on file at the Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be delivered under the Securities Act and the Rules, any event occurs as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit filed pursuant to state any material fact necessary to make the statements therein in the light Rule 424(b) of the circumstances under which they were made not misleading, or if it shall be necessary to amend or supplement the Prospectus to comply with the Securities 1933 Act or the Rules, the Company promptly shall prepare and file with the Commission, subject to the second sentence of paragraph (ii) of this Section 7(aRegulations), an will furnish the Underwriters with copies of any such amendment or supplement a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file any such amendment or supplement or use any such prospectus to which shall correct such statement or omission or an amendment which shall effect such compliance. (iv) The Company shall make generally available to its security holders and to counsel for the Representatives as soon as practicable, but not later than forty-five (45) days after the end of the twelve month period beginning at the end of the fiscal quarter of the Company during which the Effective Date occurs (or ninety (90) days if such twelve month period coincides with the Company's fiscal year), an earning statement (which need not be audited) of the Company, covering such twelve month period, which shall satisfy the provisions of Section 11(a) of the Securities Act or Rule 158 of the Rules. (v) The Company shall furnish to the Representatives Underwriters and counsel for the Underwriters, without charge, Company mutually agree shall not be filed or used. 8 9 (c) The Company will deliver to the Underwriters one signed copy of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein) and will also deliver to the Underwriters conformed copies of the Registration Statement (including all exhibits as originally filed and of each amendment thereto and amendments thereof) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and all amendments thereof and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Rules, as many copies of any preliminary prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request. (vi) The Company shall cooperate with the Representatives and their counsel in endeavoring to qualify the Shares for offer and sale in connection with the offering under the laws of such jurisdictions as the Representatives may designate and shall maintain such qualifications in effect so long as required for the distribution of the Shares; provided, however, that the Company shall not be required in connection therewith, as a condition thereof, to qualify as a foreign corporation or to execute a general consent to service of process in any Jurisdiction or subject itself to taxation as doing business in any jurisdiction. (vii) The Company will comply with all applicable securities laws and other applicable laws, rules and regulations in each foreign jurisdiction in which the Directed Shares are offered in connection with the Friends and Family Program. (viii) For a period of five years after the date of this Agreement, the Company shall supply to the Representatives, and to each other Underwriter who may so request in writing, copies of such financial statements and other periodic and special reports as the Company may from time to time distribute generally to the holders of any class of its capital stock and to furnish to the Representatives a copy of each annual or other report it shall be required to file with the Commission (including the Report on Form SR required by Rule 463 of the Rulesexhibits). (ix) Without the prior written consent of CIBC World Markets Corp., for a period of three hundred sixty-five (365) days after the date of this Agreement, the Company shall not issue, sell or register with the Commission (other than on Form S-8 or on any successor form), or otherwise dispose of, directly or indirectly, any equity securities of the Company (or any securities convertible into, exercisable for or exchangeable for equity securities of the convertible Company), except for the issuance of the Shares pursuant to the Registration Statement and the issuance of shares pursuant to the Company's existing stock option plans as described in the