Registration Statement is subject to review by the SEC) and (B) 2nd Business Dayafter the date the Company is notified (orally or in writing, whichever is earlier) by the SEC thatsuch Registration Statement will not be reviewed or will not be subject to further review and (ii)with respect to any additional Registration Statements that may be required to be filed by theCompany pursuant to this Agreement, the earlier of the (A) 40th calendar day followingthe date on which the Company was required to file such additional Registration Statement (or the90th calendar day after such date in the event that such Registration Statement issubject to review by the SEC) and (B) 2nd Business Day after the date the Company isnotified (orally or in writing, whichever is earlier) by the SEC that such Registration Statementwill not be reviewed or will not be subject to further review.     (e) “**Filing Deadline**” means (i) with respect to the initial Registration Statement required tobe filed pursuant to Section 2(a), the 20th calendar day after the Closing Date and (ii)with respect to any additional Registration Statements that may be required to be filed by theCompany pursuant to this Agreement, the date on which the Company was required to file suchadditional Registration Statement pursuant to the terms of this Agreement.     (f) “**Investor**” means a Buyer or any transferee or assignee of any Registrable Securities orWarrants, as applicable, to whom a Buyer assigns its rights under this Agreement and who agrees tobecome bound by the provisions of this Agreement in accordance with Section 9 and any transferee orassignee thereof to whom a transferee or assignee of any Registrable Securities or Warrants, asapplicable, assigns its rights under this Agreement and who agrees to become bound by theprovisions of this Agreement in accordance with Section 9.     (g) “**Person**” means an individual, a limited liability company, a partnership, a joint venture,a corporation, a trust, an unincorporated organization or a government or any department or agencythereof.     (h) “**Register**,” “**Registered**,” and “**Registration**” refer to a registration effected by preparingand filing one or more Registration Statements in compliance with the 1933 Act and pursuant to Rule415 and the declaration of effectiveness of such Registration Statement(s) by the SEC.     (i) “**Registrable Securities**” means (i) the Common Shares, (ii) the Warrant Shares and (iii)any capital stock of the Company issued or issuable with respect to the Common Shares, the WarrantShares or the Warrants, including, without limitation, (1) as a result of any stock split, stockdividend, recapitalization, exchange or similar event or otherwise and (2) shares of capital stockof the Company into which the shares of Common Stock are converted or exchanged and shares ofcapital stock of a Successor Entity (as defined in the Warrants) into which the shares of CommonStock are converted or exchanged, in each case, without regard to any limitations on exercise ofthe Warrants.     (j) “**Registration Statement**” means a registration statement or registration statements of theCompany filed under the 1933 Act covering Registrable Securities.     (k) “**Required Holders**” means the holders of at least a majority of the Registrable Securities.
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     (l) “**Required Registration Amount**” means the sum of (i) the Common Shares issued and (ii) themaximum number of Warrant Shares issued and issuable pursuant to the Warrants as of the Trading Day(as defined in the Warrants) immediately preceding the applicable date of determination (withouttaking into account any limitations on the exercise of the Warrants set forth therein), all subjectto adjustment as provided in Section 2(d).     (m) “**Rule 144**” means Rule 144 promulgated by the SEC under the 1933 Act, as such rule may beamended from time to time, or any other similar or successor rule or regulation of the SEC that mayat any time permit the Investors to sell securities of the Company to the public withoutregistration.     (n) “**Rule 415**” means Rule 415 promulgated by the SEC under the 1933 Act, as such rule may beamended from time to time, or any other similar or successor rule or regulation of the SECproviding for offering securities on a continuous or delayed basis.     (o) “**SEC**” means the United States Securities and Exchange Commission or any successor thereto.2. Registration.     (a) Mandatory Registration. The Company shall prepare and, as soon as practicable,but in no event later than the Filing Deadline, file with the SEC an initial Registration Statementon Form S-3 covering the resale of all of the Registrable Securities, provided that such initialRegistration Statement shall register for resale at least the number of shares of Common Stockequal to the Required Registration Amount as of the date such Registration Statement is initiallyfiled with the SEC, provided further that if Form S-3 is unavailable for such a registration, theCompany shall use such other form as is required by Section 2(c). Such initial RegistrationStatement, and each other Registration Statement required to filed pursuant to the terms of thisAgreement, shall contain (except if otherwise directed by the Required Holders) the “SellingStockholders” and “Plan of Distribution” sections in substantially the form attachedhereto as **Exhibit A**. The Company shall use its reasonable best efforts to have such initialRegistration Statement, and each other Registration Statement required to filed pursuant to theterms of this Agreement, declared effective by the SEC as soon as practicable, but in no eventlater than the applicable Effectiveness Deadline for such Registration Statement.     (b) Legal Counsel. Subject to Section 5 hereof, the Investor holding the largestamount of Registrable Securities to be registered on the applicable Registration Statement (the“**Lead Investor**”) shall have the right to select one (1) legal counsel to review and oversee, solelyon its behalf, any registration pursuant to this Section 2 (the “**Legal Counsel**”).     (c) Ineligibility to Use Form S-3. In the event that Form S-3 is not available for theregistration of the resale of Registrable Securities hereunder, the Company shall (i) register theresale of the Registrable Securities on another appropriate form reasonably acceptable to theRequired Holders and (ii) undertake to register the resale of the Registrable Securities on FormS-3 as soon as such form is available, provided that the Company shall maintain the effectivenessof all Registration Statements then in effect until such time as a Registration Statement on FormS-3 covering the resale of all the Registrable Securities has been declared effective by the SEC.
