2
be "reviewed" or will not be subject to further review, a request for
acceleration of effectiveness in accordance with Rule 461 promulgated under the
Securities Act (an "ACCELERATION REQUEST"), which request shall request an
effective date that is within three (3) Business Days of the date of such
request); provided that the Company agrees to use its commercially reasonable
efforts to cause the Mandatory Registration Statement to be declared effective
no later than the date that is seventy five (75) days after the Closing Date in
the event the Mandatory Registration Statement will not be "reviewed".
The
Company shall notify each Investor in writing promptly (and in any event within
one (1) Business Day) after the Company's submission of an Acceleration Request
to the SEC.
The Company shall be required to keep the Mandatory Registration
Statement continuously effective (including through the filing of any required
post-effective amendments) until the earliest to occur of (i) the date after
which all of the Registrable Shares registered thereunder shall have been sold,
(ii) the second (2nd) anniversary of the effective date of the Mandatory
Registration Statement and (iii) the date on which the Investor may sell all
Registrable Shares then held by the Investor without restriction under Rule
144(k) of the Securities Act; provided, that in any case such date shall be
extended by the amount of time of any Suspension Period (as defined below) (the
"EFFECTIVENESS PERIOD").
Thereafter, the Company shall be entitled to withdraw
the Mandatory Registration Statement and, upon such withdrawal, the Investors
shall have no further right to offer or sell any of the Registrable Shares
pursuant to the Mandatory Registration Statement (or any prospectus relating
thereto).
(B)
NOTWITHSTANDING ANYTHING IN THIS SECTION 2
TO THE CONTRARY, IF THE COMPANY SHALL FURNISH TO THE INVESTORS A CERTIFICATE
SIGNED BY THE PRESIDENT OR CHIEF EXECUTIVE OFFICER OF THE COMPANY STATING THAT
THE BOARD HAS MADE THE GOOD FAITH DETERMINATION UPON THE ADVICE OF COUNSEL (I)
THAT THE CONTINUED USE BY THE INVESTORS OF A REGISTRATION STATEMENT FOR PURPOSES
OF EFFECTING OFFERS OR SALES OF REGISTRABLE SHARES PURSUANT THERETO WOULD
REQUIRE, UNDER THE SECURITIES ACT AND THE RULES AND REGULATIONS PROMULGATED
THEREUNDER, PREMATURE DISCLOSURE IN A REGISTRATION STATEMENT (OR THE PROSPECTUS
RELATING THERETO) OF MATERIAL, NONPUBLIC INFORMATION CONCERNING THE COMPANY, ITS
BUSINESS OR PROSPECTS OR ANY PROPOSED MATERIAL TRANSACTION INVOLVING THE
COMPANY, (II) THAT SUCH PREMATURE DISCLOSURE WOULD BE MATERIALLY ADVERSE TO THE
COMPANY, ITS BUSINESS OR PROSPECTS OR ANY SUCH PROPOSED MATERIAL TRANSACTION AND
(III) THAT IT IS THEREFORE NECESSARY TO SUSPEND THE USE BY THE INVESTORS OF, OR
THE FILING OF, A REGISTRATION STATEMENT (AND THE PROSPECTUS RELATING THERETO),
THEN THE RIGHT OF THE INVESTORS TO USE A REGISTRATION STATEMENT (AND THE
PROSPECTUS RELATING THERETO) FOR PURPOSES OF EFFECTING OFFERS OR SALES OF
REGISTRABLE SHARES PURSUANT THERETO OR THE FILING OF ANY REGISTRATION STATEMENT
SHALL BE SUSPENDED FOR A PERIOD (THE "SUSPENSION PERIOD") NOT GREATER THAN
FORTY-FIVE (45) CONSECUTIVE BUSINESS DAYS AND NOT MORE THAN NINETY (90)