OF AUDITING STANDARDS NO. 72.
FOR PURPOSES
OF DETERMINING THE HOLDERS OF A MAJORITY OF THE REGISTRABLE SECURITIES IN THIS
PARAGRAPH (P) AND IN PARAGRAPHS (N) AND (O)
9
ABOVE, HOLDERS OF NOTES SHALL BE DEEMED TO BE THE HOLDERS OF THE NUMBER OF
SHARES OF UNDERLYING COMMON STOCK INTO WHICH SUCH NOTES ARE OR WOULD BE
CONVERTIBLE AS OF THE RELEVANT DATE.
5.
HOLDER'S OBLIGATIONS.
EACH HOLDER
AGREES, BY ACQUISITION OF THE REGISTRABLE SECURITIES, THAT NO HOLDER SHALL BE
ENTITLED TO SELL ANY OF SUCH REGISTRABLE SECURITIES PURSUANT TO A REGISTRATION
STATEMENT OR TO RECEIVE A PROSPECTUS RELATING THERETO, UNLESS SUCH HOLDER HAS
FURNISHED THE COMPANY WITH A NOTICE AND QUESTIONNAIRE AS REQUIRED PURSUANT TO
SECTION 2(D) HEREOF (INCLUDING THE INFORMATION REQUIRED TO BE INCLUDED IN SUCH
NOTICE AND QUESTIONNAIRE) AND THE INFORMATION SET FORTH IN THE NEXT SENTENCE.
EACH NOTICE HOLDER AGREES PROMPTLY TO FURNISH TO THE COMPANY ALL INFORMATION
REQUIRED TO BE DISCLOSED IN ORDER TO MAKE THE INFORMATION PREVIOUSLY FURNISHED
TO THE COMPANY BY SUCH NOTICE HOLDER NOT MISLEADING.
6.
REGISTRATION EXPENSES.
THE COMPANY
WILL BEAR ALL EXPENSES INCURRED IN CONNECTION WITH THE PERFORMANCE OF ITS
OBLIGATIONS UNDER SECTIONS 2, 3 AND 4 HEREOF AND THE COMPANY WILL REIMBURSE THE
INITIAL PURCHASERS AND THE HOLDERS FOR THE REASONABLE FEES AND DISBURSEMENTS OF
THE SPECIAL COUNSEL, AS AND WHEN INCURRED; PROVIDED, HOWEVER, THAT THE COMPANY
SHALL IN NO EVENT PAY THE REASONABLE FEES AND DISBURSEMENTS OF MORE THAN ONE
FIRM OF COUNSEL FOR THE INITIAL PURCHASERS AND THE HOLDERS.
IN NO EVENT SHALL
THE COMPANY REIMBURSE THE HOLDERS FOR ANY UNDERWRITING DISCOUNTS AND COMMISSIONS
AND TRANSFER TAXES, IF ANY, RELATING TO THE SALE OR DISPOSITION OF ANY
REGISTRABLE SECURITIES.
7.
INDEMNIFICATION.
(A)
INDEMNIFICATION OF HOLDERS.
THE COMPANY
SHALL INDEMNIFY AND HOLD HARMLESS EACH HOLDER (INCLUDING THE INITIAL PURCHASERS)
AND EACH PERSON, IF ANY, WHO CONTROLS SUCH HOLDER WITHIN THE MEANING OF THE
SECURITIES ACT (COLLECTIVELY REFERRED TO FOR THE PURPOSES OF THIS SECTION 7 AS A
HOLDER) AGAINST ANY LOSS, CLAIM, DAMAGE OR LIABILITY, JOINT OR SEVERAL, OR ANY
ACTION IN RESPECT THEREOF (INCLUDING, WITHOUT LIMITATION, ANY LOSS, CLAIM,
DAMAGE, LIABILITY OR ACTION RELATING TO PURCHASES AND SALES OF REGISTRABLE
SECURITIES), TO WHICH THAT HOLDER MAY BECOME SUBJECT, UNDER THE SECURITIES ACT
OR OTHERWISE, INSOFAR AS SUCH LOSS, CLAIM, DAMAGE, LIABILITY OR ACTION ARISES
OUT OF OR IS BASED UPON (I) ANY UNTRUE STATEMENT OR ALLEGED UNTRUE STATEMENT OF
A MATERIAL FACT CONTAINED IN ANY REGISTRATION STATEMENT OR PROSPECTUS OR IN ANY
AMENDMENT OR SUPPLEMENT THERETO OR (II) THE OMISSION OR ALLEGED OMISSION TO
STATE IN ANY REGISTRATION STATEMENT OR ANY PROSPECTUS OR IN ANY AMENDMENT OR
SUPPLEMENT THERETO A MATERIAL FACT REQUIRED TO BE STATED THEREIN OR NECESSARY TO
MAKE THE STATEMENTS THEREIN (IN THE CASE OF ANY PROSPECTUS, IN THE LIGHT OF THE
CIRCUMSTANCES UNDER WHICH THEY WERE MADE) NOT MISLEADING, AND SHALL REIMBURSE
EACH HOLDER FOR ANY LEGAL OR OTHER EXPENSES REASONABLY INCURRED BY THAT HOLDER
IN CONNECTION WITH INVESTIGATING OR PREPARING TO