hereafter adopted by the Commission having substantially the
same effect as such Rule.
"Securities Act" means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
"Shares" shall have the meaning set forth in the Purchase Agreement.
"Trading Day" shall have the meaning set forth in the Purchase Agreement.
2.
REGISTRATION.
(A)
ON OR PRIOR TO EACH FILING DATE, THE COMPANY SHALL PREPARE AND FILE
WITH THE COMMISSION A REGISTRATION STATEMENT COVERING THE RESALE OF ALL
REGISTRABLE SECURITIES NOT ALREADY COVERED BY AN EXISTING AND EFFECTIVE
REGISTRATION STATEMENT (EXCEPT AS PROVIDED IN SECTION 2(B) AND SECTION 2(D)) FOR
AN OFFERING TO BE MADE ON A CONTINUOUS BASIS PURSUANT TO RULE 415. THE
REGISTRATION STATEMENT SHALL BE ON FORM S-3 (EXCEPT IF THE COMPANY IS NOT THEN
ELIGIBLE TO REGISTER FOR RESALE THE REGISTRABLE SECURITIES ON FORM S-3, IN WHICH
CASE SUCH REGISTRATION SHALL BE ON ANOTHER APPROPRIATE FORM FOR SUCH PURPOSE
REASONABLY ACCEPTABLE TO THE PURCHASER) AND SHALL CONTAIN (EXCEPT IF OTHERWISE
REQUIRED PURSUANT TO WRITTEN COMMENTS RECEIVED FROM THE COMMISSION UPON A REVIEW
OF SUCH REGISTRATION STATEMENT) THE "PLAN OF DISTRIBUTION" IN SUBSTANTIALLY THE
FORM ATTACHED HERETO AS ANNEX A, WITH SUCH CHANGES AS MAY BE REQUESTED BY THE
HOLDERS. THE COMPANY SHALL USE ITS COMMERCIALLY REASONABLE EFFORTS TO CAUSE EACH
REGISTRATION STATEMENT TO BE DECLARED EFFECTIVE UNDER THE SECURITIES ACT AS SOON
AS POSSIBLE AFTER THE RESPECTIVE DATES OF FILING THEREOF, BUT, IN ANY EVENT, NO
LATER THAN THE EFFECTIVENESS DATE FOR SUCH REGISTRATION STATEMENT, AND SHALL USE
ITS COMMERCIALLY REASONABLE EFFORTS TO KEEP THE REGISTRATION STATEMENT
CONTINUOUSLY EFFECTIVE UNDER THE SECURITIES ACT UNTIL THE DATE ON WHICH ALL
REGISTRABLE SECURITIES COVERED BY SUCH REGISTRATION STATEMENT HAVE CEASED TO BE
REGISTRABLE SECURITIES (THE "EFFECTIVENESS PERIOD"), SUBJECT TO
SECTION 6(D) HEREOF. IT IS AGREED AND UNDERSTOOD THAT THE
3
COMPANY SHALL, FROM TIME TO TIME, BE OBLIGATED TO FILE ONE OR MORE ADDITIONAL
REGISTRATION STATEMENTS TO COVER ANY REGISTRABLE SECURITIES WHICH ARE NOT
REGISTERED FOR RESALE PURSUANT TO A PRE-EXISTING REGISTRATION STATEMENT.
(B)
NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, INCLUDING
THE FACT THAT SUCH REGISTRABLE SECURITIES MAY BE REGISTERED PURSUANT TO THE
REGISTRATION STATEMENT REFERRED TO IN SECTION 2(D) BELOW, IN THE EVENT THAT THE
COMMISSION LIMITS THE AMOUNT OF REGISTRABLE SECURITIES THAT MAY BE INCLUDED AND
SOLD BY HOLDERS IN ANY REGISTRATION STATEMENT, INCLUDING THE INITIAL
REGISTRATION STATEMENT, PURSUANT TO RULE 415 OR ANY OTHER BASIS, THE COMPANY MAY
REDUCE THE NUMBER OF REGISTRABLE SECURITIES INCLUDED IN SUCH REGISTRATION
STATEMENT ON BEHALF OF THE HOLDERS (IN PROPORTION TO THE RESPECTIVE NUMBERS OF
REGISTRABLE SECURITIES REPRESENTED BY SHARES HELD BY SUCH HOLDERS ). IN SUCH
EVENT THE COMPANY SHALL GIVE THE HOLDERS PROMPT NOTICE OF THE NUMBER OF THE
REGISTRABLE SECURITIES EXCLUDED AND THE COMPANY WILL NOT BE LIABLE FOR ANY
LIQUIDATED DAMAGES UNDER SECTION 2(C), OR OTHERWISE UNDER THIS AGREEMENT, IN
CONNECTION WITH THE EXCLUDED REGISTRABLE SECURITIES. THE COMPANY SHALL USE ITS
COMMERCIALLY REASONABLE EFFORTS AT THE FIRST OPPORTUNITY THAT IS PERMITTED