NOT BE LIABLE FOR LIQUIDATED DAMAGES UNDER THIS SECTION IN
RESPECT OF THE WARRANTS. IN NO EVENT WILL THE COMPANY BE LIABLE FOR DAMAGES IN
EXCESS OF 1.0% OF THE AGGREGATE INVESTMENT AMOUNT OF THE HOLDERS IN ANY 30-DAY
PERIOD AND THE MAXIMUM AGGREGATE LIQUIDATED DAMAGES PAYABLE TO A HOLDER UNDER
THIS SECTION 2(D) SHALL NOT EXCEED TEN PERCENT (10%) OF THE AGGREGATE INVESTMENT
AMOUNT PAID BY SUCH HOLDER PURSUANT TO THE PURCHASE AGREEMENT. THE PARTIAL
LIQUIDATED DAMAGES PURSUANT TO THE TERMS HEREOF SHALL APPLY ON A DAILY PRO-RATA
BASIS FOR ANY PORTION OF A MONTH PRIOR TO THE CURE OF AN EVENT, EXCEPT IN THE
CASE OF THE FIRST EVENT DATE.
(E)
EACH HOLDER AGREES TO FURNISH TO THE COMPANY A COMPLETED
QUESTIONNAIRE IN THE FORM ATTACHED TO THIS AGREEMENT AS ANNEX B (A "SELLING
HOLDER QUESTIONNAIRE"). THE COMPANY SHALL NOT BE REQUIRED TO INCLUDE THE
REGISTRABLE SECURITIES OF A HOLDER IN A REGISTRATION STATEMENT AND SHALL NOT BE
REQUIRED TO PAY ANY LIQUIDATED OR OTHER DAMAGES UNDER SECTION 2(D) TO ANY HOLDER
WHO FAILS TO FURNISH TO THE COMPANY A FULLY COMPLETED SELLING HOLDER
QUESTIONNAIRE
5
AT LEAST FIVE TRADING DAYS PRIOR TO THE FILING DATE (SUBJECT TO THE REQUIREMENTS
SET FORTH IN SECTION 3(A)).
(F)
SUBJECT TO SECTION 5 HEREOF, THE REQUIRED HOLDERS SHALL HAVE THE
RIGHT TO SELECT ONE LEGAL COUNSEL TO REVIEW AND OVERSEE ANY REGISTRATION
PURSUANT TO THIS SECTION 2 ("LEGAL COUNSEL"), WHICH SHALL BE SCHULTE ROTH &
ZABEL 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.
3.
REGISTRATION PROCEDURES.
In connection with the Company's registration obligations hereunder, the Company
shall:
(A)
NOT LESS THAN FOUR TRADING DAYS PRIOR TO THE FILING OF A
REGISTRATION STATEMENT OR ANY RELATED PROSPECTUS OR ANY AMENDMENT OR SUPPLEMENT
THERETO, THE COMPANY SHALL FURNISH TO EACH HOLDER AND LEGAL COUNSEL COPIES OF
THE "SELLING STOCKHOLDERS" SECTION OF SUCH DOCUMENT, THE "PLAN OF DISTRIBUTION"
AND ANY RISK FACTOR CONTAINED IN SUCH DOCUMENT THAT ADDRESSES SPECIFICALLY THIS
TRANSACTION OR THE SELLING STOCKHOLDERS, AS PROPOSED TO BE FILED WHICH DOCUMENTS
WILL BE SUBJECT TO THE REVIEW OF SUCH HOLDER AND LEGAL COUNSEL
THE COMPANY
SHALL NOT FILE A REGISTRATION STATEMENT, ANY PROSPECTUS OR ANY AMENDMENTS OR
SUPPLEMENTS THERETO IN WHICH THE "SELLING STOCKHOLDER" SECTION THEREOF DIFFERS
IN ANY MATERIAL RESPECT FROM THE DISCLOSURE RECEIVED FROM A HOLDER IN ITS
SELLING HOLDER QUESTIONNAIRE (AS AMENDED OR SUPPLEMENTED).
(B)
(I)
PREPARE AND FILE WITH THE COMMISSION SUCH AMENDMENTS,
INCLUDING POST-EFFECTIVE AMENDMENTS, TO EACH REGISTRATION STATEMENT AND THE
PROSPECTUS USED IN CONNECTION THEREWITH AS MAY BE NECESSARY TO KEEP SUCH
REGISTRATION STATEMENT CONTINUOUSLY EFFECTIVE AS TO THE APPLICABLE REGISTRABLE
SECURITIES FOR ITS EFFECTIVENESS PERIOD AND PREPARE AND FILE WITH THE COMMISSION
SUCH ADDITIONAL REGISTRATION STATEMENTS IN ORDER TO REGISTER FOR RESALE UNDER
THE SECURITIES ACT ALL OF THE REGISTRABLE SECURITIES; (II) CAUSE THE RELATED
PROSPECTUS TO BE AMENDED OR SUPPLEMENTED