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     (d) Sufficient Number of Shares Registered. In the event the number of sharesavailable under any Registration Statement is insufficient to cover all of the RegistrableSecurities required to be covered by such Registration Statement, the Company shall amend suchRegistration Statement (if permissible), or file with the SEC a new Registration Statement (on theshort form available therefor, if applicable), or both, so as to cover at least the RequiredRegistration Amount as of the Trading Day immediately preceding the date of the filing of suchamendment or new Registration Statement, in each case, as soon as practicable, but in any event notlater than fifteen (15) days after the necessity therefor arises (but taking account of anyposition of the staff of the SEC (the “**Staff**”) with respect to the date on which the Staff willpermit such amendment to the Registration Statement and/or such new Registration Statement (as thecase may be) to be filed with the SEC). The Company shall use its reasonable best efforts to causesuch amendment to such Registration Statement and/or such new Registration Statement (as the casemay be) to become effective as soon as practicable following the filing thereof with the SEC, butin no event later than the applicable Effectiveness Deadline for such Registration Statement. Forpurposes of the foregoing provision, the number of shares available under a Registration Statementshall be deemed “insufficient to cover all of the Registrable Securities” if at any time the numberof shares of Common Stock available for resale under the applicable Registration Statement is lessthan the product determined by multiplying (i) the Required Registration Amount as of such time by(ii) 0.90. The calculation set forth in the foregoing sentence shall be made without regard to anylimitations on exercise of the Warrants (and such calculation shall assume that the Warrants arethen fully exercisable for shares of Common Stock at the then-prevailing applicable ExercisePrice).     (e) Registrable Securities. Any security issued by the Company that constitutes aRegistrable Security shall cease to be a Registrable Security upon the earlier to occur of (i) thesale of such security pursuant to a Registration Statement or (ii) the first date on which suchsecurity may be sold without restriction pursuant to Rule 144 (including, without limitation,volume restrictions) and without the need for current public information required by Rule 144(c)(1)(or Rule 144(i)(2), if applicable) (assuming, for purposes of the foregoing determination,“cashless exercise” of all Warrants).     (f) Offering. Notwithstanding anything to the contrary contained in this Agreement, inthe event the Staff or the SEC seeks to characterize any offering pursuant to a RegistrationStatement filed pursuant to this Agreement as constituting an offering of securities by, or onbehalf of, the Company, or in any other manner, such that the Staff or the SEC do not permit suchRegistration Statement to become effective and used for resales in a manner that does notconstitute such an offering and that permits the continuous resale at the market by the Investorsparticipating therein (or as otherwise may be acceptable to each Investor) without being namedtherein as an “underwriter,” then the Company shall reduce the number of shares to be included insuch Registration Statement by all Investors until such time as the Staff and the SEC shall sopermit such Registration Statement to become effective as aforesaid. In making such reduction, theCompany shall reduce the number of shares to be included by all Investors on a pro rata basis(based upon the number of Registrable Securities otherwise required to be included for eachInvestor) unless the inclusion of shares by a particular Investor or a particular set of Investorsare resulting in the Staff or the SEC’s “by or on behalf of the Company” offering position, inwhich event the shares held by such Investor or set of Investors shall be the only shares subjectto reduction (and if by a set of Investors on a pro rata basis by such Investors or on such otherbasis
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as would result in the exclusion of the least number of shares by all such Investors). Inaddition, in the event that the Staff or the SEC requires any Investor seeking to sell securitiesunder a Registration Statement filed pursuant to this Agreement to be specifically identified asan “underwriter” in order to permit such Registration Statement to become effective, and suchInvestor does not consent to being so named as an underwriter in such Registration Statement, then,in each such case, the Company shall reduce the total number of Registrable Securities to beregistered on behalf of such Investor, until such time as the Staff or the SEC does not requiresuch identification or until such Investor accepts such identification and the manner thereof. Anyreduction pursuant to this paragraph will first reduce all Registrable Securities other than thoseissued pursuant to the Securities Purchase Agreement. In the event of any reduction in RegistrableSecurities pursuant to this paragraph, an affected Investor shall have the right to require, upondelivery of a written request to the Company signed by such Investor, the Company to file aregistration statement within thirty (30) days of such request (subject to any restrictions imposedby Rule 415 or required by the Staff or the SEC) for resale by such Investor in a manner acceptableto such Investor, and the Company shall following such request cause to be and keep effective suchregistration statement in the same manner as otherwise contemplated in this Agreementfor registration statements hereunder, in each case until such time as: (i) all RegistrableSecurities held by such Investor have been registered and sold pursuant to an effectiveRegistration Statement in a manner acceptable to such Investor or (ii) all Registrable Securitiesmay be resold by such Investor without restriction (including, without limitation, volumelimitations) pursuant to Rule 144 (taking account of any Staff position with respect to “affiliate”status) and without the need for current public information required by Rule 144(c)(1) (or Rule144(i)(2), if applicable) (assuming, for purposes of the foregoing determination, “cashlessexercise” of all Warrants), or (iii) such Investor agrees to be named as an underwriter in any suchRegistration Statement in a manner acceptable to such Investor as to all Registrable Securitiesheld by such Investor and that have not theretofore been included in a Registration Statement underthis Agreement (it being understood that the special demand right under this sentence may beexercised by an Investor multiple times and with respect to limited amounts of RegistrableSecurities in order to permit the resale thereof by such Investor as contemplated above).     (g) [Intentionally Omitted]     (h) Allocation of Registrable Securities. The initial number of Registrable Securitiesincluded in any Registration Statement and any increase in the number of Registrable Securitiesincluded therein shall be allocated pro rata among the Investors based on the number of RegistrableSecurities held by each Investor at the time such Registration Statement covering such initialnumber of Registrable Securities or increase thereof is declared effective by the SEC. In the eventthat an Investor sells or otherwise transfers any of such Investor’s Registrable Securities, eachtransferee or assignee (as the case may be) that becomes an Investor shall be allocated a pro rataportion of the then-remaining number of Registrable Securities included in such RegistrationStatement for such transferor or assignee (as the case may be). Any shares of Common Stock includedin a Registration Statement and which remain allocated to any Person which ceases to hold anyRegistrable Securities covered by such Registration Statement shall be allocated to the remainingInvestors, pro rata based on the number of Registrable Securities then held by such Investors whichare covered by such Registration Statement.
