BROKER-DEALERS, ATTORNEYS OR ACCOUNTANTS IN CONNECTION WITH SUCH DISPOSITION, IN
EACH CASE AS IS CUSTOMARY FOR SIMILAR "DUE DILIGENCE" EXAMINATIONS; PROVIDED,
HOWEVER, THAT SUCH PERSONS SHALL, AT THE COMPANY'S REQUEST, FIRST AGREE IN
WRITING WITH THE COMPANY THAT SUCH PERSON WILL NOT ENGAGE IN ANY TRANSACTION
INVOLVING SECURITIES OF THE COMPANY IN VIOLATION OF APPLICABLE LAW (INCLUDING,
WITHOUT LIMITATION, FEDERAL SECURITIES LAWS PROHIBITING TRADING ON THE BASIS OF
MATERIAL NON-PUBLIC INFORMATION) AND THAT ANY INFORMATION THAT IS REASONABLY AND
IN GOOD FAITH DESIGNATED BY THE COMPANY IN WRITING AS CONFIDENTIAL AT THE TIME
OF DELIVERY OF SUCH INFORMATION SHALL BE KEPT CONFIDENTIAL BY SUCH PERSONS AND
SHALL BE USED SOLELY FOR THE PURPOSES OF EXERCISING RIGHTS UNDER THIS AGREEMENT,
UNLESS (I) DISCLOSURE OF SUCH INFORMATION IS REQUIRED BY COURT OR ADMINISTRATIVE
ORDER OR IS NECESSARY TO RESPOND TO INQUIRIES OF GOVERNMENTAL OR REGULATORY
AUTHORITIES, (II) DISCLOSURE OF SUCH INFORMATION IS REQUIRED BY LAW (INCLUDING
ANY DISCLOSURE REQUIREMENTS PURSUANT TO FEDERAL SECURITIES LAWS IN CONNECTION
WITH THE FILING OF ANY SHELF REGISTRATION STATEMENT OR THE USE OF ANY PROSPECTUS
REFERRED TO IN THIS AGREEMENT) OR NECESSARY TO DEFEND OR PROSECUTE A CLAIM
BROUGHT AGAINST OR BY ANY SUCH PERSONS (E.G., TO ESTABLISH A "DUE DILIGENCE"
DEFENSE), (III) SUCH INFORMATION BECOMES GENERALLY AVAILABLE TO THE PUBLIC OTHER
THAN AS A RESULT OF A DISCLOSURE OR FAILURE TO SAFEGUARD BY ANY SUCH PERSON OR
(IV) SUCH INFORMATION BECOMES AVAILABLE TO ANY SUCH PERSON FROM A SOURCE OTHER
THAN THE COMPANY AND SUCH SOURCE IS NOT BOUND BY A CONFIDENTIALITY AGREEMENT OR
IS NOT OTHERWISE UNDER A DUTY OF TRUST TO THE COMPANY; PROVIDED FURTHER, THAT
THE FOREGOING INSPECTION AND INFORMATION GATHERING SHALL,
18
TO THE GREATEST EXTENT POSSIBLE, BE COORDINATED ON BEHALF OF ALL THE NOTICE
HOLDERS AND THE OTHER PARTIES ENTITLED THERETO BY THE COUNSEL, REFERRED TO IN
SECTION 5, FOR THE HOLDERS IN CONNECTION WITH SHELF REGISTRATION STATEMENTS.
(M)
COMPLY IN ALL MATERIAL RESPECTS WITH ALL APPLICABLE RULES AND
REGULATIONS OF THE SEC; AND MAKE GENERALLY AVAILABLE TO ITS SECURITYHOLDERS
EARNINGS STATEMENTS (WHICH NEED NOT BE AUDITED) SATISFYING THE PROVISIONS OF
SECTION 11(A) OF THE SECURITIES ACT AND RULE 158 THEREUNDER (OR ANY SIMILAR RULE
PROMULGATED UNDER THE SECURITIES ACT), WHICH STATEMENTS SHALL COVER A PERIOD OF
TWELVE (12) MONTHS COMMENCING ON THE FIRST DAY OF THE FIRST FISCAL QUARTER OF
THE COMPANY COMMENCING AFTER THE EFFECTIVE DATE OF EACH SHELF REGISTRATION
STATEMENT (WITHIN THE MEANING OF RULE 158(C) UNDER THE SECURITIES ACT), AND
WHICH STATEMENTS SHALL BE SO MADE GENERALLY AVAILABLE TO THE COMPANY'S
SECURITYHOLDERS AS FOLLOWS: (I) WITH RESPECT TO AN EARNINGS STATEMENT WHICH WILL
BE CONTAINED IN ONE REPORT ON FORM 10-K (OR ANY OTHER FORM AS MAY THEN BE
AVAILABLE FOR SUCH PURPOSE), SUCH EARNINGS STATEMENT SHALL BE MADE SO GENERALLY
AVAILABLE NO LATER THAN THE DUE DATE BY WHICH THE COMPANY IS REQUIRED, PURSUANT
TO THE EXCHANGE ACT (SUBJECT TO ANY APPLICABLE EXTENSIONS UNDER RULE 12B-25
THEREUNDER), TO FILE SUCH REPORT WITH THE SEC; AND