LEGAL COUNSEL FOR THE COMPANY TO DELIVER, TO THE
TRANSFER AGENT FOR SUCH REGISTRABLE SECURITIES (WITH COPIES TO THE INVESTORS
WHOSE REGISTRABLE SECURITIES ARE INCLUDED IN SUCH REGISTRATION STATEMENT)
CONFIRMATION THAT SUCH REGISTRATION STATEMENT HAS BEEN DECLARED EFFECTIVE BY THE
SEC IN THE FORM ATTACHED HERETO AS EXHIBIT A.
R.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, AT ANY TIME AFTER THE
EFFECTIVE DATE, THE COMPANY MAY DELAY THE DISCLOSURE OF MATERIAL, NON-PUBLIC
INFORMATION CONCERNING THE COMPANY THE DISCLOSURE OF WHICH AT THE TIME IS NOT,
IN THE GOOD FAITH OPINION OF
9
THE BOARD OF DIRECTORS OF THE COMPANY AND ITS COUNSEL, IN THE BEST INTEREST OF
THE COMPANY AND, IN THE OPINION OF COUNSEL TO THE COMPANY, OTHERWISE REQUIRED (A
"GRACE PERIOD"); PROVIDED, THAT THE COMPANY SHALL PROMPTLY (I) NOTIFY THE
INVESTORS IN WRITING OF THE EXISTENCE OF MATERIAL, NON-PUBLIC INFORMATION GIVING
RISE TO A GRACE PERIOD (PROVIDED THAT IN EACH NOTICE THE COMPANY WILL NOT
DISCLOSE THE CONTENT OF SUCH MATERIAL, NON-PUBLIC INFORMATION TO THE INVESTORS)
AND THE DATE ON WHICH THE GRACE PERIOD WILL BEGIN, AND (II) NOTIFY THE INVESTORS
IN WRITING OF THE DATE ON WHICH THE GRACE PERIOD ENDS; AND, PROVIDED FURTHER,
THAT NO GRACE PERIOD SHALL EXCEED FIVE (5) CONSECUTIVE DAYS AND DURING ANY THREE
HUNDRED SIXTY FIVE (365) DAY PERIOD SUCH GRACE PERIODS SHALL NOT EXCEED AN
AGGREGATE OF TWENTY (20) DAYS AND THE FIRST DAY OF ANY GRACE PERIOD MUST BE AT
LEAST FIVE (5) TRADING DAYS AFTER THE LAST DAY OF ANY PRIOR GRACE PERIOD (EACH,
AN "ALLOWABLE GRACE PERIOD").
FOR PURPOSES OF DETERMINING THE LENGTH OF A GRACE
PERIOD ABOVE, THE GRACE PERIOD SHALL BEGIN ON AND INCLUDE THE DATE THE INVESTORS
RECEIVE THE NOTICE REFERRED TO IN CLAUSE (I) AND SHALL END ON AND INCLUDE THE
LATER OF THE DATE THE INVESTORS RECEIVE THE NOTICE REFERRED TO IN CLAUSE (II)
AND THE DATE REFERRED TO IN SUCH NOTICE.
THE PROVISIONS OF SECTION 3(G) HEREOF
SHALL NOT BE APPLICABLE DURING THE PERIOD OF ANY ALLOWABLE GRACE PERIOD.
UPON
EXPIRATION OF THE GRACE PERIOD, THE COMPANY SHALL AGAIN BE BOUND BY THE FIRST
SENTENCE OF SECTION 3(F) WITH RESPECT TO THE INFORMATION GIVING RISE THERETO
UNLESS SUCH MATERIAL, NON-PUBLIC INFORMATION IS NO LONGER APPLICABLE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, THE COMPANY SHALL CAUSE ITS TRANSFER
AGENT TO DELIVER UNLEGENDED SHARES OF COMMON STOCK TO A TRANSFEREE OF AN
INVESTOR IN ACCORDANCE WITH THE TERMS OF THE SECURITIES PURCHASE AGREEMENT IN
CONNECTION WITH ANY SALE OF REGISTRABLE SECURITIES WITH RESPECT TO WHICH AN
INVESTOR HAS ENTERED INTO A CONTRACT FOR SALE, AND DELIVERED A COPY OF THE
PROSPECTUS INCLUDED AS PART OF THE APPLICABLE REGISTRATION STATEMENT (UNLESS AN
EXEMPTION FROM SUCH PROSPECTUS DELIVERY REQUIREMENT EXISTS), PRIOR TO THE
INVESTOR'S RECEIPT OF THE NOTICE OF A GRACE PERIOD AND FOR WHICH THE INVESTOR
HAS NOT YET SETTLED.
4.
OBLIGATIONS OF THE INVESTORS.
A.
AT LEAST FIVE (5) BUSINESS DAYS PRIOR TO THE FIRST ANTICIPATED FILING
DATE OF A REGISTRATION STATEMENT, THE COMPANY