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3. Related Obligations.     The Company shall use its reasonable best efforts to effect the registration of theRegistrable Securities in accordance with the intended method of disposition thereof, and, pursuantthereto, the Company shall have the following obligations:     (a) The Company shall promptly prepare and file with the SEC a Registration Statement withrespect to all the Registrable Securities (but in no event later than the applicable FilingDeadline) and use its reasonable best efforts to cause such Registration Statement to becomeeffective as soon as practicable after such filing (but in no event later than the EffectivenessDeadline). Subject to Allowable Grace Periods (as defined below), the Company shall keep eachRegistration Statement effective (and the prospectus contained therein available for use) pursuantto Rule 415 for resales by the Investors on a delayed or continuous basis at then-prevailing marketprices (and not fixed prices) at all times until the earlier of (i) the date as of which all of theInvestors may sell all of the Registrable Securities required to be covered by such RegistrationStatement (disregarding any reduction pursuant to Section 2(f)) without restriction pursuant toRule 144 (including, without limitation, volume restrictions) and without the need for currentpublic information required by Rule 144(c)(1) (or Rule 144(i)(2), if applicable) (assuming, forpurposes of the foregoing determination, “cashless exercise” of all Warrants) or (ii) the date onwhich the Investors shall have sold all of the Registrable Securities covered by such RegistrationStatement (the “**Registration Period**”). Notwithstanding anything to the contrary contained in thisAgreement, the Company shall ensure that, when filed and at all times while effective, eachRegistration Statement (including, without limitation, all amendments and supplements thereto) andthe prospectus (including, without limitation, all amendments and supplements thereto) used inconnection with such Registration Statement (1) shall not contain any untrue statement of amaterial fact or omit to state a material fact required to be stated therein, or necessary to makethe statements therein (in the case of prospectuses, in the light of the circumstances in whichthey were made) not misleading and (2) will disclose (whether directly or through incorporation byreference to other SEC filings to the extent permitted) all material information regarding theCompany and its securities. The Company shall submit to the SEC, within one (1) Business Day afterthe later of the date that the Company learns that no review of a particular Registration Statementwill be made by the Staff or that the Staff has no further comments on a particular RegistrationStatement (as the case may be) a request for acceleration of effectiveness of such RegistrationStatement to a time and date not later than forty-eight (48) hours after the submission of suchrequest.     (b) Subject to Section 3(r) of this Agreement, the Company shall prepare and file with the SECsuch amendments (including, without limitation, post-effective amendments) and supplements to eachRegistration Statement and the prospectus used in connection with each such Registration Statement,which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may benecessary to keep each such Registration Statement effective at all times during the RegistrationPeriod for such Registration Statement, and, during such period, comply with the provisions of the1933 Act with respect to the disposition of all Registrable Securities of the Company required tobe covered by such Registration Statement until such time as all of such Registrable Securitiesshall have been disposed of in accordance with the intended methods of disposition by the seller orsellers thereof as set forth in such Registration Statement; provided, however, by 8:30 a.m. (NewYork time) on the Business Day immediately following
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each Effective Date, the Company shall file with the SEC in accordance with Rule 424(b) underthe 1933 Act the final prospectus to be used in connection with sales pursuant to the applicableRegistration Statement (whether or not such a prospectus is technically required by such rule). Inthe case of amendments and supplements to any Registration Statement which are required to be filedpursuant to this Agreement (including, without limitation, pursuant to this Section 3(b)) by reasonof the Company filing a report on Form 10-Q or Form 10-K or any analogous report under theSecurities Exchange Act of 1934, as amended (the “**1934 Act**”), the Company shall have incorporatedsuch report by reference into such Registration Statement, if applicable, or shall file suchamendments or supplements with the SEC promptly after the 1934 Act report is filed which createdthe requirement for the Company to amend or supplement such Registration Statement.     (c) The Company shall permit Legal Counsel to review and comment upon (i) each RegistrationStatement at least three (3) calendar days prior to its filing with the SEC and (ii) all amendmentsand supplements to each Registration Statement (including, without limitation, the prospectuscontained therein) (except for Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, CurrentReports on Form 8-K, and any similar or successor reports) within a reasonable number of days priorto their filing with the SEC. The Company shall promptly furnish to Legal Counsel, without charge,(i) copies of any correspondence from the SEC or the Staff to the Company or its representativesrelating to each Registration Statement, provided that such correspondence shall not contain anymaterial, non-public information regarding the Company, (ii) at the written request of anyInvestor, after the same is prepared and filed with the SEC, one (1) copy of each RegistrationStatement and any amendment(s) and supplement(s) thereto, including, without limitation, financialstatements and schedules, all documents incorporated therein by reference, if requested by suchInvestor, and all exhibits and (iii) upon the effectiveness of each Registration Statement, one (1)copy of the prospectus included in such Registration Statement and all amendments and supplementsthereto. The Company shall reasonably cooperate with Legal Counsel in performing the Company’sobligations pursuant to this Section 3.     (d) The Company shall promptly furnish to any Investor whose Registrable Securities areincluded in any Registration Statement, without charge, upon the written request of such Investor,(i) after the same is prepared and filed with the SEC, at least one (1) copy of each RegistrationStatement and any amendment(s) and supplement(s) thereto, including, without limitation, financialstatements and schedules, all documents incorporated therein by reference, if requested by suchInvestor, all exhibits and each preliminary prospectus, (ii) upon the effectiveness of eachRegistration Statement, ten (10) copies of the prospectus included in such Registration Statementand all amendments and supplements thereto (or such other number of copies as such Investor mayreasonably request from time to time) and (iii) such other documents, including, withoutlimitation, copies of any preliminary or final prospectus, as such Investor may reasonably requestfrom time to time in order to facilitate the disposition of the Registrable Securities owned bysuch Investor.     (e) The Company shall use its reasonable best efforts to (i) register and qualify, unless anexemption from registration and qualification applies, the resale by Investors of the RegistrableSecurities covered by a Registration Statement under such other securities or “blue sky” laws ofall applicable jurisdictions in the United States, (ii) prepare and file in those
