FAITH TO SELL
REGISTRABLE SECURITIES IN CONNECTION THEREWITH FOR AN AGGREGATE GROSS SALES
PRICE OF AT LEAST $10 MILLION.
(C)
NOTWITHSTANDING ANYTHING IN SECTION 2.1 OR SECTION 2.2 TO THE
CONTRARY:
(I)
AT SUCH TIME AS ALL OF THE REGISTRABLE SECURITIES (OR SUCH
SECURITIES THAT WOULD BE REGISTRABLE SECURITIES BUT FOR THE PROVISO IMMEDIATELY
FOLLOWING CLAUSE (C) OF THE DEFINITION THEREOF) BENEFICIALLY OWNED BY A HOLDER
(TOGETHER WITH THOSE OF ITS AFFILIATES) CONSTITUTE LESS THAN 5% OF THE
OUTSTANDING COMMON STOCK AND CAN BE SOLD WITHOUT RESTRICTION UNDER RULE 144
UNDER THE SECURITIES ACT, THE COMPANY SHALL NOT BE REQUIRED TO EFFECT ANY
REGISTRATIONS, SHELF TAKE-DOWNS OR UNDERWRITTEN SHELF TAKE-DOWNS OF ANY KIND FOR
SUCH HOLDER PURSUANT TO SECTION 2.1 OR SECTION 2.2 (BUT THE COMPANY SHALL BE
REQUIRED TO MAINTAIN THE EFFECTIVENESS OF ANY SHELF REGISTRATION STATEMENT THAT
IS IN EFFECT AT SUCH TIME AS REQUIRED BY SECTION 2.4(B) FOR SIX ADDITIONAL
MONTHS FOLLOWING SUCH DATE); AND
(II)
IF ANY REGISTRATION INVOLVES AN UNDERWRITTEN OFFERING, ALL
HOLDERS REQUESTING TO PARTICIPATE IN ANY REGISTRATION IN CONNECTION WITH AN
UNDERWRITTEN OFFERING HEREUNDER MUST SELL ITS REGISTRABLE SECURITIES ON THE
BASIS PROVIDED IN ANY UNDERWRITING ARRANGEMENTS APPROVED BY THE PERSONS ENTITLED
TO APPROVE SUCH ARRANGEMENTS (WITH SUCH DIFFERENCES, INCLUDING ANY WITH RESPECT
TO INDEMNIFICATION AND LIABILITY INSURANCE, AS MAY BE CUSTOMARY OR APPROPRIATE
IN COMBINED PRIMARY AND SECONDARY OFFERINGS) AND COMPLETES AND EXECUTES ALL
REASONABLE QUESTIONNAIRES, POWERS OF ATTORNEY, UNDERWRITING AGREEMENTS,
HOLD-BACK AGREEMENT LETTERS (ALSO CUSTOMARILY REFERRED TO AS LOCK-UP LETTERS)
AND OTHER DOCUMENTS CUSTOMARILY REQUIRED UNDER THE TERMS OF SUCH UNDERWRITING
ARRANGEMENTS; PROVIDED, HOWEVER, THAT TO THE EXTENT SUCH HOLDER IS OBLIGATED
UNDER THE TERMS OF THE UNDERWRITING ARRANGEMENTS TO (I) MAKE REPRESENTATIONS AND
WARRANTIES OTHER THAN GENERALLY AS TO HIS, HER OR ITS RESPECTIVE (A) EXECUTION,
DELIVERY AND PERFORMANCE OF SUCH UNDERWRITING AGREEMENT AND THE AGREEMENTS
CONTEMPLATED THEREBY, (B) INDIVIDUAL OWNERSHIP OF THE REGISTRABLE SECURITIES
BEING SOLD PURSUANT TO SUCH UNDERWRITING AGREEMENT AND (C) INFORMATION PROVIDED
BY SUCH HOLDER IN WRITING SPECIFICALLY FOR INCLUSION IN THE PROSPECTUS AND
(II) AGREE TO PROVIDE INDEMNIFICATION FOR ANY LIABILITY ARISING OUT OF A BREACH
OF ANY SUCH REPRESENTATIONS OR WARRANTIES OF SUCH HOLDER THAT WOULD EXCEED THE
TOTAL PROCEEDS RECEIVED BY SUCH HOLDER FOR THE SALE OF SUCH REGISTRABLE
SECURITIES PURSUANT TO SUCH UNDERWRITING AGREEMENT, THEN SUCH HOLDER, TO THE
EXTENT HE, SHE OR IT DETERMINED NOT TO ENTER INTO SUCH UNDERWRITING AGREEMENT,
SHALL NOT BE OBLIGATED TO ENTER INTO A LOCK-UP AGREEMENT CONTEMPLATED BY
SECTION 2.11.
SECTION 2.4.
Registration Procedures.
If and whenever the Company is
required to effect a registration of any Registrable Securities as provided in
this Agreement, subject to the limitations set forth in Section 2.3, the Company
will:
9
(A)
PROMPTLY PREPARE AND FILE WITH THE SEC A REGISTRATION STATEMENT
WITH RESPECT TO SUCH REGISTRABLE SECURITIES AND USE
REASONABLE BEST EFFORTS TO
CAUSE A REGISTRATION STATEMENT WITH RESPECT TO A DEMAND REGISTRATION PURSUANT TO
SECTION 2.2 TO BE FILED (IN THE CASE OF A REGISTRATION PURSUANT TO