PREPARING THE NECESSARY
AMENDMENT OR SUPPLEMENT TO SUCH REGISTRATION STATEMENT.
IN ADDITION, FOR
AVOIDANCE OF DOUBT, THE HOLDERS OF HEDGING COMMON STOCK WILL BE SUBJECT TO THE
PROVISIONS OF SECTION 2.11
SECTION 2.3.
Exceptions to the Company's Obligations.
(A)
NOTWITHSTANDING ANYTHING IN SECTION 2.1 TO THE CONTRARY:
(I)
IF, AT ANY TIME AFTER GIVING A PIGGYBACK OFFERING NOTICE, THE
COMPANY SHALL DETERMINE FOR ANY REASON NOT TO PROCEED WITH THE PROPOSED
REGISTRATION OF THE SECURITIES TO BE SOLD BY IT, THE COMPANY MAY, AT ITS
ELECTION, GIVE WRITTEN NOTICE OF SUCH DETERMINATION TO THE HOLDERS AND,
THEREUPON, SHALL BE RELIEVED OF ITS OBLIGATION TO REGISTER ANY REGISTRABLE
SECURITIES IN CONNECTION
6
WITH SUCH REGISTRATION (BUT NOT FROM ITS OBLIGATION TO PAY THE REGISTRATION
EXPENSES IN CONNECTION THEREWITH); AND
(II)
IF A REGISTRATION PURSUANT TO SECTION 2.1 INVOLVES AN
UNDERWRITTEN OFFERING AND THE MANAGING UNDERWRITER ADVISES THE COMPANY IN
WRITING THAT, IN ITS OPINION, THE NUMBER OF EQUITY SECURITIES (INCLUDING
REGISTRABLE SECURITIES REQUESTED TO BE INCLUDED IN SUCH REGISTRATION) TO BE
INCLUDED IN SUCH REGISTRATION AS CONTEMPLATED BY THE COMPANY AND THE HOLDERS
WOULD BE LIKELY TO EXCEED THE MAXIMUM OFFERING SIZE, THEN THE COMPANY SHALL
INCLUDE IN SUCH REGISTRATION (A) FIRST, 100% OF THE SECURITIES THE COMPANY
PROPOSES TO SELL, AND (B) SECOND, TO THE EXTENT OF THE AMOUNT OF REGISTRABLE
SECURITIES REQUESTED TO BE INCLUDED IN SUCH REGISTRATION WHICH, IN THE OPINION
OF SUCH MANAGING UNDERWRITER CAN BE SOLD WITHOUT EXCEEDING THE MAXIMUM OFFERING
SIZE, THE AMOUNT OF REGISTRABLE SECURITIES WHICH THE HOLDERS HAVE REQUESTED TO
BE INCLUDED IN SUCH REGISTRATION, SUCH AMOUNT TO BE ALLOCATED PRO RATA AMONG ALL
REQUESTING HOLDERS AND ALL OTHER PERSONS ENTITLED TO REGISTRATION RIGHTS, ON THE
BASIS OF THE RELATIVE AMOUNT OF REGISTRABLE SECURITIES THEN HELD BY EACH SUCH
PERSON (PROVIDED THAT ANY SUCH AMOUNT THEREBY ALLOCATED TO ANY SUCH PERSON THAT
EXCEEDS SUCH PERSON'S REQUEST SHALL BE REALLOCATED AMONG THE REMAINING
REQUESTING PERSONS IN A LIKE MANNER TO THE EXTENT PRACTICABLE).
(B)
NOTWITHSTANDING ANYTHING IN SECTION 2.2 TO THE CONTRARY:
(I)
IN NO EVENT SHALL THE COMPANY BE REQUIRED TO EFFECT MORE THAN
(X) SIX (6) REGISTRATIONS PURSUANT TO SECTION 2.2(A) OR (Y) FOUR (4) MARKETED
UNDERWRITTEN OFFERINGS;
(II)
IN NO EVENT SHALL THE COMPANY BE OBLIGATED TO PREPARE AND FILE
(X) ANY SUCH REGISTRATION STATEMENT OR (Y) ANY PROSPECTUS SUPPLEMENT THERETO
RELATING TO A MARKETED UNDERWRITTEN OFFERING, IN EACH CASE WITH RESPECT TO
REGISTRABLE SECURITIES WITH A MARKET VALUE (BASED ON THEN CURRENT TRADING
PRICES) OF LESS THAN $25 MILLION, PROVIDED THAT THIS SECTION 2.2(B)(II) SHALL
NOT APPLY TO ANY REQUEST TO FILE A SHELF REGISTRATION STATEMENT PURSUANT TO
SECTION 2.2(A) THAT INCLUDES THE REGISTRATION OF ALL CONVERSION SHARES;
(III)
THE COMPANY SHALL NOT BE OBLIGATED TO (X) FILE A REGISTRATION
STATEMENT UNDER SECTION 2.2(A) WITHIN A PERIOD OF 90 DAYS AFTER THE EFFECTIVE
DATE OF ANY OTHER REGISTRATION STATEMENT, (1) FOR WHICH THE HOLDERS EXERCISED
THEIR RIGHTS PURSUANT SECTION 2.1 TO INCLUDE REGISTRABLE SECURITIES, PROVIDED
THAT THE COMPANY AND