OR REQUEST FOR FURTHER INFORMATION. EACH HOLDER ACKNOWLEDGES AND
AGREES THAT THE INFORMATION IN THE SELLING STOCKHOLDER QUESTIONNAIRE OR REQUEST
FOR FURTHER INFORMATION AS DESCRIBED IN THIS SECTION 2(D) WILL BE USED BY THE
COMPANY IN THE PREPARATION OF THE REGISTRATION STATEMENT AND HEREBY CONSENTS TO
THE INCLUSION OF SUCH INFORMATION IN THE REGISTRATION STATEMENT.
(E)
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, AT ANY TIME AFTER
THE REGISTRATION STATEMENT HAS BEEN DECLARED EFFECTIVE BY THE COMMISSION, THE
COMPANY MAY DELAY THE DISCLOSURE OF MATERIAL NON-PUBLIC INFORMATION CONCERNING
THE COMPANY IF THE DISCLOSURE OF SUCH INFORMATION AT THE TIME IS NOT, IN THE
GOOD FAITH JUDGMENT OF THE COMPANY, IN THE BEST INTERESTS OF THE COMPANY (A
"GRACE PERIOD"); PROVIDED, HOWEVER, THE COMPANY SHALL PROMPTLY (I) NOTIFY THE
HOLDERS IN WRITING OF THE EXISTENCE OF MATERIAL NON-PUBLIC INFORMATION GIVING
RISE TO A GRACE PERIOD (PROVIDED THAT THE COMPANY SHALL NOT DISCLOSE THE CONTENT
OF SUCH MATERIAL NON-PUBLIC INFORMATION TO THE HOLDERS) OR THE NEED TO FILE A
POST-EFFECTIVE AMENDMENT, AS APPLICABLE, AND THE DATE ON WHICH SUCH GRACE PERIOD
WILL BEGIN, AND (II) NOTIFY THE HOLDERS IN WRITING OF THE DATE ON WHICH THE
GRACE PERIOD ENDS; PROVIDED, FURTHER, THAT NO SINGLE GRACE PERIOD SHALL EXCEED
THIRTY (30) CONSECUTIVE DAYS, AND DURING ANY THREE HUNDRED SIXTY-FIVE (365) DAY
PERIOD, THE AGGREGATE OF ALL GRACE PERIODS SHALL NOT EXCEED AN AGGREGATE OF
SIXTY (60) DAYS (EACH GRACE PERIOD COMPLYING WITH THIS PROVISION BEING AN
"ALLOWABLE GRACE PERIOD").
IN THE EVENT THE COMPANY DOES DISCLOSE THE CONTENT
OF SUCH MATERIAL NON-PUBLIC INFORMATION THAT IS THE SUBJECT OF SUBPART (I) ABOVE
TO ANY HOLDER WITHOUT ITS CONSENT, THE COMPANY SHALL MAKE PUBLIC DISCLOSURE OF
SUCH MATERIAL NONPUBLIC INFORMATION WITHIN TWO (2) TRADING DAYS OF SUCH
DISCLOSURE AND NO GRACE PERIOD SHALL APPLY.
FOR PURPOSES OF DETERMINING THE
LENGTH OF A GRACE PERIOD, THE GRACE PERIOD SHALL BE DEEMED TO BEGIN ON AND
INCLUDE THE DATE THE HOLDERS RECEIVE THE NOTICE REFERRED TO IN CLAUSE (I) ABOVE
AND SHALL END ON AND INCLUDE THE LATER OF THE DATE THE HOLDERS RECEIVE THE
NOTICE REFERRED TO IN CLAUSE (II) ABOVE AND THE DATE REFERRED TO IN SUCH NOTICE;
PROVIDED, HOWEVER, THAT NO GRACE PERIOD SHALL BE LONGER THAN AN ALLOWABLE GRACE
PERIOD.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, THE COMPANY SHALL CAUSE THE
TRANSFER AGENT TO DELIVER UNLEGENDED COMMON STOCK TO A TRANSFEREE OF A HOLDER IN
ACCORDANCE WITH THE TERMS OF THE PURCHASE AGREEMENT IN CONNECTION WITH ANY SALE
OF REGISTRABLE SECURITIES WITH RESPECT TO WHICH A HOLDER
7
HAS ENTERED INTO A CONTRACT FOR SALE PRIOR TO THE HOLDER'S RECEIPT OF THE NOTICE
OF A GRACE PERIOD AND FOR WHICH THE HOLDER HAS NOT YET SETTLED.
(F)
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 AND (II) UNDERTAKE TO REGISTER THE
REGISTRABLE SECURITIES