415 promulgated by the Commission pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission having substantially the
same effect as such Rule.
"Rule 424" means Rule 424 promulgated by the Commission pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission having substantially the
same effect as such Rule.
"Securities Act" means the Securities Act of 1933, as amended.
"Warrant" means the Common Stock purchase warrant issued pursuant to the
Purchase Agreement.
2.
REGISTRATION.
(A)
ON OR PRIOR TO THE FILING DATE, THE COMPANY
SHALL PREPARE AND FILE WITH THE COMMISSION A REGISTRATION STATEMENT COVERING THE
REGISTRABLE SECURITIES FOR AN OFFERING TO BE MADE ON A CONTINUOUS BASIS PURSUANT
TO RULE 415.
THE REGISTRATION STATEMENT SHALL BE ON FORM S-3 (EXCEPT IF THE
COMPANY IS NOT THEN ELIGIBLE TO REGISTER FOR RESALE THE REGISTRABLE SECURITIES
ON FORM S-3, IN WHICH CASE SUCH REGISTRATION SHALL BE ON ANOTHER APPROPRIATE
FORM IN ACCORDANCE HEREWITH).
THE COMPANY SHALL CAUSE THE REGISTRATION
STATEMENT TO BECOME EFFECTIVE AND REMAIN EFFECTIVE AS PROVIDED HEREIN.
THE
COMPANY SHALL USE ITS REASONABLE COMMERCIAL EFFORTS TO CAUSE THE REGISTRATION
STATEMENT TO BE DECLARED EFFECTIVE UNDER THE SECURITIES ACT AS PROMPTLY AS
POSSIBLE AFTER THE FILING THEREOF, BUT IN ANY EVENT NO LATER THAN THE
EFFECTIVENESS DATE, AND SHALL KEEP THE REGISTRATION STATEMENT CONTINUOUSLY
EFFECTIVE UNDER THE SECURITIES ACT UNTIL THE DATE WHICH IS THE EARLIER DATE OF
WHEN (I) ALL REGISTRABLE SECURITIES HAVE BEEN SOLD OR (II) ALL REGISTRABLE
SECURITIES MAY BE SOLD IMMEDIATELY WITHOUT REGISTRATION UNDER THE SECURITIES ACT
AND WITHOUT VOLUME RESTRICTIONS PURSUANT TO RULE 144(K), AS DETERMINED BY THE
COUNSEL TO THE COMPANY PURSUANT TO A WRITTEN OPINION LETTER TO SUCH EFFECT,
ADDRESSED AND ACCEPTABLE TO THE COMPANY'S TRANSFER AGENT AND THE AFFECTED
HOLDERS (THE "EFFECTIVENESS PERIOD").
2
(B)
IF: (I) ANY REGISTRATION STATEMENT IS NOT
FILED ON OR PRIOR TO THE FILING DATE; (II) A REGISTRATION STATEMENT FILED
HEREUNDER IS NOT DECLARED EFFECTIVE BY THE COMMISSION BY THE EFFECTIVENESS DATE;
(III) AFTER A REGISTRATION STATEMENT IS FILED WITH AND DECLARED EFFECTIVE BY THE
COMMISSION, SUCH REGISTRATION STATEMENT CEASES TO BE EFFECTIVE (BY SUSPENSION OR
OTHERWISE) AS TO ALL REGISTRABLE SECURITIES TO WHICH IT IS REQUIRED TO RELATE AT
ANY TIME PRIOR TO THE EXPIRATION OF THE EFFECTIVENESS PERIOD (WITHOUT BEING
SUCCEEDED IMMEDIATELY BY AN ADDITIONAL REGISTRATION STATEMENT FILED AND DECLARED
EFFECTIVE) FOR A PERIOD OF TIME WHICH SHALL EXCEED 30 DAYS IN THE AGGREGATE PER
YEAR OR MORE THAN 20 CONSECUTIVE CALENDAR DAYS (DEFINED AS A PERIOD OF 365 DAYS
COMMENCING ON THE DATE THE REGISTRATION STATEMENT IS DECLARED EFFECTIVE); OR
(IV) THE COMMON STOCK IS NOT LISTED OR QUOTED, OR IS SUSPENDED FROM TRADING ON
ANY TRADING MARKET, FOR A PERIOD OF THREE (3) CONSECUTIVE TRADING DAYS (PROVIDED
THE COMPANY SHALL NOT HAVE BEEN ABLE TO CURE SUCH TRADING SUSPENSION