(WHETHER OR NOT SUCH PERSONS
HAVE REGISTRATION RIGHTS PURSUANT TO SECTION 4.1(D) HEREOF) MAY INCLUDE ITS OR
THEIR SECURITIES FOR ITS OR THEIR OWN ACCOUNT IN SUCH REGISTRATION IF THE
MANAGING UNDERWRITER OR UNDERWRITERS AND THE COMPANY SO AGREE AND IF THE NUMBER
OF REGISTRABLE SECURITIES AND OTHER SECURITIES WHICH WOULD OTHERWISE HAVE BEEN
INCLUDED IN SUCH REGISTRATION AND UNDERWRITING WILL NOT THEREBY BE LIMITED.
THE
COMPANY SHALL NOT BE OBLIGATED TO UNDERTAKE MORE THAN (I) ONE
17
UNDERWRITTEN OFFERING REQUESTED BY ANY OF THE BROOKFIELD INVESTORS PURSUANT TO
SECTIONS 4.1(B) AND 4.1(E) IN ANY 12-MONTH PERIOD, (II) ONE UNDERWRITTEN
OFFERING REQUESTED BY THE FAIRHOLME FUND PURSUANT TO SECTION 4.1(B) AND
4.1(E) IN ANY 12-MONTH PERIOD, AND (III) ONE UNDERWRITTEN OFFERING REQUESTED BY
ANY OF THE PERSHING INVESTORS PURSUANT TO SECTION 4.1(B) AND 4.1(E) IN ANY
12-MONTH PERIOD.
THE HOLDERS SHALL REASONABLY COOPERATE IN CONNECTION WITH
REQUESTS FOR UNDERWRITTEN OFFERINGS PURSUANT TO THIS SECTION 4.1(E) TO CAUSE THE
TOTAL NUMBER OF DAYS THAT THE COMPANY SHALL BE SUBJECT TO LOCK-UPS IN CONNECTION
WITH ANY SUCH UNDERWRITTEN OFFERINGS NOT TO EXCEED 120 DAYS IN ANY 365-DAY
PERIOD.
(F)
IF THE REGISTRATION OF WHICH THE COMPANY
GIVES NOTICE PURSUANT TO SECTION 4.1(D) IS FOR A REGISTERED PUBLIC OFFERING
INVOLVING AN UNDERWRITING, THE COMPANY SHALL SO ADVISE EACH OF THE HOLDERS AS A
PART OF THE WRITTEN NOTICE GIVEN PURSUANT TO SECTION 4.1(D) ABOVE.
IN SUCH
EVENT, THE RIGHT OF EACH OF THE HOLDERS TO REGISTRATION PURSUANT TO
SECTION 4.1(D) SHALL BE CONDITIONED UPON SUCH HOLDERS' PARTICIPATION IN SUCH
UNDERWRITING AND THE INCLUSION OF SUCH HOLDERS' REGISTRABLE SECURITIES IN THE
UNDERWRITING TO THE EXTENT PROVIDED HEREIN.
THE HOLDERS WHOSE REGISTRABLE
SECURITIES ARE TO BE INCLUDED IN SUCH REGISTRATION SHALL (TOGETHER WITH THE
COMPANY AND THE OTHER STOCKHOLDERS DISTRIBUTING THEIR SECURITIES THROUGH SUCH
UNDERWRITING) ENTER INTO AN UNDERWRITING AGREEMENT IN CUSTOMARY FORM WITH THE
MANAGING UNDERWRITER OR UNDERWRITERS SELECTED FOR UNDERWRITING BY THE COMPANY
(OTHER THAN A REGISTRATION PURSUANT TO SECTION 4.1(B) AND NOTIFIED BY THE
COMPANY PURSUANT TO SECTION 4.1(D)(Y), IN WHICH CASE SECTION 4.1(E) SHALL APPLY
WITH RESPECT TO THE SELECTION OF UNDERWRITERS); PROVIDED, HOWEVER, THAT SUCH
UNDERWRITING AGREEMENT SHALL NOT PROVIDE FOR INDEMNIFICATION OR CONTRIBUTION
OBLIGATIONS ON THE PART OF ANY HOLDER GREATER THAN THE OBLIGATIONS OF THE
HOLDERS UNDER SECTIONS 4.7(B) AND 4.8.
NOTWITHSTANDING ANY OTHER PROVISION OF
SECTION 4.1(D), IF ANY REGISTRATION IN RESPECT OF WHICH ANY HOLDER IS EXERCISING
ITS RIGHTS UNDER SECTION 4.1(D) INVOLVES AN UNDERWRITTEN PUBLIC OFFERING (OTHER
THAN A REGISTRATION PURSUANT TO SECTION 4.1(B), IN WHICH CASE THE PROVISIONS
WITH RESPECT TO PRIORITY OF INCLUSION IN SUCH REGISTRATION SET FORTH IN
SECTION 4.1(E) SHALL APPLY) AND THE MANAGING UNDERWRITER OR UNDERWRITERS ADVISES
THE COMPANY THAT IN ITS VIEW MARKETING FACTORS REQUIRE A LIMITATION ON THE
NUMBER OF SECURITIES TO BE UNDERWRITTEN, THEN THERE SHALL BE INCLUDED IN SUCH
UNDERWRITTEN OFFERING THE NUMBER OR DOLLAR AMOUNT OF SECURITIES OF THE COMPANY
THAT IN THE OPINION OF THE MANAGING UNDERWRITER OR UNDERWRITERS CAN BE SOLD
WITHOUT