CONTINUOUSLY EFFECTIVE UNDER THE SECURITIES ACT DURING ITS ENTIRE EFFECTIVENESS
PERIOD.
(C)
IF: (I) A REGISTRATION STATEMENT IS NOT FILED ON OR PRIOR TO ITS
FILING DATE (IF THE COMPANY FILES A REGISTRATION STATEMENT WITHOUT AFFORDING THE
PURCHASER THE OPPORTUNITY TO REVIEW AND COMMENT ON THE SAME AS REQUIRED BY
SECTION 3(A) HEREOF, THE COMPANY SHALL NOT BE DEEMED TO HAVE SATISFIED THIS
CLAUSE (I)), OR (II) A REGISTRATION STATEMENT IS NOT DECLARED EFFECTIVE BY THE
COMMISSION ON OR PRIOR TO ITS REQUIRED EFFECTIVENESS DATE, OR (III) AFTER ITS
EFFECTIVE DATE, WITHOUT REGARD FOR THE REASON THEREUNDER OR EFFORTS THEREFOR
OTHER THAN A SUSPENSION EVENT IN COMPLIANCE WITH SECTION 6(C), SUCH REGISTRATION
STATEMENT CEASES FOR ANY REASON TO BE EFFECTIVE AND AVAILABLE TO THE PURCHASER
AS TO ALL REGISTRABLE SECURITIES TO WHICH IT IS REQUIRED TO COVER AT ANY TIME
PRIOR TO THE EXPIRATION OF ITS EFFECTIVENESS PERIOD, FOR AN AGGREGATE OF 20
TRADING DAYS FOR ALL SUCH EVENTS (ANY SUCH FAILURE OR BREACH BEING REFERRED TO
AS AN "EVENT," AND FOR PURPOSES OF CLAUSES (I) AND (II) OR FOR PURPOSES OF
CLAUSE (III) THE DATE ON WHICH SUCH 20 TRADING DAY PERIOD IS EXCEEDED, BEING
REFERRED TO AS "EVENT DATE"), THEN, FOR SO LONG AS SUCH EVENT IS WITHIN THE
EFFECTIVENESS PERIOD, LIQUIDATED DAMAGES WILL ACCRUE BASED ON THE PURCHASE PRICE
OF THE AFFECTED REGISTRABLE SECURITIES PAID BY THE PURCHASER PURSUANT TO THE
PURCHASE AGREEMENT FROM AND INCLUDING THE EVENT DATE BUT EXCLUDING THE DATE ON
WHICH THE EVENT HAS BEEN CURED.
FOR SO LONG AS THE EVENT HAS NOT BEEN CURED,
LIQUIDATED DAMAGES WILL ACCRUE AT A RATE OF 0.50% PER ANNUM DURING THE 90-DAY
PERIOD IMMEDIATELY FOLLOWING THE OCCURRENCE OF THE EVENT DATE AND SHALL INCREASE
BY 0.50% PER ANNUM AT THE END OF EACH SUBSEQUENT 90-DAY PERIOD, BUT IN NO EVENT
SHALL SUCH RATE EXCEED 1.00% PER ANNUM.
THE LIQUIDATED DAMAGES SHALL BE DUE AND
PAYABLE IN CASH OR THROUGH THE ISSUANCE OF ADDITIONAL NOTES (AS DEFINED IN THE
NOTE), TO THE PURCHASER ON EACH MONTHLY ANNIVERSARY OF EACH SUCH EVENT DATE
THEREOF (IF THE APPLICABLE EVENT SHALL NOT HAVE BEEN CURED BY SUCH DATE) UNTIL
THE APPLICABLE EVENT IS CURED.
THE LIQUIDATED DAMAGES 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 OTHER THAN WITH RESPECT TO THE INITIAL EVENT DATE THEREOF.
FOLLOWING THE CURE OF ALL EVENTS, THE ACCRUAL OF LIQUIDATED DAMAGES SHALL
CEASE.
THE LIQUIDATED DAMAGES UNDER THIS SECTION 2(C) SHALL BE THE SOLE AND
EXCLUSIVE REMEDY OF THE PURCHASER UNDER THIS AGREEMENT FOR AN EVENT.
NOTWITHSTANDING THE FOREGOING, NO LIQUIDATED DAMAGES WILL ACCRUE HEREUNDER TO
THE PURCHASER WITH RESPECT TO THE PRIMARY SHARES OR UNDERLYING SHARES THAT ARE
NO LONGER REGISTRABLE SECURITIES.
(D)
REGISTRATION STATEMENTS UNDER THIS SECTION 2 MAY CONTAIN SHARES
OTHER THAN REGISTRABLE SECURITIES IN ACCORDANCE WITH THE REQUIREMENTS OF
PIGGY-BACK RIGHTS GRANTED UNDER
4
predecessor agreements, provided, that the number of Registrable