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jurisdictions, such amendments (including, without limitation, post-effective amendments) andsupplements to such registrations and qualifications as may be necessary to maintain theeffectiveness thereof during the Registration Period, (iii) take such other actions as may benecessary to maintain such registrations and qualifications in effect at all times during theRegistration Period, and (iv) take all other actions reasonably necessary or advisable to qualifythe Registrable Securities for sale in such jurisdictions; provided, however, the Company shall notbe required in connection therewith or as a condition thereto to (x) qualify to do business in anyjurisdiction where it would not otherwise be required to qualify but for this Section 3(e), (y)subject itself to general taxation in any such jurisdiction, or (z) file a general consent toservice of process in any such jurisdiction. The Company shall promptly notify Legal Counsel andeach Investor who holds Registrable Securities of the receipt by the Company of any notificationwith respect to the suspension of the registration or qualification of any of the RegistrableSecurities for sale under the securities or “blue sky” laws of any jurisdiction in the UnitedStates or its receipt of actual notice of the initiation or threatening of any proceeding for suchpurpose.     (f) The Company shall notify Legal Counsel and each Investor in writing of the happening ofany event, as promptly as practicable after becoming aware of such event, as a result of which theprospectus included in a Registration Statement, as then in effect, includes an untrue statement ofa material fact or omission to state a material fact required to be stated therein or necessary tomake the statements therein, in the light of the circumstances under which they were made, notmisleading (provided that in no event shall such notice contain any material, non-publicinformation regarding the Company), and, subject to Section 3(r), promptly prepare a supplement oramendment to such Registration Statement and such prospectus contained therein to correct suchuntrue statement or omission and deliver ten (10) copies of such supplement or amendment to LegalCounsel and each Investor (or such other number of copies as Legal Counsel or such Investor mayreasonably request). The Company shall also promptly notify Legal Counsel and each Investor inwriting (i) when a prospectus or any prospectus supplement or post-effective amendment has beenfiled, when a Registration Statement or any post-effective amendment has become effective(notification of such effectiveness shall be delivered to Legal Counsel and each Investor byfacsimile or e-mail on the same day of such effectiveness and by overnight mail), and when theCompany receives written notice from the SEC that a Registration Statement or any post-effectiveamendment will be reviewed by the SEC, (ii) of any request by the SEC for amendments or supplementsto a Registration Statement or related prospectus or related information, (iii) of the Company’sreasonable determination that a post-effective amendment to a Registration Statement would beappropriate; and (iv) of the receipt of any request by the SEC or any other federal or stategovernmental authority for any additional information relating to the Registration Statement or anyamendment or supplement thereto or any related prospectus. The Company shall respond as promptly aspracticable to any comments received from the SEC with respect to each Registration Statement orany amendment thereto.     (g) The Company shall (i) use its reasonable best efforts to prevent the issuance of any stoporder or other suspension of effectiveness of each Registration Statement or the use of anyprospectus contained therein, or the suspension of the qualification, or the loss of an exemptionfrom qualification, of any of the Registrable Securities for sale in any jurisdiction and, if suchan order or suspension is issued, to obtain the withdrawal of such order or suspension at theearliest possible moment and (ii) notify Legal Counsel and each Investor who holds RegistrableSecurities of the issuance of such order and the resolution thereof or its receipt of
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actual notice of the initiation or threat of any proceeding for such purpose.     (h) If any Investor may be required under applicable securities law to be described in anyRegistration Statement as an underwriter and such Investor consents to so being named anunderwriter, at the request of any Investor, the Company shall furnish to such Investor, on thedate of the effectiveness of such Registration Statement and thereafter from time to time on suchdates as an Investor may reasonably request (i) a letter, dated such date, from the Company’sindependent certified public accountants in form and substance as is customarily given byindependent certified public accountants to underwriters in an underwritten public offering,addressed to the Investors, and (ii) an opinion, dated as of such date, of counsel representing theCompany for purposes of such Registration Statement, in form, scope and substance as is customarilygiven in an underwritten public offering, addressed to the Investors.     (i) If any Investor may be required under applicable securities law to be described in anyRegistration Statement as an underwriter and such Investor consents to so being named anunderwriter, upon the written request of such Investor, the Company shall make available forinspection by (i) such Investor, (ii) legal counsel for such Investor and (iii) one (1) firm ofaccountants or other agents retained by such Investor (collectively, the “**Inspectors**”), allpertinent financial and other records, and pertinent corporate documents and properties of theCompany (collectively, the “**Records**”), as shall be reasonably deemed necessary by each Inspector,and cause the Company’s officers, directors and employees to supply all information which anyInspector may reasonably request; provided, however, each Inspector shall agree in writing to holdin strict confidence and not to make any disclosure (except to such Investor) or use of any Recordor other information which the Company’s board of directors determines in good faith to beconfidential, and of which determination the Inspectors are so notified, unless (1) the disclosureof such Records is necessary to avoid or correct a misstatement or omission in any RegistrationStatement or is otherwise required under the 1933 Act, (2) the release of such Records is orderedpursuant to a final, non-appealable subpoena or order from a court or government body of competentjurisdiction, or (3) the information in such Records has been made generally available to thepublic other than by disclosure in violation of this Agreement or any other Transaction Document(as defined in the Securities Purchase Agreement). Such Investor agrees that it shall, uponlearning that disclosure of such Records is sought in or by a court or governmental body ofcompetent jurisdiction or through other means, give prompt notice to the Company and allow theCompany, at its expense, to undertake appropriate action to prevent disclosure of, or to obtain aprotective order for, the Records deemed confidential. Nothing herein (or in any otherconfidentiality agreement between the Company and such Investor, if any) shall be deemed to limitany Investor’s ability to sell Registrable Securities in a manner which is otherwise consistentwith applicable laws and regulations.     (j) The Company shall hold in confidence and not make any disclosure of information concerningan Investor provided to the Company unless (i) disclosure of such information is necessary tocomply with federal or state securities laws, (ii) the disclosure of such information is necessaryto avoid or correct a misstatement or omission in any Registration Statement or is otherwiserequired to be disclosed in such Registration Statement pursuant to the 1933 Act, (iii) the releaseof such information is ordered pursuant to a subpoena or other final, non-appealable order from acourt or governmental body of competent jurisdiction, or (iv) such information has been madegenerally available to the public other than by disclosure in violation
