COMPANY SHALL
USE ITS REASONABLE BEST EFFORTS TO FILE THE REPORTS REQUIRED TO BE FILED BY IT
UNDER THE SECURITIES ACT AND THE EXCHANGE ACT IN A TIMELY MANNER AND, IF AT ANY
TIME THE COMPANY IS NOT REQUIRED TO FILE SUCH REPORTS, IT WILL, UPON THE WRITTEN
REQUEST OF ANY HOLDER, MAKE PUBLICLY AVAILABLE OTHER INFORMATION SO LONG AS
NECESSARY TO PERMIT SALES OF SUCH HOLDER'S SECURITIES PURSUANT TO RULES 144 AND
144A.
THE COMPANY COVENANTS THAT IT WILL TAKE SUCH FURTHER ACTION AS ANY HOLDER
MAY REASONABLY REQUEST, ALL TO THE EXTENT REQUIRED FROM TIME TO TIME TO ENABLE
SUCH HOLDER TO SELL REGISTRABLE SECURITIES WITHOUT REGISTRATION UNDER THE
SECURITIES ACT WITHIN THE LIMITATION OF THE EXEMPTIONS PROVIDED BY RULES 144 AND
144A (INCLUDING, WITHOUT LIMITATION, THE REQUIREMENTS OF RULE 144A(D)(4)).
UPON
THE WRITTEN REQUEST OF ANY HOLDER, THE COMPANY SHALL DELIVER TO SUCH HOLDER A
WRITTEN STATEMENT AS TO WHETHER IT HAS COMPLIED WITH SUCH REQUIREMENTS.
NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS SECTION 8 SHALL BE DEEMED TO
REQUIRE THE COMPANY TO REGISTER ANY OF ITS SECURITIES PURSUANT TO THE EXCHANGE
ACT.
9.
UNDERWRITTEN REGISTRATIONS.
IF ANY OF
THE REGISTRABLE SECURITIES COVERED BY ANY SHELF REGISTRATION STATEMENT ARE TO BE
SOLD IN AN UNDERWRITTEN OFFERING, THE INVESTMENT BANKER OR INVESTMENT BANKERS
AND MANAGER OR MANAGERS THAT WILL ADMINISTER THE OFFERING WILL BE SELECTED BY
THE HOLDERS OF A MAJORITY IN AGGREGATE PRINCIPAL AMOUNT OF SUCH REGISTRABLE
SECURITIES INCLUDED IN SUCH OFFERING, SUBJECT TO THE CONSENT OF THE COMPANY
(WHICH SHALL NOT BE UNREASONABLY WITHHELD OR DELAYED), AND SUCH HOLDERS SHALL BE
RESPONSIBLE FOR ALL UNDERWRITING COMMISSIONS AND DISCOUNTS IN CONNECTION
THEREWITH.
12
10.
MISCELLANEOUS.
(A)
AMENDMENTS AND WAIVERS.
THE PROVISIONS OF
THIS AGREEMENT, INCLUDING THE PROVISIONS OF THIS SENTENCE, MAY NOT BE AMENDED,
MODIFIED OR SUPPLEMENTED, AND WAIVERS OR CONSENTS TO DEPARTURES FROM THE
PROVISIONS HEREOF MAY NOT BE GIVEN, UNLESS THE COMPANY HAS OBTAINED THE WRITTEN
CONSENT OF HOLDERS OF A MAJORITY OF THE THEN OUTSTANDING UNDERLYING COMMON STOCK
CONSTITUTING REGISTRABLE SECURITIES (WITH HOLDERS OF NOTES DEEMED TO BE THE
HOLDERS, FOR PURPOSES OF THIS SECTION 10(A), OF THE NUMBER OF OUTSTANDING SHARES
OF UNDERLYING COMMON STOCK INTO WHICH SUCH NOTES ARE OR WOULD BE CONVERTIBLE AS
OF THE DATE ON WHICH SUCH CONSENT IS REQUESTED).
NOTWITHSTANDING THE FOREGOING,
A WAIVER OR CONSENT TO DEPART FROM THE PROVISIONS HEREOF WITH RESPECT TO A
MATTER THAT RELATES EXCLUSIVELY TO THE RIGHTS OF HOLDERS WHOSE SECURITIES ARE
BEING SOLD PURSUANT TO A REGISTRATION STATEMENT AND THAT DOES NOT DIRECTLY OR
INDIRECTLY AFFECT THE RIGHTS OF OTHER HOLDERS MAY BE GIVEN BY HOLDERS OF AT
LEAST A MAJORITY OF THE REGISTRABLE SECURITIES BEING SOLD BY SUCH HOLDERS
PURSUANT TO SUCH REGISTRATION STATEMENT; PROVIDED THAT THE PROVISIONS OF THIS
SENTENCE MAY NOT BE AMENDED, MODIFIED OR SUPPLEMENTED EXCEPT IN ACCORDANCE WITH
THE PROVISIONS OF THE IMMEDIATELY PRECEDING SENTENCE, AND PROVIDED FURTHER THAT
NO MODIFICATION MAY CHANGE THE PROVISIONS RELATING TO THE PAYMENT OF ADDITIONAL
INTEREST WITHOUT THE CONSENT OF