are
required in connection with the Investor Parties' investment in the Company, the
Company shall take all action reasonably requested by the Investor Parties in
connection therewith and otherwise cooperate with the Investor Parties in making
such filings and/or notices and any fees, costs and expenses of the Investor
Parties in connection therewith shall be borne 50% by the Company and 50% by the
Investor Parties.
Damages suffered by the Investor Parties for a breach of this
Agreement shall in no way be limited by the amounts described in this Section
3.8.
3.9
Information Rights.
From the date hereof,
until the date when the Investor Parties hold less than 10% of the outstanding
Common Stock (including for this purpose shares of Common Stock issuable upon
exercise of the Warrant or any other warrants, options or similar rights held by
the Investor):
13
(A)
THE COMPANY SHALL PERMIT THE INVESTOR
PARTIES, UPON REASONABLE NOTICE AND DURING NORMAL BUSINESS HOURS, TO (I) VISIT
AND INSPECT ANY OF THE PROPERTIES OF THE COMPANY AND ITS SUBSIDIARIES,
(II) EXAMINE THE CORPORATE AND FINANCIAL RECORDS OF THE COMPANY AND ITS
SUBSIDIARIES AND MAKE COPIES THEREOF OR EXTRACTS THEREFROM AND (III) DISCUSS THE
AFFAIRS, FINANCES AND ACCOUNTS OF ANY SUCH CORPORATIONS WITH THE DIRECTORS,
OFFICERS (INCLUDING THE CHIEF FINANCIAL OFFICER), KEY EMPLOYEES AND INDEPENDENT
ACCOUNTANTS OF THE COMPANY AND ITS SUBSIDIARIES.
IN ADDITION, THE COMPANY SHALL
WITH REASONABLE PROMPTNESS PROVIDE THE INVESTOR PARTIES WITH SUCH OTHER
INFORMATION, REPORTS AND FINANCIAL DATA CONCERNING THE COMPANY AND ITS
SUBSIDIARIES AS MAY BE REASONABLY REQUESTED BY THE INVESTOR PARTIES FROM TIME TO
TIME.
FOR THE AVOIDANCE OF DOUBT, THE COMPANY AGREES AND ACKNOWLEDGES THAT SUCH
REQUESTS SHALL INCLUDE THE PROVISION OF REGULAR REPORTS TO THE INVESTOR PARTIES,
WHICH REPORTS SHALL INCLUDE SUBSTANTIALLY THE SAME INFORMATION AND FINANCIAL
DATA TYPICALLY PROVIDED TO THE INVESTOR PARTIES BY PORTFOLIO COMPANIES OF THE
INVESTOR PARTIES, A FORM OF WHICH HAS BEEN PROVIDED TO THE COMPANY.
THE
PRESENTATION OF AN EXECUTED COPY OF THIS AGREEMENT BY THE INVESTOR TO THE
COMPANY'S INDEPENDENT ACCOUNTANTS SHALL CONSTITUTE THE COMPANY'S PERMISSION TO
ITS INDEPENDENT ACCOUNTANTS TO PARTICIPATE IN DISCUSSIONS WITH SUCH PERSONS.
(B)
WHETHER OR NOT ANY INVESTOR PARTY IS A
LENDER TO THE COMPANY AT SUCH TIME, CONCURRENTLY WITH THE DELIVERY THEREOF TO
THE COMPANY'S OR ANY OF ITS SUBSIDIARIES' LENDER(S), THE COMPANY SHALL DELIVER
TO THE INVESTOR PARTIES A COPY OF ALL FINANCIAL AND OTHER INFORMATION REPORTS
FURNISHED TO SUCH LENDER(S).
3.10
No Impairment.
The Company shall not by any
action, including through any amendment to its certificate of incorporation,
through any reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary action, avoid or
seek to avoid the observance or performance of any of the terms of this
Agreement or any other Transaction Document or any other agreement between the
Company and any Investor Party in place from time to time, but will at all times
in good faith assist in carrying out all such actions as