EXCEPT AS REQUIRED BY LAW.
IN THE EVENT THAT THE COMPANY GIVES
THE HOLDERS THE NOTICE SPECIFIED IN THIS SECTION 2.3(B)(IV), THE DEMAND PARTY
SHALL HAVE THE RIGHT, WITHIN 15 DAYS AFTER RECEIPT THEREOF, TO WITHDRAW ITS
REQUEST UNDER SECTION 2.2, IN WHICH CASE SUCH REQUEST SHALL NOT BE COUNTED AS A
DEMAND FOR PURPOSES OF SECTION 2.2 OR FOR PURPOSES OF THE LIMITATIONS SET FORTH
IN SECTION 2.3(B)(I);
(V)
IF THE COMPANY RECEIVES A REQUEST FOR REGISTRATION PURSUANT TO
SECTION 2.2, AT A TIME WHEN THERE IS A MATERIAL PENDING EVENT, THEN THE COMPANY
MAY SUSPEND SALES UNDER A SHELF REGISTRATION STATEMENT, OR A REGISTRATION
STATEMENT PURSUANT TO WHICH REGISTRABLE SECURITIES ARE NOT IMMEDIATELY SOLD
AFTER THE EFFECTIVENESS THEREOF, FOR A PERIOD NOT TO EXCEED 60 DAYS (OR, IF
LONGER, THE PERIOD OF THE APPLICABLE MARKET STANDOFF AGREEMENT PURSUANT TO
SECTION 2.11) IN ANY 90-DAY PERIOD UPON PROVIDING THE HOLDERS WITH WRITTEN
NOTICE OF SUCH SUSPENSION (WHICH NOTICE SHALL INCLUDE A STATEMENT OF THE REASON
FOR SUCH SUSPENSION); PROVIDED, THAT THE COMPANY SHALL SUSPEND THE FILING OF A
REGISTRATION STATEMENT PURSUANT TO THIS SECTION 2.3(B)(V) FOR NO MORE THAN
90 DAYS IN THE AGGREGATE IN ANY TWELVE-MONTH PERIOD AND THREE (3) TIMES IN ANY
TWELVE-MONTH PERIOD RESPECT OF ALL REQUESTED REGISTRATIONS; PROVIDED, HOWEVER,
THAT IN THE EVENT THAT THE COMPANY EXERCISES ITS RIGHT TO REDEEM THE NOTES
PURSUANT TO SECTION 3.04 OF THE INDENTURE OR TO REQUIRE CONVERSION OF THE
SERIES A PREFERRED STOCK PURSUANT TO SECTION 5(C) OF THE CERTIFICATE OF
DESIGNATION OF THE PREFERRED STOCK, THEN THE COMPANY MAY NOT POSTPONE (OR
CONTINUE ANY POSTPONEMENT OF) (INCLUDING ANY DEEMED POSTPONEMENT PURSUANT TO
SECTION 2.11(A)) THE FILING OF A REGISTRATION STATEMENT AT ANY TIME DURING THE
PERIOD COMMENCING ON THE DELIVERY OF THE NOTICE OF REDEMPTION OR MANDATORY
CONVERSIONS AS APPLICABLE, AND ENDING 120 DAYS THEREAFTER UNLESS AND TO THE
EXTENT SECTION 2.11(B) IS APPLICABLE; AND PROVIDED FURTHER THAT THE COMPANY
SHALL MAKE PROMPT AND ADEQUATE DISCLOSURE OF ANY MATERIAL INFORMATION REQUIRED
TO BE DISCLOSED FROM TIME TO TIME IN ACCORDANCE WITH LAW AND NASDAQ RULES.
UPON
RECEIPT OF A NOTICE FROM THE COMPANY IN ACCORDANCE WITH THE TERMS OF THIS
SECTION 2.3(B)(V), EACH HOLDER AGREES NOT TO SELL OR OFFER TO SELL ANY
REGISTRABLE SECURITIES PURSUANT TO SUCH SHELF REGISTRATION STATEMENT UNTIL THE
COMPANY NOTIFIES SUCH HOLDER THAT THE SHELF REGISTRATION STATEMENT
8
MAY BE USED (WHICH NOTICE THE COMPANY SHALL PROMPTLY PROVIDE FOLLOWING THE
TERMINATION OF THE EVENT OR CIRCUMSTANCE GIVING RISE TO SUCH SUSPENSION).
EACH
HOLDER SHALL KEEP CONFIDENTIAL ANY COMMUNICATIONS RECEIVED BY IT FROM THE
COMPANY REGARDING THE SUSPENSION OF SALES PURSUANT TO THIS
SECTION 2.3(B)(V) (INCLUDING THE FACT OF THE SUSPENSION), EXCEPT AS REQUIRED BY
LAW; AND
(VI)
IN NO EVENT SHALL THE COMPANY BE OBLIGATED TO PREPARE AND FILE IN
CONNECTION WITH ANY SHELF TAKE-DOWN ANY POST-EFFECTIVE AMENDMENT TO A SHELF
REGISTRATION OR ANY PROSPECTUS SUPPLEMENT WITH RESPECT TO SUCH SHELF TAKE-DOWN
UNLESS THE HOLDERS REQUESTING SUCH FILING EXPECT IN GOOD