AND EXCEPT IF OTHERWISE REQUIRED PURSUANT TO COMMENTS RECEIVED
FROM THE SEC UPON A REVIEW OF SUCH REGISTRATION STATEMENT OR PURSUANT TO
JUDICIAL AND SEC INTERPRETATIONS) SUBSTANTIALLY THE "PLAN OF DISTRIBUTION"
ATTACHED HERETO AS ANNEX A. THE COMPANY SHALL USE ITS COMMERCIALLY REASONABLE
EFFORTS TO CAUSE THE REGISTRATION STATEMENT TO BE DECLARED EFFECTIVE UNDER THE
SECURITIES ACT AS SOON AS REASONABLY POSSIBLE BUT, IN ANY EVENT, NO LATER THAN
THE APPLICABLE EFFECTIVENESS DATE, AND SHALL USE ITS COMMERCIALLY REASONABLE
EFFORTS TO KEEP THE REGISTRATION STATEMENT EFFECTIVE UNDER THE SECURITIES ACT
DURING THE BALANCE OF THE APPLICABLE REGISTRATION PERIOD.
(B)
SUBJECT TO THE LAST SENTENCE OF THIS SECTION 2(B), IF: (I) A
REGISTRATION STATEMENT UNDER SUBSECTION (A) ABOVE IS NOT FILED ON OR PRIOR TO
ITS FILING DATE, OR (II) A REGISTRATION STATEMENT UNDER SUBSECTION (A) ABOVE IS
NOT DECLARED EFFECTIVE BY THE SEC ON OR PRIOR TO ITS REQUIRED EFFECTIVENESS
DATE, (III) AFTER ITS EFFECTIVE DATE, SUCH REGISTRATION STATEMENT UNDER
SUBSECTION (A) ABOVE CEASES FOR ANY REASON TO BE EFFECTIVE AND AVAILABLE TO THE
HOLDERS AS TO ALL REGISTRABLE SECURITIES TO WHICH IT IS REQUIRED TO COVER AT ANY
TIME PRIOR TO THE EXPIRATION OF THE REGISTRATION PERIOD FOR MORE THAN AN
AGGREGATE OF THIRTY (30) TRADING DAYS DURING ANY 12-MONTH PERIOD (WHICH NEED NOT
BE CONSECUTIVE), OR (IV) BEGINNING ON THE DATE ON WHICH THE FIRST REGISTRATION
STATEMENT REQUIRED BY THIS AGREEMENT IS DECLARED EFFECTIVE BY THE SEC, THERE ARE
EXCLUDED SECURITIES (AS DEFINED IN SECTION 2(C) BELOW) NOT INCLUDED FOR RESALE
IN A REGISTRATION STATEMENT (ANY SUCH FAILURE OR BREACH BEING REFERRED TO AS AN
"EVENT," AND FOR PURPOSES OF CLAUSES (I) OR (II) THE DATE ON WHICH SUCH EVENT
OCCURS, OR FOR PURPOSES OF CLAUSE (III) THE DATE WHICH SUCH THIRTY (30) TRADING
DAY-PERIOD IS EXCEEDED, BEING REFERRED TO AS AN "EVENT DATE"), THEN, IN ADDITION
TO ANY OTHER RIGHTS AVAILABLE TO THE HOLDERS UNDER THIS AGREEMENT OR UNDER
APPLICABLE LAW: ON THE LAST DAY OF EACH 30-DAY PERIOD AFTER EACH SUCH EVENT DATE
(IF THE APPLICABLE EVENT SHALL NOT HAVE BEEN CURED BY SUCH DATE) UNTIL THE
APPLICABLE EVENT IS CURED, THE COMPANY SHALL PAY TO EACH HOLDER AN AMOUNT IN
CASH, AS LIQUIDATED DAMAGES AND NOT AS A PENALTY, EQUAL TO 1.0% OF THE
THEN-OUTSTANDING PRINCIPAL AMOUNT OF THE NOTES PURCHASED BY SUCH
4
HOLDER PURSUANT TO THE PURCHASE AGREEMENT (THE "NOTE AMOUNT"). NOTWITHSTANDING
ANYTHING TO THE CONTRARY IN THIS SECTION 2(B), THE PARTIES AGREE THAT (A) THE
COMPANY WILL NOT BE LIABLE FOR LIQUIDATED DAMAGES UNDER THIS AGREEMENT WITH
RESPECT TO ANY WARRANTS OR WARRANT SHARES, (B) IN NO EVENT WILL THE COMPANY BE
LIABLE FOR LIQUIDATED DAMAGES UNDER THIS AGREEMENT IN EXCESS OF 1.0% OF THE
AGGREGATE NOTE AMOUNT OF THE HOLDERS FOR ANY 30-DAY PERIOD (EVEN IF THERE ARE
MULTIPLE EVENTS DURING THE SAME 30-DAY PERIOD), (C) THE MAXIMUM AGGREGATE
LIQUIDATED DAMAGES PAYABLE TO A HOLDER UNDER THIS AGREEMENT SHALL BE EIGHTEEN
PERCENT (18%) OF THE AGGREGATE ORIGINAL NOTE AMOUNT OF