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of this Agreement or any other Transaction Document. The Company agrees that it shall, uponlearning that disclosure of such information concerning an Investor is sought in or by a court orgovernmental body of competent jurisdiction or through other means, give prompt written notice tosuch Investor and allow such Investor, at such Investor’s expense, to undertake appropriate actionto prevent disclosure of, or to obtain a protective order for, such information.     (k) Without limiting any obligation of the Company under the Securities Purchase Agreement,the Company shall use its reasonable best efforts either to (i) cause all of the RegistrableSecurities covered by each Registration Statement to be listed on each securities exchange on whichsecurities of the same class or series issued by the Company are then listed, if any, if thelisting of such Registrable Securities is then permitted under the rules of such exchange, (ii)secure designation and quotation of all of the Registrable Securities covered by each RegistrationStatement on the OTC Bulletin Board, or (iii) if, despite the Company’s reasonable best efforts tosatisfy the preceding clauses (i) or (ii) the Company is unsuccessful in satisfying the precedingclauses (i) or (ii), without limiting the generality of the foregoing, to use its reasonable bestefforts to arrange for at least two market makers to register with the Financial IndustryRegulatory Authority (“**FINRA**”) as such with respect to such Registrable Securities. In addition,the Company shall cooperate with each Investor and any broker or dealer through which any suchInvestor proposes to sell its Registrable Securities in effecting a filing with FINRA pursuant toFINRA Rule 5110 as requested by such Investor. The Company shall pay all fees and expenses inconnection with satisfying its obligations under this Section 3(k).     (l) The Company shall cooperate with the Investors who hold Registrable Securities beingoffered and, to the extent applicable, facilitate the timely preparation and delivery ofcertificates (not bearing any restrictive legend) representing the Registrable Securities to beoffered pursuant to a Registration Statement and enable such certificates to be in suchdenominations or amounts (as the case may be) as the Investors may reasonably request from time totime and registered in such names as the Investors may request.     (m) If requested by an Investor, the Company shall as soon as practicable after receipt ofnotice from such Investor and subject to Section 3(r) hereof, (i) incorporate in a prospectussupplement or post-effective amendment such information as an Investor reasonably requests to beincluded therein relating to the sale and distribution of Registrable Securities, including,without limitation, information with respect to the number of Registrable Securities being offeredor sold, the purchase price being paid therefor and any other terms of the offering of theRegistrable Securities to be sold in such offering; (ii) make all required filings of suchprospectus supplement or post-effective amendment after being notified of the matters to beincorporated in such prospectus supplement or post-effective amendment; and (iii) supplement ormake amendments to any Registration Statement or prospectus contained therein if reasonablyrequested by an Investor holding any Registrable Securities.     (n) The Company shall use its reasonable best efforts to cause the Registrable Securitiescovered by a Registration Statement to be registered with or approved by such other governmentalagencies or authorities as may be necessary to consummate the disposition of such RegistrableSecurities.     (o) The Company shall make generally available to its security holders as soon as
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practical, but not later than ninety (90) days after the close of the period covered thereby,an earnings statement (in form complying with, and in the manner provided by, the provisions ofRule 158 under the 1933 Act) covering a twelve-month period beginning not later than the first dayof the Company’s fiscal quarter next following the applicable Effective Date of each RegistrationStatement.     (p) The Company shall otherwise use its reasonable best efforts to comply with all applicablerules and regulations of the SEC in connection with any registration hereunder.     (q) Within one (1) Business Day after a Registration Statement which covers RegistrableSecurities is declared effective by the SEC, the Company shall deliver, and shall cause legalcounsel for the Company to deliver, to the transfer agent for such Registrable Securities (withcopies to the Investors whose Registrable Securities are included in such Registration Statement)confirmation that such Registration Statement has been declared effective by the SEC.     (r) Notwithstanding anything to the contrary herein (but subject to the last sentence of thisSection 3(r)), at any time after the Effective Date of a particular Registration Statement, theCompany may delay the disclosure of material, non-public information concerning the Company thedisclosure of which at the time is not, in the good faith opinion of the board of directors of theCompany, in the best interest of the Company and, in the opinion of counsel to the Company,otherwise required (a “**Grace Period**”), provided that the Company shall promptly notify theInvestors in writing of the (i) existence of material, non-public information giving rise to aGrace Period (provided that in each such notice the Company shall not disclose the content of suchmaterial, non-public information to any of the Investors) and the date on which such Grace Periodwill begin and (ii) date on which such Grace Period ends, provided further that (I) no Grace Periodshall exceed thirty (30) consecutive days and during any three hundred sixty five (365) day periodall such Grace Periods shall not exceed an aggregate of ninety (90) days, and (II) the first day ofany Grace Period must be at least five (5) Trading Days after the last day of any prior GracePeriod (each, an “**Allowable Grace Period**”). For purposes of determining the length of a GracePeriod above, such Grace Period shall begin on and include the date the Investors receive thenotice referred to in clause (i) above and shall end on and include the later of the date theInvestors receive the notice referred to in clause (ii) above and the date referred to in suchnotice. The provisions of Section 3(g) hereof shall not be applicable during the period of anyAllowable Grace Period. Upon expiration of each Grace Period, the Company shall again be bound bythe first sentence of Section 3(f) with respect to the information giving rise thereto unless suchmaterial, non-public information is no longer applicable. Notwithstanding anything to the contrarycontained in this Section 3(r), the Company shall cause its transfer agent to deliver unlegendedshares of Common Stock to a transferee of an Investor in accordance with the terms of theSecurities Purchase Agreement in connection with any sale of Registrable Securities with respect towhich such Investor has entered into a contract for sale, and delivered a copy of the prospectusincluded as part of the particular Registration Statement to the extent applicable, prior to suchInvestor’s receipt of the notice of a Grace Period and for which the Investor has not yet settled.     (s) If at any time after the date hereof the Company shall become eligible to use Form S-3 forthe registration of the resale of all the Registrable Securities, thereafter the
