registration statement on Form S-3 covering the number of Warrant Shares covered
by the Second Registration Statement, as soon as practicable (but in no event
more than thirty (30) days) following the date on which it becomes eligible to
use Form S-3 for the resale of the Warrant Shares by the Investor.
(B)
THE COMPANY SHALL USE ITS REASONABLE BEST EFFORTS TO CAUSE THE
SECOND REGISTRATION STATEMENT TO BECOME EFFECTIVE AS PROMPTLY AS PRACTICABLE
AFTER FILING, SUCH EFFORTS TO INCLUDE, WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, RESPONDING PROMPTLY TO ANY AND ALL COMMENTS MADE BY THE STAFF OF THE
COMMISSION WITH RESPECT TO THE REGISTRATION STATEMENT, AND SUBMITTING TO THE
COMMISSION, WITHIN TWO (2) BUSINESS DAYS AFTER THE COMPANY LEARNS THAT NO REVIEW
OF THE REGISTRATION STATEMENT WILL BE MADE BY THE STAFF OF THE COMMISSION OR
THAT THE STAFF OF THE COMMISSION HAS NO FURTHER COMMENTS ON THE REGISTRATION
STATEMENT, AS THE CASE MAY BE, A REQUEST FOR ACCELERATION OF THE EFFECTIVENESS
OF SUCH REGISTRATION STATEMENT TO A TIME AND DATE NOT LATER THAN TWO (2)
BUSINESS DAYS AFTER THE SUBMISSION OF SUCH REQUEST.
NOTWITHSTANDING THE
FOREGOING, IN THE EVENT THE SECOND REGISTRATION STATEMENT IS NOT EFFECTIVE
WITHIN NINETY (90) DAYS OF THE REGISTRATION TRIGGER DATE (IF THERE IS NO REVIEW
OF THE SECOND REGISTRATION STATEMENT BY THE COMMISSION) OR ONE HUNDRED AND
TWENTY (120) DAYS (IF THERE IS A REVIEW OF THE SECOND REGISTRATION STATEMENT BY
THE COMMISSION), THE COMPANY SHALL PAY A PENALTY TO THE HOLDERS EQUAL TO 1.5%
OF THE VALUE OF THE WARRANT SHARES (THE "PENALTY") AT THE TIME OF SUCH FAILURE
OF THE SECOND REGISTRATION STATEMENT TO BE EFFECTIVE (THE "EFFECTIVENESS
FAILURE").
THE PENALTY SHALL BE PAYABLE TO THE HOLDERS AT THE TIME OF THE
EFFECTIVENESS FAILURE AND EVERY 30 DAYS FOLLOWING SUCH EFFECTIVENESS FAILURE
UNTIL THE SECOND REGISTRATION STATEMENT IS DECLARED EFFECTIVE BY THE
COMMISSION.
THE VALUE OF THE WARRANT SHARES SHALL BE DETERMINED BY TAKING THE
VOLUME WEIGHTED AVERAGE PRICE PER SHARE FOR THE FIVE DAYS PRIOR TO AND INCLUDING
THE DATE OF THE EFFECTIVENESS FAILURE. THE COMPANY WILL MAINTAIN THE
EFFECTIVENESS OF THE SECOND REGISTRATION STATEMENT FILED PURSUANT TO THIS
AGREEMENT UNTIL THE EARLIEST TO OCCUR OF (I) THE DATE ON WHICH ALL OF THE
REGISTRABLE SECURITIES ELIGIBLE FOR RESALE THEREUNDER HAVE BEEN PUBLICLY SOLD
PURSUANT TO EITHER THE SECOND REGISTRATION STATEMENT OR RULE 144 UNDER THE
SECURITIES ACT ("RULE 144"), (II) THE DATE ON WHICH ALL OF THE WARRANT SHARES
REMAINING TO BE SOLD UNDER THE SECOND REGISTRATION STATEMENT (IN THE REASONABLE
OPINION OF COUNSEL TO THE COMPANY) MAY BE IMMEDIATELY SOLD TO THE PUBLIC UNDER
PARAGRAPH (K) OF RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION
AND (III) THE DATE THAT IS THE SECOND (2ND) ANNIVERSARY OF THE CLOSING DATE (THE
PERIOD BEGINNING ON THE CLOSING DATE AND ENDING ON THE EARLIEST TO OCCUR OF (I),
(II) OR (III) ABOVE BEING REFERRED TO HEREIN AS THE "REGISTRATION PERIOD").
(C)
THE COMPANY SHALL USE ITS COMMERCIALLY REASONABLE