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
FAITH TO SELL REGISTRABLE SECURITIES IN CONNECTION THEREWITH FOR AN AGGREGATE
GROSS SALES PRICE OF AT LEAST $10 MILLION.
(C)
NOTWITHSTANDING ANYTHING IN SECTION 2.1 OR
SECTION 2.2 TO THE CONTRARY:
(I)
AT SUCH TIME AS ALL OF THE REGISTRABLE
SECURITIES (OR SUCH SECURITIES THAT WOULD BE REGISTRABLE SECURITIES BUT FOR THE
PROVISO IMMEDIATELY FOLLOWING CLAUSE (C) OF THE DEFINITION THEREOF) BENEFICIALLY
OWNED BY A HOLDER (TOGETHER WITH THOSE OF ITS AFFILIATES) CONSTITUTE LESS THAN
5% OF THE OUTSTANDING COMMON STOCK AND CAN BE SOLD WITHOUT RESTRICTION UNDER
RULE 144 UNDER THE SECURITIES ACT, THE COMPANY SHALL NOT BE REQUIRED TO EFFECT
ANY REGISTRATIONS, SHELF TAKE-DOWNS OR UNDERWRITTEN SHELF TAKE-DOWNS OF ANY KIND
FOR SUCH HOLDER PURSUANT TO SECTION 2.1 OR SECTION 2.2 (BUT THE COMPANY SHALL BE
REQUIRED TO MAINTAIN THE EFFECTIVENESS OF ANY SHELF REGISTRATION STATEMENT THAT
IS IN EFFECT AT SUCH TIME AS REQUIRED BY SECTION 2.4(B) FOR SIX ADDITIONAL
MONTHS FOLLOWING SUCH DATE); AND
(II)
IF ANY REGISTRATION INVOLVES AN
UNDERWRITTEN OFFERING, ALL HOLDERS REQUESTING TO PARTICIPATE IN ANY REGISTRATION
IN CONNECTION WITH AN UNDERWRITTEN OFFERING HEREUNDER MUST SELL ITS REGISTRABLE
SECURITIES ON THE BASIS PROVIDED IN ANY UNDERWRITING ARRANGEMENTS APPROVED BY
THE PERSONS ENTITLED TO