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Company shall use its reasonable best efforts to maintain eligibility for use of Form S-3 (orany successor form thereto) for the registration of the resale of all the Registrable Securities.     (t) The Company shall take all other reasonable actions necessary to expedite and facilitatedisposition by each Investor of its Registrable Securities pursuant to each Registration Statement.4. Obligations of the Investors.     (a) At least five (5) Business Days prior to the first anticipated filing date of eachRegistration Statement under this Agreement, the Company shall notify each Investor in writing ofthe information the Company requires from each such Investor with respect to such RegistrationStatement. It shall be a condition precedent to the obligations of the Company to complete theregistration pursuant to this Agreement with respect to the Registrable Securities of a particularInvestor that such Investor shall furnish to the Company such information regarding itself, theRegistrable Securities held by it and the intended method of disposition of the RegistrableSecurities held by it, as shall be reasonably required to effect and maintain the effectiveness ofthe registration of such Registrable Securities and shall execute such documents in connection withsuch registration as the Company may reasonably request.     (b) Each Investor, by such Investor’s acceptance of the Registrable Securities, agrees tocooperate with the Company as reasonably requested by the Company in connection with thepreparation and filing of each Registration Statement hereunder, unless such Investor has notifiedthe Company in writing of such Investor’s election to exclude all of such Investor’s RegistrableSecurities from such Registration Statement.     (c) Each Investor agrees that, upon receipt of any notice from the Company of the happening ofany event of the kind described in Section 3(g) or the first sentence of 3(f), such Investor willimmediately discontinue disposition of Registrable Securities pursuant to any RegistrationStatement(s) covering such Registrable Securities until such Investor’s receipt of the copies ofthe supplemented or amended prospectus contemplated by Section 3(g) or the first sentence ofSection 3(f) or receipt of notice that no supplement or amendment is required. Notwithstandinganything to the contrary in this Section 4(c), the Company shall cause its transfer agent todeliver unlegended shares of Common Stock to a transferee of an Investor in accordance with theterms of the Securities Purchase Agreement in connection with any sale of Registrable Securitieswith respect to which such Investor has entered into a contract for sale prior to the Investor’sreceipt of a notice from the Company of the happening of any event of the kind described in Section3(g) or the first sentence of Section 3(f) and for which such Investor has not yet settled.     (d) Each Investor covenants and agrees that it will comply with the prospectus deliveryrequirements of the 1933 Act as applicable to it in connection with sales of Registrable Securitiespursuant to a Registration Statement.5. Expenses of Registration.          All reasonable expenses, other than underwriting discounts and commissions, incurred inconnection with registrations, filings or qualifications pursuant to Sections 2 and 3,
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including, without limitation, all registration, listing and qualifications fees, printers andaccounting fees, FINRA filing fees (if any) and fees and disbursements of counsel for the Companyshall be paid by the Company. The Company shall also reimburse the Lead Investor for the fees anddisbursements of Legal Counsel in connection with registration, filing or qualification pursuant toSections 2 and 3 of this Agreement which amount shall be limited to $10,000.6. Indemnification.     (a) In the event any Registrable Securities are included in any Registration Statement underthis Agreement, to the fullest extent permitted by law, the Company will, and hereby does,indemnify, hold harmless and defend each Investor and each of its directors, officers,shareholders, members, partners, employees, agents, advisors, representatives (and any otherPersons with a functionally equivalent role of a Person holding such titles notwithstanding thelack of such title or any other title) and each Person, if any, who controls such Investor withinthe meaning of the 1933 Act or the 1934 Act and each of the directors, officers, shareholders,members, partners, employees, agents, advisors, representatives (and any other Persons with afunctionally equivalent role of a Person holding such titles notwithstanding the lack of such titleor any other title) of such controlling Persons (each, an “**Indemnified Person**”), against anylosses, obligations, claims, damages, liabilities, contingencies, judgments, fines, penalties,charges, costs (including, without limitation, court costs, reasonable attorneys’ fees and costs ofdefense and investigation), amounts paid in settlement or expenses, joint or several,(collectively, “**Claims**”) incurred in investigating, preparing or defending any action, claim, suit,inquiry, proceeding, investigation or appeal taken from the foregoing by or before any court orgovernmental, administrative or other regulatory agency, body or the SEC, whether pending orthreatened, whether or not an indemnified party is or may be a party thereto (“**IndemnifiedDamages**”), to which any of them may become subject insofar as such Claims (or actions orproceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon:(i) any untrue statement or alleged untrue statement of a material fact in a Registration Statementor any post-effective amendment thereto or in any filing made in connection with the qualificationof the offering under the securities or other “blue sky” laws of any jurisdiction in whichRegistrable Securities are offered (“**Blue Sky Filing**”), or the omission or alleged omission tostate a material fact required to be stated therein or necessary to make the statements therein notmisleading or (ii) any untrue statement or alleged untrue statement of a material fact contained inany preliminary prospectus if used prior to the effective date of such Registration Statement, orcontained in the final prospectus (as amended or supplemented, if the Company files any amendmentthereof or supplement thereto with the SEC) or the omission or alleged omission to state thereinany material fact necessary to make the statements made therein, in light of the circumstancesunder which the statements therein were made, not misleading (the matters in the foregoing clauses(i) through (ii) being, collectively, “**Violations**”). Subject to Section 6(c), the Company shallreimburse the Indemnified Persons, promptly as such expenses are incurred and are due and payable,for any legal fees or other reasonable expenses incurred by them in connection with investigatingor defending any such Claim. Notwithstanding anything to the contrary contained herein, theindemnification agreement contained in this Section 6(a): (i) shall not apply to a Claim by anIndemnified Person arising out of or based upon a Violation which occurs in reliance upon and inconformity with information furnished in writing to the Company by such Indemnified Person for suchIndemnified Person expressly for use in
