PURSUANT TO THE STANDBY EQUITY
DISTRIBUTION AGREEMENT, THE COMPANY SHALL AMEND THE REGISTRATION STATEMENT, OR
FILE A NEW REGISTRATION STATEMENT (ON THE SHORT FORM AVAILABLE THEREFORE, IF
APPLICABLE), OR BOTH, SO AS TO COVER ALL OF SUCH REGISTRABLE SECURITIES WHICH
THE INVESTOR HAS PURCHASED PURSUANT TO THE STANDBY EQUITY DISTRIBUTION AGREEMENT
AS SOON AS PRACTICABLE, BUT IN ANY EVENT NOT LATER THAN FIFTEEN (15) DAYS AFTER
THE NECESSITY THEREFORE ARISES.
THE COMPANY SHALL USE IT BEST EFFORTS TO CAUSE
SUCH AMENDMENT AND/OR NEW REGISTRATION STATEMENT TO BECOME EFFECTIVE AS SOON AS
PRACTICABLE FOLLOWING THE FILING THEREOF.
FOR PURPOSES OF THE FOREGOING
PROVISION, THE NUMBER OF SHARES AVAILABLE UNDER A REGISTRATION STATEMENT SHALL
BE DEEMED "INSUFFICIENT TO COVER ALL OF THE REGISTRABLE SECURITIES" IF AT ANY
TIME THE NUMBER OF REGISTRABLE SECURITIES ISSUABLE ON AN ADVANCE NOTICE DATE IS
GREATER THAN THE NUMBER OF SHARES AVAILABLE FOR RESALE UNDER SUCH REGISTRATION
STATEMENT.
3.
RELATED OBLIGATIONS.
A.
THE COMPANY SHALL KEEP THE REGISTRATION
STATEMENT EFFECTIVE PURSUANT TO RULE 415 AT ALL TIMES UNTIL THE DATE ON WHICH
THE INVESTOR SHALL HAVE SOLD ALL THE REGISTRABLE SECURITIES COVERED BY SUCH
REGISTRATION STATEMENT OR ALL SUCH SHARES ARE ELIGIBLE FOR RESALE PURSUANT TO
RULE 144(K) (THE "REGISTRATION PERIOD"), WHICH REGISTRATION STATEMENT (INCLUDING
ANY AMENDMENTS OR SUPPLEMENTS THERETO AND PROSPECTUSES CONTAINED THEREIN) SHALL
NOT CONTAIN ANY UNTRUE STATEMENT OF A MATERIAL FACT OR OMIT TO STATE A MATERIAL
FACT REQUIRED TO BE STATED THEREIN, OR NECESSARY TO MAKE THE STATEMENTS THEREIN,
IN LIGHT OF THE CIRCUMSTANCES IN WHICH THEY WERE MADE, NOT MISLEADING.
B.
THE COMPANY SHALL PREPARE AND FILE WITH
THE SEC SUCH AMENDMENTS (INCLUDING POST-EFFECTIVE AMENDMENTS) AND SUPPLEMENTS TO
A REGISTRATION STATEMENT AND THE PROSPECTUS USED IN CONNECTION WITH SUCH
REGISTRATION STATEMENT, WHICH PROSPECTUS IS TO BE FILED PURSUANT TO RULE 424
PROMULGATED UNDER THE SECURITIES ACT, AS MAY BE NECESSARY TO KEEP SUCH
REGISTRATION STATEMENT EFFECTIVE AT ALL TIMES DURING THE REGISTRATION PERIOD,
AND, DURING SUCH PERIOD, COMPLY WITH THE PROVISIONS OF THE SECURITIES ACT WITH
RESPECT TO THE DISPOSITION OF ALL REGISTRABLE SECURITIES OF THE COMPANY COVERED
BY SUCH REGISTRATION STATEMENT UNTIL SUCH TIME AS ALL OF SUCH REGISTRABLE
SECURITIES SHALL HAVE BEEN DISPOSED OF IN ACCORDANCE WITH THE INTENDED METHODS
OF DISPOSITION BY THE SELLER OR SELLERS THEREOF AS SET FORTH IN SUCH
REGISTRATION STATEMENT.
IN THE CASE OF AMENDMENTS AND SUPPLEMENTS TO A
REGISTRATION STATEMENT WHICH ARE REQUIRED TO BE FILED PURSUANT TO THIS AGREEMENT
(INCLUDING PURSUANT TO THIS SECTION 3(B)) BY REASON OF THE COMPANY'S FILING A
REPORT ON FORM 10-K, FORM 10-Q OR FORM 8-K OR ANY ANALOGOUS REPORT UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED (THE "EXCHANGE ACT"), THE COMPANY
SHALL HAVE INCORPORATED SUCH REPORT BY REFERENCE INTO THE REGISTRATION
STATEMENT, IF APPLICABLE, OR SHALL FILE SUCH AMENDMENTS OR SUPPLEMENTS WITH THE
SEC ON THE SAME DAY ON
2
WHICH THE EXCHANGE ACT REPORT IS FILED WHICH CREATED THE REQUIREMENT FOR THE
COMPANY TO AMEND OR SUPPLEMENT THE REGISTRATION STATEMENT.
C.
THE COMPANY