A PERIOD
COMMENCING ON THE DATE THAT SUCH SHELF REGISTRATION STATEMENT IS INITIALLY
DECLARED EFFECTIVE BY THE COMMISSION AND TERMINATING ON THE DATE WHEN ALL OF THE
REGISTRABLE SECURITIES COVERED BY SUCH SHELF REGISTRATION STATEMENT HAVE BEEN
SOLD PURSUANT TO SUCH SHELF REGISTRATION STATEMENT OR CEASE TO BE REGISTRABLE
SECURITIES (THE "EFFECTIVENESS PERIOD'); PROVIDED, HOWEVER, THE COMPANY IS
PERMITTED TO SUSPEND SALES OF THE REGISTRABLE SECURITIES DURING ANY DELAY
PERIOD. THE COMPANY WILL BE DEEMED NOT TO HAVE USED ITS BEST EFFORTS TO CAUSE
THE SHELF REGISTRATION STATEMENT TO BECOME, OR TO REMAIN, EFFECTIVE DURING THE
REQUISITE PERIOD IF IT VOLUNTARILY TAKES ANY ACTION OR OMITS TO TAKE ANY ACTION
THAT WOULD RESULT IN THE SHELF REGISTRATION STATEMENT NOT BEING DECLARED
EFFECTIVE OR THAT WOULD RESULT IN THE HOLDERS OF REGISTRABLE SECURITIES COVERED
THEREBY NOT BEING ABLE TO OFFER AND SELL SUCH REGISTRABLE SECURITIES DURING THAT
PERIOD, UNLESS SUCH ACTION OR OMISSION IS REQUIRED BY APPLICABLE LAW AND EXCEPT
DURING ANY DELAY PERIOD.
(C)
DELAY PERIOD. THE TERM "DELAY PERIOD"
MEANS, WITH RESPECT TO ANY OBLIGATION TO KEEP ANY SHELF REGISTRATION STATEMENT
OR PROSPECTUS USABLE FOR RESALES PURSUANT TO THIS SECTION 1.2, THE SHORTEST
PERIOD OF TIME DETERMINED IN GOOD FAITH BY THE COMPANY'S BOARD OF DIRECTORS TO
BE NECESSARY FOR SUCH PURPOSE WHEN THERE EXIST CIRCUMSTANCES RELATING TO A
MATERIAL PENDING DEVELOPMENT, INCLUDING, BUT NOT LIMITED TO, A PENDING OR
CONTEMPLATED MATERIAL ACQUISITION OR MERGER OR OTHER MATERIAL TRANSACTION OR
SIMILAR EVENT, WHICH WOULD REQUIRE DISCLOSURE BY THE COMPANY IN SUCH SHELF
REGISTRATION STATEMENT OR PROSPECTUS OF MATERIAL NON-
3
PUBLIC INFORMATION WHICH THE COMPANY DETERMINES IN GOOD FAITH UPON THE ADVICE OF
ITS COUNSEL THAT IT HAS A BONA FIDE BUSINESS PURPOSE FOR KEEPING CONFIDENTIAL
AND NON-PUBLIC AND THE NON-DISCLOSURE OF WHICH IN SUCH SHELF REGISTRATION
STATEMENT OR PROSPECTUS MIGHT CAUSE SUCH SHELF REGISTRATION STATEMENT OR
PROSPECTUS TO FAIL TO COMPLY WITH APPLICABLE DISCLOSURE REQUIREMENTS. A DELAY
PERIOD SHALL COMMENCE ON AND INCLUDE THE DATE THAT THE COMPANY GIVES WRITTEN
NOTICE (A "DELAY NOTICE") TO THE HOLDERS THAT THE PROSPECTUS IS NO LONGER USABLE
AS A RESULT OF A MATERIAL PENDING DEVELOPMENT AND SHALL END ON THE DATE WHEN THE
HOLDERS ARE ADVISED IN WRITING BY THE COMPANY THAT THE CURRENT DELAY PERIOD HAS
TERMINATED (IT BEING UNDERSTOOD THAT THE COMPANY SHALL GIVE SUCH NOTICE TO ALL
HOLDERS PROMPTLY UPON MAKING THE DETERMINATION THAT THE DELAY PERIOD HAS ENDED);
PROVIDED, HOWEVER, AND NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY THE
COMPANY IS ONLY ENTITLED TO FOUR (4) DELAY PERIODS HAVING DURATIONS OF NOT MORE
THAN 30 DAYS EACH DURING ANY CONSECUTIVE 12 MONTH PERIOD, AND NOT TO EXCEED MORE
THAN 90 DAYS IN THE AGGREGATE IN ANY CONSECUTIVE 12 MONTH PERIOD. THE COMPANY
COVENANTS AND AGREES THAT IT WILL NOT DELIVER A DELAY NOTICE WITH RESPECT TO A
DELAY PERIOD UNLESS COMPANY OFFICERS AND DIRECTORS AND THEIR AFFILIATES AND ANY
OTHER HOLDERS OF REGISTRATION RIGHTS WITH RESPECT TO THE COMPANY'S COMMON STOCK
ARE ALSO PROHIBITED BY THE COMPANY