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connection with the preparation of such Registration Statement or any such amendment thereofor supplement thereto and (ii) shall not be available to a particular Investor to the extent suchClaim is based on a failure of such Investor to deliver or to cause to be delivered the prospectusmade available by the Company (to the extent applicable), including, without limitation, acorrected prospectus, if such prospectus or corrected prospectus was timely made available by theCompany pursuant to Section 3(d) and then only if, and to the extent that, following the receipt ofthe corrected prospectus no grounds for such Claim would have existed; and (iii) shall not apply toamounts paid in settlement of any Claim if such settlement is effected without the prior writtenconsent of the Company, which consent shall not be unreasonably withheld or delayed. Such indemnityshall remain in full force and effect regardless of any investigation made by or on behalf of theIndemnified Person and shall survive the transfer of any of the Registrable Securities by any ofthe Investors pursuant to Section 9.     (b) In connection with any Registration Statement in which an Investor is participating, suchInvestor agrees to severally and not jointly indemnify, hold harmless and defend, to the sameextent and in the same manner as is set forth in Section 6(a), the Company, each of its directors,each of its officers who signs the Registration Statement and each Person, if any, who controls theCompany within the meaning of the 1933 Act or the 1934 Act (each, an “**Indemnified Party**”), againstany Claim or Indemnified Damages to which any of them may become subject, under the 1933 Act, the1934 Act or otherwise, insofar as such Claim or Indemnified Damages arise out of or are based uponany Violation, in each case, to the extent, and only to the extent, that such Violation occurs inreliance upon and in conformity with written information furnished to the Company by such Investorexpressly for use in connection with such Registration Statement; and, subject to Section 6(c) andthe below provisos in this Section 6(b), such Investor will reimburse an Indemnified Party anylegal or other expenses reasonably incurred by such Indemnified Party in connection withinvestigating or defending any such Claim; provided, however, the indemnity agreement contained inthis Section 6(b) and the agreement with respect to contribution contained in Section 7 shall notapply to amounts paid in settlement of any Claim if such settlement is effected without the priorwritten consent of such Investor, which consent shall not be unreasonably withheld or delayed,provided further that such Investor shall be liable under this Section 6(b) for only that amount ofa Claim or Indemnified Damages as does not exceed the net proceeds to such Investor as a result ofthe applicable sale of Registrable Securities pursuant to such Registration Statement. Suchindemnity shall remain in full force and effect regardless of any investigation made by or onbehalf of such Indemnified Party and shall survive the transfer of any of the RegistrableSecurities by any of the Investors pursuant to Section 9.     (c) Promptly after receipt by an Indemnified Person or Indemnified Party (as the case may be)under this Section 6 of notice of the commencement of any action or proceeding (including, withoutlimitation, any governmental action or proceeding) involving a Claim, such Indemnified Person orIndemnified Party (as the case may be) shall, if a Claim in respect thereof is to be made againstany indemnifying party under this Section 6, deliver to the indemnifying party a written notice ofthe commencement thereof, and the indemnifying party shall have the right to participate in, and,to the extent the indemnifying party so desires, jointly with any other indemnifying partysimilarly noticed, to assume control of the defense thereof with counsel mutually satisfactory tothe indemnifying party and the Indemnified Person or the Indemnified Party (as the case may be);provided, however, an Indemnified Person or Indemnified Party (as
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the case may be) shall have the right to retain its own counsel with the fees and expenses ofsuch counsel to be paid by the indemnifying party if: (i) the indemnifying party has agreed inwriting to pay such fees and expenses; (ii) the indemnifying party shall have failed promptly toassume the defense of such Claim and to employ counsel reasonably satisfactory to such IndemnifiedPerson or Indemnified Party (as the case may be) in any such Claim; or (iii) the named parties toany such Claim (including, without limitation, any impleaded parties) include both such IndemnifiedPerson or Indemnified Party (as the case may be) and the indemnifying party, and such IndemnifiedPerson or such Indemnified Party (as the case may be) shall have been advised by counsel that aconflict of interest is likely to exist if the same counsel were to represent such IndemnifiedPerson or such Indemnified Party and the indemnifying party (in which case, if such IndemnifiedPerson or such Indemnified Party (as the case may be) notifies the indemnifying party in writingthat it elects to employ separate counsel at the expense of the indemnifying party, then theindemnifying party shall not have the right to assume the defense thereof and such counsel shall beat the expense of the Indemnifying Party, provided further that in the case of clause (iii) abovethe indemnifying party shall not be responsible for the reasonable fees and expenses of more thanone (1) separate legal counsel for such Indemnified Person or Indemnified Party (as the case maybe). The Indemnified Party or Indemnified Person (as the case may be) shall reasonably cooperatewith the indemnifying party in connection with any negotiation or defense of any such action orClaim by the indemnifying party and shall furnish to the indemnifying party all informationreasonably available to the Indemnified Party or Indemnified Person (as the case may be) whichrelates to such action or Claim. The indemnifying party shall keep the Indemnified Party orIndemnified Person (as the case may be) reasonably apprised at all times as to the status of thedefense or any settlement negotiations with respect thereto. No indemnifying party shall be liablefor any settlement of any action, claim or proceeding effected without its prior written consent;provided, however, the indemnifying party shall not unreasonably withhold, delay or condition itsconsent. No indemnifying party shall, without the prior written consent of the Indemnified Partyor Indemnified Person (as the case may be), consent to entry of any judgment or enter into anysettlement or other compromise which does not include as an unconditional term thereof the givingby the claimant or plaintiff to such Indemnified Party or Indemnified Person (as the case may be)of a release from all liability in respect to such Claim or litigation, and such settlement shallnot include any admission as to fault on the part of the Indemnified Party. Followingindemnification as provided for hereunder, the indemnifying party shall be subrogated to all rightsof the Indemnified Party or Indemnified Person (as the case may be) with respect to all thirdparties, firms or corporations relating to the matter for which indemnification has been made. Thefailure to deliver written notice to the indemnifying party within a reasonable time of thecommencement of any such action shall not relieve such indemnifying party of any liability to theIndemnified Person or Indemnified Party (as the case may be) under this Section 6, except to theextent that the indemnifying party is materially and adversely prejudiced in its ability to defendsuch action.     (d) No Person involved in the sale of Registrable Securities who is guilty of fraudulentmisrepresentation (within the meaning of Section 11(f) of the 1933 Act) in connection with suchsale shall be entitled to indemnification from any Person involved in such sale of RegistrableSecurities who is not guilty of fraudulent misrepresentation.     (e) The indemnification required by this Section 6 shall be made by periodic payments of theamount thereof during the course of the investigation or defense, as and when
