TO OBTAIN STOCKHOLDER APPROVAL AT THE STOCKHOLDERS
MEETING, THE DATE OF THE STOCKHOLDERS MEETING (BUT NOT LATER THAN THE REQUIRED
EFFECTIVENESS DATE), AND SHALL USE ITS REASONABLE BEST EFFORTS TO KEEP THE SHELF
REGISTRATION STATEMENT CONTINUOUSLY EFFECTIVE UNDER THE SECURITIES ACT, SUBJECT
TO THE PROVISIONS OF SECTIONS 5.4
5
AND 5.5 HEREOF, UNTIL THE EARLIER OF (I) SUCH TIME AS THE COMPANY DELIVERS AN
OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE DESIGNATED HOLDERS HOLDING A
MAJORITY OF THE THEN-OUTSTANDING REGISTRABLE SECURITIES (IT BEING AGREED THAT
GREENBERG TRAURIG, LLP SHALL BE SATISFACTORY COUNSEL) THAT EACH DESIGNATED
HOLDER MAY SELL IN THE OPEN MARKET IN A SINGLE TRANSACTION ALL REGISTRABLE
SECURITIES THEN HELD BY EACH SUCH DESIGNATED HOLDER PURSUANT TO RULE 144(K) OF
THE SECURITIES ACT (OR ANY SIMILAR PROVISION THEN IN FORCE) WITHOUT BEING
SUBJECT TO THE VOLUME LIMITATIONS THEREOF OR OTHERWISE UNDER AN APPLICABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, AS AMENDED,
AND ALL OTHER APPLICABLE SECURITIES AND BLUE SKY LAWS, (II) ALL REGISTRABLE
SECURITIES COVERED BY SUCH SHELF REGISTRATION STATEMENT HAVE BEEN SOLD PURSUANT
TO SUCH SHELF REGISTRATION STATEMENT OR (III) ALL REGISTRABLE SECURITIES HAVE
BEEN SOLD PURSUANT TO RULE 144 (SUCH PERIOD BEING THE "EFFECTIVENESS PERIOD").
(B)
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN THE
EVENT THE STAFF OF THE SEC (THE "STAFF") OR THE SEC SEEKS TO CHARACTERIZE ANY
OFFERING PURSUANT TO A REGISTRATION STATEMENT FILED PURSUANT TO THIS AGREEMENT
AS CONSTITUTING AN OFFERING OF SECURITIES BY OR ON BEHALF OF THE COMPANY SUCH
THAT RULE 415 IS NOT AVAILABLE TO THE COMPANY TO REGISTER THE RESALE OF SUCH
REGISTRABLE SECURITIES AND AS A RESULT THE STAFF OR THE SEC DOES NOT PERMIT SUCH
REGISTRATION STATEMENT TO BECOME EFFECTIVE AND USED FOR RESALES IN A MANNER THAT
PERMITS THE CONTINUOUS RESALE AT THE MARKET BY THE DESIGNATED HOLDERS
PARTICIPATING THEREIN (OR AS OTHERWISE MAY BE ACCEPTABLE TO EACH DESIGNATED
HOLDER) WITHOUT BEING NAMED THEREIN AS AN "UNDERWRITER," THEN THE COMPANY SHALL
REDUCE THE NUMBER OF SHARES TO BE INCLUDED IN SUCH REGISTRATION STATEMENT BY ALL
DESIGNATED HOLDERS UNTIL SUCH TIME AS THE STAFF AND THE SEC SHALL SO PERMIT SUCH
REGISTRATION STATEMENT TO BECOME EFFECTIVE AS AFORESAID. IN MAKING SUCH
REDUCTION, THE COMPANY SHALL REDUCE THE NUMBER OF REGISTRABLE SECURITIES TO BE
INCLUDED BY ALL DESIGNATED HOLDERS ON A PRO RATA BASIS (BASED UPON THE NUMBER OF
REGISTRABLE SECURITIES OTHERWISE REQUIRED TO BE INCLUDED FOR EACH DESIGNATED
HOLDER) UNLESS THE INCLUSION OF SHARES BY A PARTICULAR DESIGNATED HOLDER OR A
PARTICULAR SET OF DESIGNATED HOLDERS RESULTS IN THE STAFF OR THE SEC'S TAKING
THE POSITION THAT THE INCLUSION OF SUCH REGISTRABLE SECURITIES BY SUCH
DESIGNATED HOLDERS WOULD CONSTITUTE A REGISTRATION "BY OR ON BEHALF OF THE
COMPANY," IN WHICH EVENT THE SHARES HELD BY SUCH DESIGNATED HOLDER OR SET OF
DESIGNATED HOLDERS SHALL BE THE ONLY SHARES SUBJECT TO REDUCTION (AND IF BY A
SET OF DESIGNATED HOLDERS ON A PRO RATA BASIS BY SUCH DESIGNATED HOLDERS OR ON
SUCH OTHER