IN THE REGISTRATION, THE COMPANY
SHALL ADVISE ALL HOLDERS OF THE COMPANY'S SECURITIES THAT WOULD OTHERWISE BE
REGISTERED AND UNDERWRITTEN PURSUANT HERETO, AND THE NUMBER OF SHARES OF SUCH
SECURITIES, INCLUDING REGISTRABLE SECURITIES, THAT MAY BE INCLUDED IN THE
REGISTRATION SHALL BE ALLOCATED IN THE FOLLOWING MANNER, UNLESS THE UNDERWRITER
SHALL DETERMINE THAT MARKETING FACTORS REQUIRE A DIFFERENT ALLOCATION:
(I) SHARES, OTHER THAN REGISTRABLE SECURITIES, REQUESTED TO BE INCLUDED IN SUCH
REGISTRATION BY STOCKHOLDERS SHALL BE EXCLUDED UNLESS (X) THE COMPANY HAS, PRIOR
TO THE DATE HEREOF, OR AFTER THE DATE HEREOF WITH
20
THE CONSENT OF THE MAJORITY HOLDERS, GRANTED REGISTRATION RIGHTS WHICH ARE TO BE
TREATED ON AN EQUAL BASIS WITH REGISTRABLE SECURITIES FOR THE PURPOSE OF THE
EXERCISE OF THE UNDERWRITER CUTBACK (WITH IT BEING SPECIFICALLY AGREED AND
ACKNOWLEDGED THAT THE REGISTRATION RIGHTS GRANTED (1) TO SILICON VALLEY BANK
PURSUANT TO THE REGISTRATION RIGHTS AGREEMENT, DATED ON OR AROUND DECEMBER 30,
2002, BETWEEN THE COMPANY AND SILICON VALLEY BANK AND (2) TO CERTAIN HOLDERS
PURSUANT TO THE AMENDED AND RESTATED WARRANT AND REGISTRATION RIGHTS AGREEMENT,
DATED FEBRUARY 21, 2003, BY AND AMONG THE COMPANY AND THE WARRANT AGENT AS
WARRANT AGENT ARE TO BE TREATED ON AN EQUAL BASIS WITH REGISTRABLE SECURITIES
FOR THE PURPOSES OF THIS UNDERWRITING CUTBACK), WITH IT BEING SPECIFICALLY
ACKNOWLEDGED THAT THE REGISTRATION RIGHTS GRANTED TO THE HOLDERS OF ANY SUCH
SHARES OF COMMON STOCK ARE TO BE TREATED ON AN EQUAL BASIS WITH REGISTRABLE
SECURITIES FOR PURPOSES OF THIS UNDERWRITING CUTBACK; AND (II) IF FURTHER
LIMITATION ON THE NUMBER OF SHARES TO BE INCLUDED IN THE OFFERING IS REQUIRED,
THE NUMBER OF REGISTRABLE SECURITIES AND OTHER SHARES OF COMMON STOCK THAT MAY
BE INCLUDED IN SUCH REGISTRATION SHALL BE ALLOCATED AMONG HOLDERS THEREOF IN
PROPORTION, AS NEARLY AS PRACTICABLE, TO THE RESPECTIVE AMOUNTS OF COMMON STOCK
WHICH EACH STOCKHOLDER REQUESTED BE REGISTERED IN SUCH REGISTRATION.
NO
SECURITIES EXCLUDED FROM THE UNDERWRITING BY REASON OF THE UNDERWRITER'S
MARKETING LIMITATION SHALL BE INCLUDED IN SUCH REGISTRATION.
UPON DELIVERY OF A
WRITTEN REQUEST THAT REGISTRABLE SECURITIES BE INCLUDED IN AN UNDERWRITTEN
OFFERING PURSUANT TO SECTION 8.1.1 OR SECTION 8.2.1 HEREOF, THE HOLDER THEREOF
MAY NOT THEREAFTER ELECT TO WITHDRAW THEREFROM WITHOUT THE WRITTEN CONSENT THE
COMPANY AND THE MAJORITY PARTICIPATING HOLDERS.
8.3.2.
REGISTRATION PROCEDURES.
IF AND IN EACH CASE WHEN THE COMPANY IS
REQUIRED TO USE ITS REASONABLE BEST EFFORTS TO EFFECT A REGISTRATION OF ANY
REGISTRABLE SECURITIES AS PROVIDED IN SECTION 8.1 OR SECTION 8.2 HEREOF, THE
COMPANY SHALL TAKE APPROPRIATE AND CUSTOMARY ACTIONS IN FURTHERANCE THEREOF,
INCLUDING, WITHOUT LIMITATION:
(A)
PROMPTLY FILING WITH THE COMMISSION A REGISTRATION STATEMENT AND
USING BEST EFFORTS TO CAUSE SUCH REGISTRATION STATEMENT TO BECOME EFFECTIVE;
(B)
PREPARING AND FILING WITH THE COMMISSION SUCH AMENDMENTS AND
SUPPLEMENTS TO SUCH REGISTRATION STATEMENTS AS MAY BE REQUIRED TO COMPLY WITH
THE SECURITIES ACT AND TO KEEP SUCH REGISTRATION STATEMENT EFFECTIVE FOR A
PERIOD NOT TO EXCEED 270 DAYS FROM THE DATE OF EFFECTIVENESS OR SUCH EARLIER
TIME AS THE REGISTRABLE