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bills are received or Indemnified Damages are incurred, provided that each Indemnified Personshall promptly reimburse the Company for all such payments received by such Indemnified Person tothe extent (but only to the extent) that a court of competent jurisdiction determines that suchIndemnified Person was not entitled to such payments.     (f) The indemnity and contribution agreements contained herein shall be in addition to (i) anycause of action or similar right of the Indemnified Party or Indemnified Person against theindemnifying party or others, and (ii) any liabilities the indemnifying party may be subject topursuant to the law.7. Contribution.          To the extent any indemnification by an indemnifying party is prohibited or limited by law,the indemnifying party agrees to make the maximum contribution with respect to any amounts forwhich it would otherwise be liable under Section 6 to the fullest extent permitted by law;provided, however: (i) no contribution shall be made under circumstances where the maker would nothave been liable for indemnification under the fault standards set forth in Section 6 of thisAgreement, (ii) no Person involved in the sale of Registrable Securities which Person is guilty offraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) in connectionwith such sale shall be entitled to contribution from any Person involved in such sale ofRegistrable Securities who was not guilty of fraudulent misrepresentation; and (iii) contributionby any seller of Registrable Securities shall be limited in amount to the amount of net proceedsreceived by such seller from the applicable sale of such Registrable Securities pursuant to suchRegistration Statement. Notwithstanding the provisions of this Section 7, no Investor shall berequired to contribute, in the aggregate, any amount in excess of the amount by which the netproceeds actually received by such Investor from the applicable sale of the Registrable Securitiessubject to the Claim exceeds the amount of any damages that such Investor has otherwise beenrequired to pay, or would otherwise be required to pay under Section 6(b), by reason of such untrueor alleged untrue statement or omission or alleged omission.8. Reports Under the 1934 Act.          With a view to making available to the Investors the benefits of Rule 144, the Company agreesto:     (a) make and keep public information available, as those terms are understood and defined inRule 144;     (b) file with the SEC in a timely manner all reports and other documents required of theCompany under the 1933 Act and the 1934 Act so long as the Company remains subject to suchrequirements (it being understood and agreed that nothing herein shall limit any obligations of theCompany under the Securities Purchase Agreement) and the filing of such reports and other documentsis required for the applicable provisions of Rule 144; and     (c) furnish to each Investor so long as such Investor owns Registrable Securities, promptlyupon request, (i) a written statement by the Company, if true, that it has complied with thereporting, submission and posting requirements of Rule 144 and the 1934 Act, (ii) a copy of
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the most recent annual or quarterly report of the Company and such other reports and documentsso filed by the Company with the SEC if such reports are not publicly available via EDGAR, and(iii) such other information as may be reasonably requested to permit the Investors to sell suchsecurities pursuant to Rule 144 without registration.9. Assignment of Registration Rights.     All or any portion of the rights under this Agreement shall be automatically assignable byeach Investor to any transferee or assignee (as the case may be) of all or any portion of suchInvestor’s Registrable Securities or Warrants if: (i) such Investor agrees in writing with suchtransferee or assignee (as the case may be) to assign all or any portion of such rights, and a copyof such agreement is furnished to the Company within a reasonable time after such transfer orassignment (as the case may be); (ii) the Company is, within a reasonable time after such transferor assignment (as the case may be), furnished with written notice of (a) the name and address ofsuch transferee or assignee (as the case may be), and (b) the securities with respect to which suchregistration rights are being transferred or assigned (as the case may be); (iii) immediatelyfollowing such transfer or assignment (as the case may be) the further disposition of suchsecurities by such transferee or assignee (as the case may be) is restricted under the 1933 Act orapplicable state securities laws if so required; (iv) at or before the time the Company receivesthe written notice contemplated by clause (ii) of this sentence such transferee or assignee (as thecase may be) agrees in writing with the Company to be bound by all of the provisions containedherein; (v) such transfer or assignment (as the case may be) shall have been made in accordancewith the applicable requirements of the Securities Purchase Agreement and the Warrants (as the casemay be); and (vi) such transfer or assignment (as the case may be) shall have been conducted inaccordance with all applicable federal and state securities laws.10. Amendment of Registration Rights.     Provisions of this Agreement may be amended only with the written consent of the Company andthe Required Holders. Any amendment effected in accordance with this Section 10 shall be bindingupon each Investor and the Company. No waiver shall be effective unless it is in writing and signedby an authorized representative of the waiving party. No consideration shall be offered or paid toany Person to amend or consent to a waiver or modification of any provision of this Agreementunless the same consideration also is offered to all of the parties to this Agreement.11. Miscellaneous.     (a) Solely for purposes of this Agreement, a Person is deemed to be a holder of RegistrableSecurities whenever such Person owns, or is deemed to own, of record such Registrable Securities.If the Company receives conflicting instructions, notices or elections from two or more Personswith respect to the same Registrable Securities, the Company shall act upon the basis ofinstructions, notice or election received from such record owner of such Registrable Securities.     (b) Any notices, consents, waivers or other communications required or permitted to be givenunder the terms of this Agreement must be in writing and will be deemed to have been
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delivered: (i) upon receipt, when delivered personally; (ii) upon receipt, when sent byfacsimile or electronic mail (provided confirmation of transmission is mechanically orelectronically generated and kept on file by the sending party); (iii) with respect to Section3(c), by electronic mail (provided confirmation of transmission is electronically generated andkept on file by the sending party); or (iv) one (1) Business Day after deposit with a nationallyrecognized overnight delivery service with next day delivery specified, in each case, properlyaddressed to the party to receive the same. The addresses and facsimile numbers for suchcommunications shall be:If to the Company:Emisphere Technologies, Inc.