TO THE
SATISFACTION OR WAIVER BY THE COMPANY, AT OR BEFORE THE CLOSING, OF EACH OF THE
FOLLOWING CONDITIONS:
(A)
REPRESENTATIONS AND WARRANTIES.
THE REPRESENTATIONS AND
WARRANTIES OF THE PURCHASERS CONTAINED HEREIN SHALL BE TRUE AND CORRECT IN ALL
MATERIAL RESPECTS AS OF THE DATE WHEN MADE AND AS OF THE CLOSING DATE AS THOUGH
MADE ON AND AS OF SUCH DATE; AND
(B)
PERFORMANCE.
THE PURCHASERS SHALL HAVE PERFORMED, SATISFIED AND
COMPLIED IN ALL MATERIAL RESPECTS WITH ALL COVENANTS, AGREEMENTS AND CONDITIONS
REQUIRED BY THE TRANSACTION DOCUMENTS TO BE PERFORMED, SATISFIED OR COMPLIED
WITH BY THE PURCHASERS AT OR PRIOR TO THE CLOSING.
19
ARTICLE VI
REGISTRATION RIGHTS
6.1
SHELF REGISTRATION
(A)
AS PROMPTLY AS POSSIBLE, AND IN ANY EVENT ON OR PRIOR TO THE
FILING DATE, THE COMPANY SHALL PREPARE AND FILE WITH THE COMMISSION A "SHELF"
REGISTRATION STATEMENT COVERING THE RESALE OF ALL 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 AS THE PURCHASERS MAY CONSENT) AND SHALL CONTAIN (EXCEPT IF OTHERWISE
DIRECTED BY THE PURCHASERS) THE "PLAN OF DISTRIBUTION" ATTACHED HERETO AS
EXHIBIT B.
(B)
THE COMPANY SHALL USE ITS BEST EFFORTS TO CAUSE THE REGISTRATION
STATEMENT TO BE DECLARED EFFECTIVE BY THE COMMISSION AS PROMPTLY AS POSSIBLE
AFTER THE FILING THEREOF, BUT IN ANY EVENT PRIOR TO THE REQUIRED EFFECTIVENESS
DATE, AND SHALL USE ITS BEST EFFORTS TO KEEP THE REGISTRATION STATEMENT
CONTINUOUSLY EFFECTIVE UNDER THE SECURITIES ACT UNTIL THE FIFTH ANNIVERSARY OF
THE EFFECTIVE DATE OR SUCH EARLIER DATE WHEN ALL REGISTRABLE SECURITIES COVERED
BY SUCH REGISTRATION STATEMENT HAVE BEEN SOLD PUBLICLY (THE "EFFECTIVENESS
PERIOD").
(C)
THE COMPANY SHALL NOTIFY EACH PURCHASER IN WRITING PROMPTLY (AND
IN ANY EVENT WITHIN ONE (1) BUSINESS DAY) AFTER RECEIVING NOTIFICATION FROM THE
COMMISSION THAT THE REGISTRATION STATEMENT HAS BEEN DECLARED EFFECTIVE.
(D)
UPON THE OCCURRENCE OF ANY EVENT (AS DEFINED BELOW) AND ON EVERY
MONTHLY ANNIVERSARY THEREOF UNTIL THE APPLICABLE EVENT IS CURED, AS PARTIAL
RELIEF FOR THE DAMAGES SUFFERED THEREFROM BY THE PURCHASERS (WHICH REMEDY SHALL
NOT BE EXCLUSIVE OF ANY OTHER REMEDIES AVAILABLE UNDER THIS AGREEMENT, AT LAW OR
IN EQUITY), THE COMPANY SHALL PAY TO EACH PURCHASER AN AMOUNT IN CASH, AS
LIQUIDATED DAMAGES AND NOT AS A PENALTY, EQUAL TO 1% OF THE AGGREGATE PURCHASE
PRICE PAID BY SUCH PURCHASER HEREUNDER FOR THE FIRST MONTH AND 1% FOR EACH MONTH
THEREAFTER, PRORATED FOR ANY PARTIAL MONTH.
THE PAYMENTS TO WHICH A PURCHASER
SHALL BE ENTITLED PURSUANT TO THIS SECTION 6.1(D) ARE REFERRED TO HEREIN AS
"EVENT PAYMENTS".
ANY EVENT PAYMENTS PAYABLE PURSUANT TO THE TERMS HEREOF SHALL
APPLY ON A PRO-RATA BASIS FOR ANY PORTION OF A MONTH PRIOR TO THE CURE OF AN
EVENT.
IN THE EVENT THE COMPANY FAILS TO MAKE EVENT