FIRST ANNIVERSARY OF THE INITIAL
CLOSING.
SUCH DEADLINE IS REFERRED TO HEREIN AS THE "FILING DEADLINE".
IN THE EVENT THAT
FORM S-3 IS UNAVAILABLE FOR SUCH A REGISTRATION, THE COMPANY SHALL USE SUCH
OTHER FORM AS IS AVAILABLE FOR SUCH A REGISTRATION, SUBJECT TO THE PROVISIONS OF
SECTION 2(C).
THE REGISTRATION STATEMENT PREPARED PURSUANT HERETO SHALL
REGISTER FOR RESALE AT LEAST THAT NUMBER OF SHARES OF COMMON STOCK EQUAL TO THE
AGGREGATE NUMBER OF REGISTRABLE SECURITIES ISSUED AND OUTSTANDING OR DEEMED
ISSUED AND OUTSTANDING ON AN AS-CONVERTED BASIS AS OF THE TRADING DAY
IMMEDIATELY PRECEDING THE DATE THE REGISTRATION STATEMENT IS INITIALLY FILED
WITH THE SEC, SUBJECT TO ADJUSTMENT AS PROVIDED IN SECTION 2(D).
THE COMPANY
SHALL USE ITS BEST EFFORTS TO HAVE THE REGISTRATION STATEMENT DECLARED EFFECTIVE
BY THE SEC NO LATER THAN THE FIRST ANNIVERSARY OF THE INITIAL CLOSING (THE
"EFFECTIVENESS DEADLINE").
3
(B)
LEGAL COUNSEL.
SUBJECT TO SECTION 5 HEREOF, THE INVESTORS HOLDING
A MAJORITY OF THE REGISTRABLE SECURITIES (ON AN AS CONVERTED BASIS, THE
"INVESTOR MAJORITY") SHALL HAVE THE RIGHT TO SELECT ONE LEGAL COUNSEL TO REVIEW
AND OVERSEE ANY OFFERING PURSUANT TO THIS SECTION 2 ("LEGAL COUNSEL"), WHICH
SHALL BE FINN DIXON & HERLING LLP OR SUCH OTHER COUNSEL AS THEREAFTER DESIGNATED
BY AN INVESTOR MAJORITY.
THE COMPANY SHALL REASONABLY COOPERATE WITH LEGAL
COUNSEL IN PERFORMING THE COMPANY'S OBLIGATIONS UNDER THIS AGREEMENT.
(C)
INELIGIBILITY FOR FORM S-3.
IN THE EVENT THAT FORM S-3 IS NOT
AVAILABLE FOR THE REGISTRATION OF THE RESALE OF REGISTRABLE SECURITIES
HEREUNDER, THE COMPANY SHALL (I) REGISTER THE RESALE OF THE REGISTRABLE
SECURITIES ON ANOTHER APPROPRIATE FORM REASONABLY ACCEPTABLE TO AN INVESTOR
MAJORITY AND (II) UNDERTAKE TO REGISTER THE REGISTRABLE SECURITIES ON FORM S-3
AS SOON AS SUCH FORM IS AVAILABLE, PROVIDED THAT THE COMPANY SHALL MAINTAIN THE
EFFECTIVENESS OF THE REGISTRATION STATEMENT THEN IN EFFECT UNTIL SUCH TIME AS A
REGISTRATION STATEMENT ON FORM S-3 COVERING THE REGISTRABLE SECURITIES HAS BEEN
DECLARED EFFECTIVE BY THE SEC.
(D)
SUFFICIENT NUMBER OF SHARES REGISTERED.
IN THE EVENT THAT THE
NUMBER OF SHARES AVAILABLE UNDER THE REGISTRATION STATEMENT FILED PURSUANT TO
SECTION 2(A) IS, OR BECOMES, INSUFFICIENT TO COVER ALL OF THE REGISTRABLE
SECURITIES REQUIRED TO BE COVERED BY THE REGISTRATION STATEMENT, THE COMPANY
SHALL AMEND THE REGISTRATION STATEMENT, OR FILE A NEW REGISTRATION STATEMENT (ON
THE SHORT FORM AVAILABLE THEREFOR, IF APPLICABLE), OR BOTH, SO AS TO COVER AT
LEAST 100% OF THE AGGREGATE NUMBER OF THE REGISTRABLE SECURITIES REQUIRED TO BE
REGISTERED HEREUNDER AS OF THE TRADING DAY IMMEDIATELY PRECEDING THE DATE OF THE
FILING OF SUCH AMENDMENT OR NEW REGISTRATION STATEMENT, IN EACH CASE, AS SOON AS
PRACTICABLE, BUT IN ANY EVENT NOT LATER THAN FIFTEEN (15) DAYS AFTER THE
NECESSITY THEREFOR ARISES.
THE COMPANY SHALL USE IT BEST EFFORTS TO CAUSE SUCH
AMENDMENT AND/OR NEW REGISTRATION STATEMENT TO BECOME EFFECTIVE AS SOON AS
PRACTICABLE FOLLOWING THE FILING THEREOF.
FOR ALL PURPOSES OF THIS AGREEMENT,
SUCH ADDITIONAL REGISTRATION STATEMENT SHALL BE DEEMED TO BE THE REGISTRATION
STATEMENT REQUIRED TO