CONNECTION WITH ANY PERMITTED EQUITY OFFERING (AS DEFINED IN THE PURCHASE
AGREEMENT) (IT BEING UNDERSTOOD THAT, WITHOUT LIMITING THE RIGHTS OF THE HOLDERS
HEREUNDER, THE REGISTRATION RIGHTS GRANTED TO ANY PERSON PURSUANT TO THIS
SENTENCE SHALL NOT RESTRICT THE ABILITY OF THE HOLDERS TO, AND SHALL PROVIDE FOR
THE RIGHT OF THE HOLDERS TO, PARTICIPATE ON A PRO RATA BASIS WITH SUCH PERSON IN
ANY DEMAND OR INCIDENTAL REGISTRATION INITIATED BY SUCH PERSON PURSUANT TO THE
RIGHTS GRANTED UNDER THIS SENTENCE).
NOTWITHSTANDING THE FOREGOING, SO LONG AS
THE HOLDERS HOLD REGISTRABLE SECURITIES, THE COMPANY SHALL NOT ENTER INTO ANY
AGREEMENT GRANTING A HOLDER OR PROSPECTIVE HOLDER OF SECURITIES
18
OF THE COMPANY REGISTRATION RIGHTS THAT ARE SENIOR TO THE RIGHTS OF THE HOLDERS
HEREUNDER AND IF, AFTER THE DATE OF THIS AGREEMENT, THE COMPANY ENTERS INTO ANY
OTHER AGREEMENT WITH RESPECT TO THE REGISTRATION OF ANY OF ITS EQUITY
SECURITIES, AND THE TERMS CONTAINED THEREIN ARE MORE FAVORABLE TO, OR LESS
RESTRICTIVE ON, THE OTHER PARTY THERETO THAN THE TERMS AND CONDITIONS CONTAINED
IN THIS AGREEMENT (INSOFAR AS THEY ARE APPLICABLE) WITH RESPECT TO THE HOLDERS,
THEN THE TERMS OF THIS AGREEMENT SHALL IMMEDIATELY BE DEEMED TO HAVE BEEN
AMENDED WITHOUT FURTHER ACTION BY THE COMPANY OR THE HOLDERS SO THAT THE HOLDERS
SHALL BE ENTITLED TO THE BENEFIT OF ANY SUCH MORE FAVORABLE OR LESS RESTRICTIVE
TERMS OR CONDITIONS.
3.2.
NO INCONSISTENT AGREEMENTS.
THE COMPANY WILL
NOT, ON OR AFTER THE DATE OF THIS AGREEMENT, ENTER INTO ANY AGREEMENT WITH
RESPECT TO ITS SECURITIES WHICH IS INCONSISTENT WITH THE RIGHTS GRANTED TO THE
HOLDERS IN SECTION 2 OR OTHERWISE CONFLICTS WITH THE PROVISIONS OF SECTION 2,
OTHER THAN ANY CUSTOMARY LOCK-UP AGREEMENT WITH THE UNDERWRITERS IN CONNECTION
WITH ANY OFFERING EFFECTED HEREUNDER, PURSUANT TO WHICH THE COMPANY SHALL AGREE
NOT TO REGISTER FOR SALE, AND THE COMPANY SHALL AGREE NOT TO SELL OR OTHERWISE
DISPOSE OF, COMMON STOCK OR ANY SECURITIES CONVERTIBLE INTO OR EXERCISABLE OR
EXCHANGEABLE FOR COMMON STOCK, FOR A SPECIFIED PERIOD (NOT TO EXCEED 180 DAYS)
FOLLOWING SUCH OFFERING.
THE COMPANY WARRANTS THAT THE RIGHTS GRANTED TO THE
HOLDERS HEREUNDER DO NOT IN ANY WAY CONFLICT WITH AND ARE NOT INCONSISTENT WITH
ANY OTHER AGREEMENTS TO WHICH THE COMPANY IS A PARTY OR BY WHICH IT IS BOUND.
THE COMPANY HAS NOT PREVIOUSLY ENTERED INTO ANY AGREEMENT WITH RESPECT TO ITS
SECURITIES GRANTING ANY REGISTRATION RIGHTS TO ANY PERSON THAT IS IN FORCE OR
EFFECT AS OF THE DATE HEREOF OR WILL BECOME EFFECTIVE AFTER THE DATE HEREOF.
SECTION 4.
MISCELLANEOUS.
4.1.
AMENDMENTS AND WAIVERS.
THIS AGREEMENT AND ANY
OF THE PROVISIONS HEREOF MAY BE AMENDED, WAIVED (EITHER GENERALLY OR IN A
PARTICULAR INSTANCE AND EITHER RETROACTIVELY OR PROSPECTIVELY), MODIFIED OR
SUPPLEMENTED, IN WHOLE OR IN PART, ONLY BY WRITTEN AGREEMENT OF THE COMPANY AND
THE PURCHASER; PROVIDED, HOWEVER, THAT ANY AMENDMENT, WAIVER, MODIFICATION OR
SUPPLEMENT OF SECTION 2.6 SHALL REQUIRE THE WRITTEN AGREEMENT OF THE COMPANY AND
HOLDERS HOLDING AT LEAST A MAJORITY OF