REGISTRABLE SECURITIES.
THE HOLDERS SHALL
(TOGETHER WITH THE COMPANY AS PROVIDED IN SUBSECTION 2.3(E)) ENTER INTO AN
UNDERWRITING AGREEMENT IN CUSTOMARY FORM WITH THE UNDERWRITER OR UNDERWRITERS
SELECTED FOR SUCH UNDERWRITING.
(C)
THE COMPANY SHALL ONLY BE OBLIGATED TO PROCEED WITH FILING A
REGISTRATION STATEMENT PURSUANT TO SECTION 2.1(A) IF (I) FORM S-3 IS THEN
AVAILABLE TO COMPANY FOR PURPOSES OF REGISTERING THE OFFER AND RESALE OF
REGISTRABLE SECURITIES BY THE HOLDERS; AND (II) THE COMPANY HAS NOT PREVIOUSLY
PREPARED, FILED AND CAUSED TO BECOME EFFECTIVE ONE REGISTRATION STATEMENT ON
FORM S-3 PURSUANT TO SECTION 2.1(A); PROVIDED, HOWEVER, THAT IN THE EVENT THE
SEC INFORMS THE COMPANY THAT ALL OF THE REGISTRABLE SECURITIES CANNOT, AS A
RESULT OF THE APPLICATION OF RULE 415, BE REGISTERED FOR RESALE ON A SINGLE
REGISTRATION STATEMENT, THE COMPANY SHALL PROMPTLY (A) INFORM EACH OF THE
HOLDERS THEREOF AND USE ITS REASONABLE BEST EFFORTS TO FILE AMENDMENTS TO THE
REGISTRATION STATEMENT AS REQUIRED BY THE SEC AND/OR (B) WITHDRAW SUCH
REGISTRATION STATEMENT AND FILE A NEW REGISTRATION STATEMENT (A "NEW
REGISTRATION STATEMENT"), IN
3
EITHER CASE COVERING THE MAXIMUM NUMBER OF REGISTRABLE SECURITIES PERMITTED TO
BE REGISTERED BY THE SEC ON FORM S-3.
IN THE EVENT THE COMPANY AMENDS THE
REGISTRATION STATEMENT OR FILES A NEW REGISTRATION STATEMENT, AS THE CASE MAY
BE, UNDER CLAUSES (II)(A) OR (B) ABOVE, THE COMPANY SHALL, PROVIDED THAT
FORM S-3 IS THEN AVAILABLE TO COMPANY FOR PURPOSES OF REGISTERING THE OFFER AND
RESALE OF REGISTRABLE SECURITIES BY THE HOLDERS, USE ITS COMMERCIALLY REASONABLE
EFFORTS TO FILE WITH THE SEC, AS PROMPTLY AS ALLOWED BY SEC OR STAFF GUIDANCE
PROVIDED TO THE COMPANY OR TO REGISTRANTS OF SECURITIES IN GENERAL, ONE OR MORE
REGISTRATION STATEMENTS ON FORM S-3 TO REGISTER FOR RESALE THOSE REGISTRABLE
SECURITIES THAT WERE NOT REGISTERED FOR RESALE ON THE INITIAL REGISTRATION
STATEMENT, AS AMENDED, OR THE NEW REGISTRATION STATEMENT (THE "REMAINDER
REGISTRATION STATEMENTS").
(D)
A REGISTRATION STATEMENT SHALL NOT BE
CONSIDERED "PREPARED, FILED AND CAUSED TO BECOME EFFECTIVE" FOR PURPOSES OF THIS
SECTION 2.1(C) UNTIL SUCH TIME AS SUCH REGISTRATION STATEMENT HAS BEEN DECLARED
EFFECTIVE BY THE SEC (UNLESS THE HOLDER OR HOLDERS INITIATING SUCH REQUEST
WITHDRAWS ITS REQUEST FOR SUCH REGISTRATION (OTHER THAN AS A RESULT OF
INFORMATION CONCERNING THE BUSINESS OR FINANCIAL CONDITION OF THE COMPANY WHICH
IS MADE KNOWN TO SUCH HOLDER AFTER THE DATE ON WHICH SUCH REGISTRATION WAS
REQUESTED) AND ELECT NOT TO PAY THE REGISTRATION EXPENSES THEREFOR PURSUANT TO
SECTION 2.5).
(E)
NOTWITHSTANDING THE FOREGOING, IF THE
COMPANY SHALL FURNISH THE HOLDERS A CERTIFICATE SIGNED BY THE CHIEF EXECUTIVE
OFFICER OF THE COMPANY STATING THAT IN THE GOOD FAITH JUDGMENT OF THE BOARD OF
DIRECTORS OF THE COMPANY IT WOULD BE MATERIALLY DETRIMENTAL TO THE COMPANY AND
ITS SHAREHOLDERS FOR SUCH REGISTRATION STATEMENT TO BECOME EFFECTIVE OR TO
REMAIN EFFECTIVE AS LONG AS SUCH REGISTRATION STATEMENT WOULD OTHERWISE BE
REQUIRED TO REMAIN EFFECTIVE BECAUSE SUCH ACTION (X) WOULD MATERIALLY INTERFERE
WITH A SIGNIFICANT ACQUISITION, CORPORATE REORGANIZATION OR OTHER SIMILAR