INVESTOR HAS ENTERED INTO A CONTRACT FOR SALE PRIOR TO
RECEIPT OF SUCH NOTICE AND FOR WHICH ANY SUCH INVESTOR HAS NOT YET SETTLED.
(D)
NO INVESTOR MAY PARTICIPATE IN ANY
UNDERWRITTEN DISTRIBUTION HEREUNDER UNLESS SUCH INVESTOR (I) AGREES TO SELL SUCH
INVESTOR'S REGISTRABLE SECURITIES ON THE BASIS PROVIDED IN ANY UNDERWRITING
ARRANGEMENTS IN USUAL AND CUSTOMARY FORM ENTERED INTO BY THE COMPANY, (II)
COMPLETES AND EXECUTES ALL QUESTIONNAIRES, POWERS OF ATTORNEY, INDEMNITIES,
UNDERWRITING AGREEMENTS AND OTHER DOCUMENTS REASONABLY REQUIRED UNDER THE TERMS
OF SUCH UNDERWRITING
9
ARRANGEMENTS, (III) AGREES TO PAY ITS PRO RATA SHARE OF ALL UNDERWRITING
DISCOUNTS AND COMMISSIONS AND ANY EXPENSES IN EXCESS OF THOSE PAYABLE BY THE
COMPANY PURSUANT TO SECTION 6 BELOW, AND (IV) COMPLIES WITH ALL APPLICABLE LAWS
IN CONNECTION THEREWITH.
NOTWITHSTANDING ANYTHING IN THIS SECTION 4(D) TO THE
CONTRARY, THIS SECTION 4(D) IS NOT INTENDED TO LIMIT ANY INVESTOR'S RIGHTS UNDER
SECTIONS 2(A) OR 3(B) HEREOF.
5.
DELAY PERIODS; SUSPENSION OF SALES.
(A)
DELAY PERIOD.
IF, AT ANY TIME PRIOR TO THE
EXPIRATION OF THE REGISTRATION PERIOD, THE COMPANY'S BOARD OF DIRECTORS
DETERMINES, IN ITS REASONABLE GOOD FAITH JUDGMENT, THAT THE DISPOSITION OF
REGISTRABLE SECURITIES WOULD REQUIRE THE PREMATURE DISCLOSURE OF MATERIAL
NON-PUBLIC INFORMATION WHICH MAY REASONABLY BE EXPECTED TO HAVE AN ADVERSE
EFFECT ON THE COMPANY, THEN THE COMPANY SHALL NOT BE REQUIRED TO MAINTAIN THE
EFFECTIVENESS OF OR AMEND OR SUPPLEMENT THE REGISTRATION STATEMENT FOR A PERIOD
(A "DISCLOSURE DELAY PERIOD") EXPIRING UPON THE EARLIER TO OCCUR OF (I) THE DATE
ON WHICH SUCH MATERIAL INFORMATION IS DISCLOSED TO THE PUBLIC OR CEASES TO BE
MATERIAL OR (II) SUBJECT TO SECTION 5(B) HEREOF, UP TO 20 TRADING DAYS AFTER THE
DATE ON WHICH THE COMPANY PROVIDES A NOTICE TO THE INVESTORS UNDER SECTION 3(E)
HEREOF STATING THAT THE FAILURE TO DISCLOSE SUCH NON-PUBLIC INFORMATION CAUSES
THE PROSPECTUS INCLUDED IN THE REGISTRATION STATEMENT, AS THEN IN EFFECT, TO
INCLUDE AN UNTRUE STATEMENT OF A MATERIAL FACT OR TO OMIT TO STATE A MATERIAL
FACT REQUIRED TO BE STATED THEREIN OR NECESSARY TO MAKE THE STATEMENTS THEREIN
NOT MISLEADING (EACH, A "DISCLOSURE DELAY PERIOD NOTICE").
FOR THE AVOIDANCE OF
DOUBT, IN NO EVENT SHALL A DISCLOSURE DELAY PERIOD EXCEED 20 TRADING DAYS.
(B)
THE COMPANY SHALL GIVE PROMPT WRITTEN
NOTICE, IN THE MANNER PRESCRIBED BY SECTION 12 HEREOF, TO THE INVESTORS OF EACH
DISCLOSURE DELAY PERIOD, WHICH NOTICE SHALL, IF PRACTICABLE, ESTIMATE THE
DURATION OF SUCH DISCLOSURE DELAY PERIOD.
EACH INVESTOR SHALL, UPON RECEIPT OF
A DISCLOSURE DELAY PERIOD NOTICE PRIOR TO SUCH INVESTOR'S DISPOSITION OF ALL OF
ITS REGISTRABLE SECURITIES, FORTHWITH DISCONTINUE THE DISPOSITION OF SUCH
REGISTRABLE SECURITIES PURSUANT TO THE REGISTRATION STATEMENT, AND WILL NOT
DELIVER ANY PROSPECTUS FORMING A PART THEREOF IN CONNECTION WITH ANY SALE OF
SUCH REGISTRABLE SECURITIES UNTIL THE EXPIRATION OF SUCH DISCLOSURE DELAY
PERIOD.
IN ADDITION, THE PROVISIONS OF SECTION 2(B) HEREOF SHALL NOT APPLY TO
THE DISCLOSURE DELAY PERIODS.
NOTWITHSTANDING ANYTHING IN THIS SECTION 5 TO THE
CONTRARY, THE COMPANY SHALL NOT DELIVER