pro rata based on the number of
Registrable Securities then held by such Investors which are covered by such
Registration Statement.
The Company may include securities other than
Registrable Securities on any Registration Statement to the extent the Company
is contractually obligated to do so pursuant to registration rights obligations
in existence prior to the date of this Agreement.
C.
LEGAL COUNSEL.
SUBJECT TO SECTION 5 HEREOF, THE BUYERS HOLDING
AT LEAST A MAJORITY OF THE REGISTRABLE SECURITIES SHALL HAVE THE RIGHT TO SELECT
ONE LEGAL COUNSEL TO REVIEW AND OVERSEE ANY OFFERING PURSUANT TO THIS SECTION 2
("LEGAL COUNSEL"), WHICH SHALL BE SCHULTE ROTH & ZABEL LLP OR SUCH OTHER COUNSEL
AS THEREAFTER DESIGNATED BY THE HOLDERS OF AT LEAST A MAJORITY OF THE
REGISTRABLE SECURITIES.
THE COMPANY AND LEGAL COUNSEL SHALL REASONABLY
COOPERATE WITH EACH OTHER IN PERFORMING THE COMPANY'S OBLIGATIONS UNDER THIS
AGREEMENT.
D.
INELIGIBILITY FOR FORM S-3.
IN THE EVENT THAT FORM S-3 IS NOT
AVAILABLE FOR THE REGISTRATION OF THE RESALE OF REGISTRABLE SECURITIES
HEREUNDER, THE COMPANY SHALL (I) REGISTER THE RESALE OF THE REGISTRABLE
SECURITIES ON ANOTHER APPROPRIATE FORM REASONABLY ACCEPTABLE TO THE HOLDERS OF
AT LEAST A MAJORITY OF THE REGISTRABLE SECURITIES AND (II) UNDERTAKE TO REGISTER
THE REGISTRABLE SECURITIES ON FORM S-3 AS SOON AS SUCH FORM IS AVAILABLE,
PROVIDED THAT THE COMPANY SHALL MAINTAIN THE EFFECTIVENESS OF THE REGISTRATION
STATEMENT THEN IN EFFECT UNTIL SUCH TIME AS A REGISTRATION STATEMENT ON FORM S-3
COVERING THE REGISTRABLE SECURITIES HAS BEEN DECLARED EFFECTIVE BY THE SEC.
E.
SUFFICIENT NUMBER OF SHARES REGISTERED.
IN THE EVENT THE
NUMBER OF SHARES AVAILABLE UNDER A REGISTRATION STATEMENT FILED PURSUANT TO
SECTION 2(A) IS INSUFFICIENT TO COVER ALL OF THE REGISTRABLE SECURITIES REQUIRED
TO BE COVERED BY SUCH REGISTRATION STATEMENT OR AN INVESTOR'S ALLOCATED PORTION
OF THE REGISTRABLE SECURITIES PURSUANT TO SECTION 2(B), THE COMPANY SHALL AMEND
THE REGISTRATION STATEMENT, OR FILE A NEW REGISTRATION STATEMENT (ON THE SHORT
FORM AVAILABLE THEREFOR, IF APPLICABLE), OR BOTH, SO AS TO COVER AT LEAST THE
NUMBER OF SUCH REGISTRABLE SECURITIES AS OF THE TRADING DAY IMMEDIATELY
PRECEDING THE DATE OF THE FILING OF SUCH AMENDMENT OR NEW REGISTRATION
STATEMENT, IN EACH CASE, AS SOON AS PRACTICABLE, BUT IN ANY EVENT NOT LATER THAN
FIFTEEN (15) DAYS AFTER THE NECESSITY THEREFOR ARISES.
THE COMPANY SHALL USE
ITS REASONABLE BEST EFFORTS TO CAUSE SUCH AMENDMENT AND/OR NEW REGISTRATION
STATEMENT TO BECOME EFFECTIVE AS SOON AS PRACTICABLE FOLLOWING THE FILING
THEREOF.
THE CALCULATION OF THE NUMBER OF REGISTRABLE SECURITIES REQUIRED TO BE
COVERED BY SUCH REGISTRATION STATEMENT SHALL BE MADE WITHOUT REGARD TO ANY
LIMITATIONS ON THE CONVERSION OF THE PREFERRED SHARES OR THE EXERCISE OF THE
WARRANTS AND SUCH CALCULATION SHALL ASSUME THAT THE PREFERRED SHARES AND THE
WARRANTS ARE THEN CONVERTIBLE OR EXERCISABLE INTO SHARES OF COMMON STOCK AND
ASSUMING THE MAXIMUM AMOUNT OF DIVIDENDS (AS DEFINED IN THE CERTIFICATE OF
DESIGNATIONS) RELATING TO THE PREFERRED SHARES WILL BE PAID ON THE PREFERRED
SHARES.
F.
EFFECT OF FAILURE TO FILE