ELIGIBLE MARKET;
5.2
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF
THE COMPANY.
THE OBLIGATION OF THE COMPANY TO SELL SECURITIES AT THE CLOSING IS
SUBJECT TO THE SATISFACTION OR WAIVER BY THE COMPANY, AT OR BEFORE THE CLOSING,
OF EACH OF THE FOLLOWING CONDITIONS:
(A)
REPRESENTATIONS AND WARRANTIES.
THE
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS CONTAINED HEREIN SHALL BE TRUE
AND CORRECT IN ALL MATERIAL RESPECTS AS OF THE DATE WHEN MADE AND AS OF THE
CLOSING DATE AS THOUGH MADE ON AND AS OF SUCH DATE; AND
(B)
PERFORMANCE.
THE PURCHASERS SHALL HAVE
PERFORMED, SATISFIED AND COMPLIED IN ALL MATERIAL RESPECTS WITH ALL COVENANTS,
AGREEMENTS AND CONDITIONS REQUIRED BY THE TRANSACTION DOCUMENTS TO BE PERFORMED,
SATISFIED OR COMPLIED WITH BY THE PURCHASERS AT OR PRIOR TO THE CLOSING.
ARTICLE VI
REGISTRATION RIGHTS
6.1
SHELF REGISTRATION
(A)
AS PROMPTLY AS POSSIBLE, AND IN ANY EVENT
ON OR PRIOR TO THE FILING DATE, THE COMPANY SHALL PREPARE AND FILE WITH THE
COMMISSION A "SHELF" REGISTRATION STATEMENT COVERING THE RESALE OF ALL
REGISTRABLE SECURITIES 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 IN ACCORDANCE HEREWITH AS THE PURCHASERS MAY CONSENT) AND SHALL CONTAIN
(EXCEPT IF OTHERWISE DIRECTED BY THE PURCHASERS) THE "PLAN OF DISTRIBUTION"
ATTACHED HERETO AS EXHIBIT D.
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(B)
THE COMPANY SHALL USE ITS BEST EFFORTS TO
CAUSE THE REGISTRATION STATEMENT TO BE DECLARED EFFECTIVE BY THE COMMISSION AS
PROMPTLY AS POSSIBLE AFTER THE FILING THEREOF, BUT IN ANY EVENT PRIOR TO THE
REQUIRED EFFECTIVENESS DATE, AND SHALL USE ITS BEST EFFORTS TO KEEP THE
REGISTRATION STATEMENT CONTINUOUSLY EFFECTIVE UNDER THE SECURITIES ACT UNTIL THE
EXPIRATION OF THE EFFECTIVENESS PERIOD.
(C)
THE COMPANY SHALL NOTIFY EACH PURCHASER IN
WRITING PROMPTLY (AND IN ANY EVENT WITHIN ONE TRADING DAY) AFTER RECEIVING
NOTIFICATION FROM THE COMMISSION THAT THE REGISTRATION STATEMENT HAS BEEN
DECLARED EFFECTIVE.
(D)
IF: (I) ANY REGISTRATION STATEMENT IS NOT
FILED ON OR PRIOR TO THE FILING DATE (IF THE COMPANY FILES SUCH REGISTRATION
STATEMENT WITHOUT AFFORDING THE PURCHASERS THE OPPORTUNITY TO REVIEW AND COMMENT
ON THE SAME AS REQUIRED BY SECTION 6.2(A) HEREOF, THE COMPANY SHALL NOT BE
DEEMED TO HAVE SATISFIED THIS CLAUSE (I)), OR THE COMPANY FAILS TO FILE WITH THE
COMMISSION A REQUEST FOR ACCELERATION IN ACCORDANCE WITH RULE 461 PROMULGATED
UNDER THE SECURITIES ACT, WITHIN FIVE TRADING DAYS AFTER THE DATE THAT THE
COMPANY IS NOTIFIED (ORALLY OR IN WRITING, WHICHEVER IS EARLIER) BY THE
COMMISSION THAT A REGISTRATION STATEMENT WILL NOT BE "REVIEWED," OR WILL NOT BE
SUBJECT TO FURTHER REVIEW, OR (III) A REGISTRATION STATEMENT FILED HEREUNDER IS
NOT DECLARED EFFECTIVE BY THE COMMISSION BY THE REQUIRED EFFECTIVENESS DATE, OR
(IV) AFTER A REGISTRATION STATEMENT IS FILED WITH AND DECLARED EFFECTIVE BY THE
COMMISSION, SUCH REGISTRATION STATEMENT CEASES TO BE