ADDITION TO, AND NOT IN LIEU OF, THEIR RIGHT TO
REGISTRATION UNDER SECTIONS 2 AND 3 AND SHALL NOT BE COUNTED AS DEMANDS FOR
REGISTRATION OR REGISTRATIONS EFFECTED PURSUANT TO SECTIONS 2 OR 3,
RESPECTIVELY.
5
5.
LEGAL COUNSEL.
SUBJECT TO SECTION 8
HEREOF, THE REQUIRED HOLDERS SHALL HAVE THE RIGHT TO SELECT ONE LEGAL COUNSEL TO
REVIEW AND OVERSEE ANY REGISTRATION PURSUANT TO THIS SECTION 5 ("LEGAL
COUNSEL"), WHICH SHALL BE PROSKAUER ROSE LLP OR SUCH OTHER COUNSEL AS THEREAFTER
DESIGNATED BY THE REQUIRED HOLDERS.
THE COMPANY AND LEGAL COUNSEL SHALL
REASONABLY COOPERATE WITH EACH OTHER IN PERFORMING THE COMPANY'S OBLIGATIONS
UNDER THIS AGREEMENT.
6.
RELATED OBLIGATIONS.
At such time as the Company is obligated to file a Registration Statement with
the SEC pursuant to Sections 2, 3, or 4, the Company will use commercially
reasonable efforts to effect the registration of the Registrable Securities in
accordance with the intended method of disposition thereof and, pursuant
thereto, the Company shall have the following obligations:
(A)
SUBJECT TO SUB-SECTION (C) BELOW, THE
COMPANY SHALL SUBMIT TO THE SEC, WITHIN FIVE (5) BUSINESS DAYS AFTER THE COMPANY
LEARNS THAT NO REVIEW OF A PARTICULAR REGISTRATION STATEMENT WILL BE MADE BY THE
STAFF OF THE SEC OR THAT THE STAFF HAS NO FURTHER COMMENTS ON A PARTICULAR
REGISTRATION STATEMENT, AS THE CASE MAY BE, A REQUEST FOR ACCELERATION OF
EFFECTIVENESS OF SUCH REGISTRATION STATEMENT TO A TIME AND DATE NOT LATER THAN
48 HOURS AFTER THE SUBMISSION OF SUCH REQUEST.
IF THE REQUIRED HOLDERS REQUEST
A SHELF REGISTRATION STATEMENT, THE COMPANY SHALL USE COMMERCIALLY REASONABLE
EFFORTS TO KEEP SUCH REGISTRATION STATEMENT EFFECTIVE PURSUANT TO RULE 415 AT
ALL TIMES UNTIL THE EARLIER OF (I) THE DATE AS OF WHICH THE INVESTORS MAY SELL
ALL OF THE REGISTRABLE SECURITIES COVERED BY SUCH REGISTRATION STATEMENT WITHOUT
THE VOLUME LIMITATIONS PURSUANT TO RULE 144(E) (OR ANY SUCCESSOR THERETO),
(II) SUCH TIME AS THE REGISTRABLE SECURITIES HAVE BEEN SOLD PURSUANT TO SUCH
REGISTRATION STATEMENT, OR (III) TWO YEARS FROM THE EFFECTIVENESS OF THE FIRST
REGISTRATION STATEMENT FILED HEREUNDER; PROVIDED HOWEVER, THAT AFTER SUCH TWO
YEARS IF COUNSEL TO AN INVESTOR (WHICH MAY BE IN-HOUSE COUNSEL) ADVISES AN
INVESTOR IN WRITING THAT SUCH INVESTOR IS UNABLE TO FREELY SELL REGISTRABLE
SECURITIES PURSUANT TO RULE 144(K), THEN THE COMPANY SHALL MAINTAIN AN EFFECTIVE
REGISTRATION STATEMENT FOR THE CONVERSION SHARES UNTIL CLAUSE (I) OR (II) IS
SATISFIED, BUT NOT TO EXCEED A PERIOD OF UP TO AN ADDITIONAL TWO YEARS
(TOGETHER, THE "REGISTRATION PERIOD") IF SUCH INVESTOR HAS CONTINUOUSLY HELD
SUCH CONVERSION SHARES (OR THE NOTES RELATING THERETO TWO YEARS FROM THE DATE
HEREOF).
THE COMPANY SHALL TAKE COMMERCIALLY REASONABLE EFFORTS TO ENSURE THAT
EACH REGISTRATION STATEMENT (INCLUDING ANY AMENDMENTS OR SUPPLEMENTS THERETO AND
PROSPECTUSES CONTAINED THEREIN) SHALL NOT CONTAIN ANY UNTRUE STATEMENT OF A
MATERIAL FACT OR OMIT TO STATE A MATERIAL FACT REQUIRED TO BE STATED THEREIN, OR
NECESSARY TO MAKE THE STATEMENTS THEREIN (IN THE CASE OF PROSPECTUSES, IN THE
LIGHT OF THE CIRCUMSTANCES IN