OTHERWISE INDICATED IN SUCH FINANCIAL STATEMENTS OR THE NOTES THERETO OR, IN THE
CASE OF UNAUDITED INTERIM STATEMENTS, TO THE EXTENT THEY MAY NOT INCLUDE
FOOTNOTES OR MAY BE CONDENSED ON SUMMARY STATEMENTS) AND (Z) FAIRLY PRESENT IN
ALL MATERIAL RESPECTS THE CONSOLIDATED FINANCIAL POSITION OF THE COMPANY AND ITS
CONSOLIDATED SUBSIDIARIES AS OF THE DATES THEREOF AND THE CONSOLIDATED RESULTS
OF THEIR OPERATIONS AND CASH FLOWS FOR THE PERIODS THEN ENDED (SUBJECT, IN THE
CASE OF UNAUDITED STATEMENTS, TO IMMATERIAL YEAR-END ADJUSTMENTS).
(B)
THE COMPANY SHALL (I) PREPARE AND FILE WITH
THE SEC SUCH AMENDMENTS (INCLUDING POST-EFFECTIVE AMENDMENTS) AND SUPPLEMENTS TO
ANY REGISTRATION STATEMENT REQUIRED TO BE FILED HEREUNDER AND THE PROSPECTUS
USED IN CONNECTION WITH ANY SUCH REGISTRATION STATEMENT AS MAY BE NECESSARY TO
KEEP SUCH REGISTRATION STATEMENT EFFECTIVE AT ALL TIMES DURING THE REGISTRATION
PERIOD, AND (II) DURING THE REGISTRATION PERIOD, COMPLY IN ALL MATERIAL RESPECTS
WITH THE PROVISIONS OF THE SECURITIES ACT WITH RESPECT TO THE DISPOSITION OF ALL
REGISTRABLE SECURITIES OF THE
4
COMPANY COVERED BY ANY SUCH REGISTRATION STATEMENT UNTIL SUCH TIME AS ALL OF
SUCH REGISTRABLE SECURITIES 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 EVENT THE NUMBER OF SHARES AVAILABLE UNDER
A REGISTRATION STATEMENT FILED PURSUANT TO THIS AGREEMENT IS, FOR ANY THREE (3)
CONSECUTIVE TRADING DAYS (THE LAST OF SUCH THREE (3) TRADING DAYS BEING THE
"REGISTRATION TRIGGER DATE"), INSUFFICIENT TO COVER ALL OF THE REGISTRABLE
SECURITIES THEN ISSUED OR ISSUABLE UPON CONVERSION OF THE PREFERRED STOCK
(WITHOUT GIVING EFFECT TO ANY LIMITATIONS ON CONVERSION CONTAINED IN THE
CERTIFICATE OF DESIGNATION), THE COMPANY SHALL PROVIDE EACH INVESTOR WRITTEN
NOTICE OF SUCH REGISTRATION TRIGGER DATE WITHIN THREE BUSINESS DAYS THEREAFTER
AND SHALL AMEND THE REGISTRATION STATEMENT, OR FILE A NEW REGISTRATION STATEMENT
(ON THE SHORT FORM AVAILABLE THEREFOR, IF APPLICABLE), OR BOTH, SO AS TO COVER
ALL OF THE REGISTRABLE SECURITIES ISSUED OR ISSUABLE UPON CONVERSION OF THE
PREFERRED STOCK (WITHOUT GIVING EFFECT TO ANY LIMITATIONS ON CONVERSION
CONTAINED IN THE CERTIFICATE OF DESIGNATION) AS OF THE REGISTRATION TRIGGER
DATE, IN EACH CASE, AS SOON AS PRACTICABLE, BUT IN ANY EVENT WITHIN 15 DAYS
AFTER THE REGISTRATION TRIGGER DATE.
THE COMPANY SHALL USE ITS BEST EFFORTS TO
CAUSE SUCH AMENDMENT(S) AND/OR NEW REGISTRATION STATEMENT(S) TO BECOME EFFECTIVE
AS SOON AS PRACTICABLE FOLLOWING THE FILING THEREOF.
IN THE EVENT THE COMPANY
FAILS TO OBTAIN THE EFFECTIVENESS OF ANY SUCH REGISTRATION STATEMENT WITHIN 75
DAYS AFTER A REGISTRATION TRIGGER DATE, EACH INVESTOR SHALL THEREAFTER HAVE THE
OPTION, EXERCISABLE IN WHOLE OR IN PART AT ANY TIME AND FROM TIME TO TIME BY
DELIVERY OF A WRITTEN NOTICE TO THE COMPANY (A "MANDATORY REDEMPTION NOTICE"),
TO REQUIRE THE COMPANY TO REDEEM FOR CASH SUCH NUMBER OF THE INVESTOR'S SHARES
OF THE PREFERRED STOCK AT A PRICE PER SHARE OF PREFERRED STOCK EQUAL TO $1,200
SUCH THAT, FOLLOWING SUCH REDEMPTION, THE TOTAL NUMBER OF REGISTRABLE SECURITIES