OF COMMON STOCK REQUESTED TO BE INCLUDED THEREIN BY SUCH HOLDERS OR AS SUCH
HOLDERS MAY OTHERWISE AGREE, AND (III) THIRD, THE NUMBER OF SHARES OF COMMON
STOCK THAT THE COMPANY PROPOSES TO SELL.
(D)
SELECTION OF UNDERWRITERS.
IF ANY PIGGYBACK REGISTRATION IS
INITIATED AS A PRIMARY UNDERWRITTEN OFFERING, THE COMPANY SHALL HAVE THE RIGHT
TO SELECT THE MANAGING UNDERWRITER OR UNDERWRITERS TO ADMINISTER ANY SUCH
OFFERING.
(E)
OTHER REGISTRATION RIGHTS.
THE COMPANY SHALL NOT GRANT TO ANY
PERSON THE RIGHT TO REQUEST THE COMPANY (I) TO REGISTER ANY SHARES OF COMMON
STOCK IN A PIGGYBACK REGISTRATION UNLESS SUCH RIGHTS ARE CONSISTENT WITH THE
PROVISIONS HEREOF, OR (II) TO REGISTER ANY SECURITIES OF THE COMPANY (OTHER THAN
SHARES OF COMMON STOCK) IN A PIGGYBACK REGISTRATION.
6
4.
S-3 REGISTRATIONS.
(A)
RIGHT TO REQUEST REGISTRATION.
AT ANY TIME THAT THE COMPANY IS
ELIGIBLE TO USE FORM S-3 OR ANY SUCCESSOR THERETO, THE HOLDER SHALL BE ENTITLED
TO REQUEST THAT THE COMPANY FILE A REGISTRATION STATEMENT ON FORM S-3 OR ANY
SUCCESSOR THERETO FOR A PUBLIC OFFERING OF ALL OR ANY PORTION OF THE REGISTRABLE
COMMON STOCK PURSUANT TO RULE 415 PROMULGATED UNDER THE SECURITIES ACT OR
OTHERWISE. UPON SUCH REQUEST, THE COMPANY SHALL USE ITS REASONABLE BEST EFFORTS
(I) TO FILE A REGISTRATION STATEMENT COVERING THE NUMBER OF SHARES OF
REGISTRABLE COMMON STOCK SPECIFIED IN SUCH REQUEST UNDER THE SECURITIES ACT ON
FORM S-3 OR ANY SUCCESSOR THERETO (AN "S-3 REGISTRATION") FOR PUBLIC SALE IN
ACCORDANCE WITH THE METHOD OF DISPOSITION SPECIFIED IN SUCH REQUEST WITHIN 30
DAYS OF THE HOLDER'S REQUEST THEREFOR AND (II) TO CAUSE SUCH S-3 REGISTRATION TO
BE DECLARED EFFECTIVE BY THE SEC AS SOON AS REASONABLY PRACTICABLE THEREAFTER.
THE HOLDER SHALL BE ENTITLED, UPON NOT LESS THAN 24 HOURS (GIVEN ON A BUSINESS
DAY AND EFFECT AT THE SAME TIME ON THE NEXT BUSINESS DAY) PRIOR WRITTEN NOTICE
TO THE COMPANY IN THE MANNER PROVIDED BELOW, TO SELL SUCH REGISTRABLE COMMON
STOCK AS ARE THEN REGISTERED PURSUANT TO SUCH REGISTRATION STATEMENT (EACH, A
"SHELF TAKEDOWN").
THE HOLDER SHALL BE ENTITLED TO REQUEST THAT ONE SUCH SHELF
TAKEDOWN SHALL BE AN UNDERWRITTEN OFFERING; PROVIDED, THAT (BASED ON THEN
CURRENT MARKET PRICES) THE NUMBER OF SHARES OF REGISTRABLE COMMON STOCK INCLUDED
IN SUCH SHELF TAKEDOWN WOULD YIELD GROSS PROCEEDS TO THE HOLDER OF AT LEAST
$25,000,000. THE HOLDER SHALL ALSO GIVE THE COMPANY PROMPT WRITTEN NOTICE OF THE
CONSUMMATION OF SUCH SHELF TAKEDOWN.
A NOTICE OF A PROPOSED SHELF TAKEDOWN
PURSUANT TO THIS SECTION SHALL BE GIVEN BY E-MAIL AND FACSIMILE TRANSMISSION TO
THE COMPANY'S CHIEF FINANCIAL OFFICER, WITH A COPY TO DESIGNATED COUNSEL, AS
PROVIDED IN SECTION 11(A) HEREOF, AND SHALL BE EFFECTIVE WHEN RECEIPT OF SUCH
NOTICE HAS BEEN CONFIRMED TELEPHONICALLY.
THE COMPANY AGREES TO WAIVE SUCH
24-HOUR NOTICE PERIOD IF AT THE TIME SUCH NOTICE IS EFFECTIVE, THE PROSPECTUS
INCLUDED IN THE REGISTRATION STATEMENT RELATED TO THE REGISTRABLE COMMON STOCK
PROPOSED TO BE SOLD IN THE SHELF TAKEDOWN DOES NOT CONTAIN AN UNTRUE STATEMENT