THE
EFFECTIVENESS PERIOD, TO NOTIFY THE COMPANY, WITHIN TEN DAYS OF A WRITTEN
REQUEST BY THE COMPANY, OF THE AMOUNT OF REGISTRABLE SECURITIES SOLD PURSUANT TO
THE SHELF REGISTRATION STATEMENT AND, IN THE ABSENCE OF A RESPONSE, THE COMPANY
MAY ASSUME THAT ALL OF SUCH HOLDER'S REGISTRABLE SECURITIES HAVE BEEN SO SOLD;
PROVIDED, THAT THE COMPANY SHALL USE REASONABLE EFFORTS TO CONFIRM THAT ALL OF
SUCH HOLDER'S REGISTRABLE SECURITIES HAVE BEEN SO SOLD PRIOR TO MAKING SUCH
ASSUMPTION.
(F)
THE COMPANY REPRESENTS AND AGREES THAT, UNLESS IT OBTAINS THE PRIOR CONSENT
OF HOLDERS OF A MAJORITY OF THE REGISTRABLE SECURITIES THAT ARE REGISTERED UNDER
THE SHELF REGISTRATION STATEMENT AT SUCH TIME OR THE CONSENT OF THE MANAGING
UNDERWRITER IN CONNECTION WITH ANY UNDERWRITTEN OFFERING OF REGISTRABLE
SECURITIES, AND EACH HOLDER REPRESENTS AND AGREES THAT, UNLESS IT OBTAINS THE
PRIOR CONSENT OF THE COMPANY AND ANY SUCH UNDERWRITER, IT WILL NOT MAKE ANY
OFFER RELATING TO THE SECURITIES THAT WOULD CONSTITUTE AN "ISSUER FREE WRITING
PROSPECTUS," AS DEFINED IN RULE 433 (AN "ISSUER FREE WRITING PROSPECTUS"), OR
THAT WOULD OTHERWISE CONSTITUTE A "FREE WRITING PROSPECTUS," AS DEFINED IN
RULE 405, REQUIRED TO BE FILED WITH THE SEC.
THE COMPANY REPRESENTS THAT ANY
ISSUER FREE WRITING PROSPECTUS WILL NOT INCLUDE ANY INFORMATION THAT CONFLICTS
WITH THE INFORMATION CONTAINED IN THE SHELF REGISTRATION STATEMENT OR THE
PROSPECTUS AND, ANY ISSUER FREE WRITING PROSPECTUS, WHEN TAKEN TOGETHER WITH THE
INFORMATION IN THE SHELF REGISTRATION STATEMENT AND THE PROSPECTUS, WILL NOT
INCLUDE ANY UNTRUE STATEMENT OF A MATERIAL FACT OR OMIT TO STATE ANY MATERIAL
FACT NECESSARY IN ORDER TO MAKE THE STATEMENTS THEREIN, IN LIGHT OF THE
CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING.
The Company shall not permit any securities other than Registrable Securities to
be included in the Shelf Registration Statement.
2.2.
EXPENSES.
THE COMPANY SHALL PAY ALL
REGISTRATION EXPENSES IN CONNECTION WITH THE REGISTRATION PURSUANT TO
SECTION 2.1.
EACH HOLDER SHALL PAY ALL UNDERWRITING DISCOUNTS AND COMMISSIONS,
BROKER FEES AND COMMISSIONS AND TRANSFER TAXES, IF ANY, RELATING TO THE SALE OR
DISPOSITION OF SUCH HOLDER'S REGISTRABLE SECURITIES PURSUANT TO THE SHELF
REGISTRATION STATEMENT.
6
2.3.
EFFECTIVENESS.
(A)
THE COMPANY WILL BE DEEMED NOT TO HAVE USED COMMERCIALLY REASONABLE EFFORTS
TO CAUSE THE SHELF REGISTRATION STATEMENT TO BECOME, OR TO REMAIN, EFFECTIVE
DURING THE REQUISITE PERIOD IF THE COMPANY VOLUNTARILY TAKES ANY ACTION THAT
WOULD, OR OMITS TO TAKE ANY ACTION WHICH OMISSION WOULD, RESULT IN ANY SUCH
SHELF REGISTRATION STATEMENT NOT BEING DECLARED EFFECTIVE OR IN THE HOLDERS OF
REGISTRABLE SECURITIES COVERED THEREBY NOT BEING ABLE TO OFFER AND SELL SUCH
REGISTRABLE SECURITIES DURING THAT PERIOD AS AND TO THE EXTENT CONTEMPLATED
HEREBY, UNLESS SUCH ACTION IS REQUIRED BY APPLICABLE LAW AND EXCEPT AS
CONTEMPLATED BY 2.5.
(B)
A SHELF REGISTRATION STATEMENT PURSUANT TO SECTION 2.1 HEREOF WILL NOT BE
DEEMED TO HAVE BECOME EFFECTIVE UNLESS IT HAS BEEN DECLARED EFFECTIVE BY THE SEC
OR HAS BECOME AUTOMATICALLY EFFECTIVE UNDER THE 1933 ACT PURSUANT TO
RULE 462(E) THEREUNDER; PROVIDED,