AND, SUBJECT TO SECTION 5 HEREOF,
EXPENSES OF THEIR OWN COUNSEL.
THE COMPANY SHALL BE ENTITLED TO SELECT AND
MANAGE THE PRINTER FOR SUCH OFFERING AND ANY OTHER VENDORS WHOSE EXPENSES THE
COMPANY IS OBLIGATED TO PAY.
THE COMPANY SHALL PAY ALL EXPENSES CUSTOMARILY
BORNE BY ISSUERS IN AN UNDERWRITTEN OFFERING, INCLUDING BUT NOT LIMITED TO
FILING FEES, THE FEES AND DISBURSEMENTS OF ITS COUNSEL AND INDEPENDENT PUBLIC
ACCOUNTANTS AND ANY PRINTING EXPENSES INCURRED IN CONNECTION WITH SUCH
UNDERWRITTEN OFFERING (WHICH EXPENSES SHALL NOT EXCEED $150,000 IN THE
AGGREGATE).
NOTWITHSTANDING THE FOREGOING OR THE PROVISIONS OF SECTION 4(B)(IX)
HEREOF, UPON RECEIPT OF A REQUEST FROM THE MANAGING UNDERWRITER OR A
REPRESENTATIVE OF HOLDERS OF A MAJORITY OF THE TRANSFER RESTRICTED SECURITIES TO
BE INCLUDED IN AN UNDERWRITTEN OFFERING TO PREPARE AND FILE AN AMENDMENT OR
SUPPLEMENT TO THE SHELF REGISTRATION STATEMENT AND PROSPECTUS IN CONNECTION WITH
AN UNDERWRITTEN OFFERING, THE COMPANY MAY DELAY ITS PARTICIPATION IN THE
UNDERWRITTEN OFFERING, INCLUDING, WITHOUT LIMITATION, THE FILING OF ANY SUCH
AMENDMENT OR SUPPLEMENT FOR UP TO 90 DAYS IF THE BOARD OF DIRECTORS OF THE
COMPANY SHALL HAVE DETERMINED IN GOOD FAITH THAT THE COMPANY HAS A BONA FIDE
BUSINESS REASON FOR SUCH DELAY.
8.
MISCELLANEOUS.
(A)
REMEDIES.
THE COMPANY ACKNOWLEDGES AND AGREES THAT ANY FAILURE BY THE
COMPANY TO COMPLY WITH ITS OBLIGATIONS UNDER SECTION 2 HEREOF MAY RESULT IN
MATERIAL IRREPARABLE INJURY TO THE INITIAL PURCHASER OR THE HOLDERS FOR WHICH
THERE IS NO ADEQUATE REMEDY AT LAW, THAT IT WILL NOT BE POSSIBLE TO MEASURE
DAMAGES FOR SUCH INJURIES PRECISELY AND THAT, IN THE EVENT OF ANY SUCH FAILURE,
THE INITIAL PURCHASER OR ANY HOLDER MAY OBTAIN SUCH RELIEF AS MAY BE REQUIRED TO
SPECIFICALLY ENFORCE THE COMPANY'S OBLIGATIONS UNDER SECTION 2 HEREOF; PROVIDED,
THAT SPECIFIC PERFORMANCE SHALL BE THE SOLE EQUITABLE REMEDY AVAILABLE TO
HOLDERS HEREUNDER.
THE COMPANY FURTHER AGREES TO WAIVE THE DEFENSE IN ANY
ACTION FOR SPECIFIC PERFORMANCE THAT A REMEDY AT LAW WOULD BE ADEQUATE.
(B)
ACTIONS AFFECTING TRANSFER RESTRICTED SECURITIES.
THE COMPANY SHALL NOT,
DIRECTLY OR INDIRECTLY, TAKE ANY ACTION WITH RESPECT TO THE TRANSFER RESTRICTED
SECURITIES AS A CLASS THAT WOULD ADVERSELY AFFECT THE ABILITY OF THE HOLDERS OF
TRANSFER RESTRICTED SECURITIES TO INCLUDE SUCH TRANSFER RESTRICTED SECURITIES IN
A REGISTRATION UNDERTAKEN PURSUANT TO THIS AGREEMENT.
(C)
NO INCONSISTENT AGREEMENTS.
THE COMPANY WILL NOT, ON OR AFTER THE DATE OF
THIS AGREEMENT, ENTER INTO ANY AGREEMENT WITH RESPECT TO ITS SECURITIES THAT IS
INCONSISTENT WITH THE RIGHTS GRANTED TO THE HOLDERS IN THIS AGREEMENT OR
OTHERWISE CONFLICTS WITH THE PROVISIONS HEREOF.
IN ADDITION, THE COMPANY SHALL
NOT GRANT TO ANY OF ITS SECURITY HOLDERS (OTHER THAN THE HOLDERS OF TRANSFER
RESTRICTED SECURITIES IN SUCH CAPACITY) THE RIGHT TO INCLUDE ANY OF ITS
SECURITIES IN THE SHELF REGISTRATION STATEMENT OR THE ADDITIONAL SHELF
REGISTRATION STATEMENT, AS
21
applicable, provided for in this Agreement other than the Transfer Restricted
Securities.
The Company has not previously entered into any agreement (which
has not expired or been