USE ITS BEST EFFORTS TO KEEP THE
REGISTRATION STATEMENT CONTINUOUSLY EFFECTIVE UNDER THE SECURITIES ACT UNTIL THE
FIFTH ANNIVERSARY OF THE EFFECTIVE DATE OR A DATE THAT IS FIVE YEARS AFTER THE
DATE
22
SUCH REGISTRATION STATEMENT IS DECLARED EFFECTIVE BY THE COMMISSION OR THE
EARLIER OF (X) THE DATE WHEN ALL REGISTRABLE SECURITIES COVERED BY SUCH
REGISTRATION STATEMENT HAVE BEEN SOLD OR (Y) THE DATE ON WHICH THE REGISTERED
SECURITIES MAY BE SOLD WITHOUT RESTRICTION PURSUANT TO RULE 144(K) AS DETERMINED
BY COUNSEL TO THE COMPANY PURSUANT TO A WRITTEN OPINION LETTER ADDRESSED TO THE
TRANSFER AGENT TO SUCH EFFECT (THE "EFFECTIVENESS PERIOD").
(C)
THE COMPANY SHALL NOTIFY EACH PURCHASER AND THE SPECIAL COUNSEL IN
WRITING PROMPTLY (AND IN ANY EVENT WITHIN ONE TRADING 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 PURCHASER'S PRO RATA
SHARE OF THE PURCHASE PRICE PAID BY ALL PURCHASERS FOR SHARES AND WARRANTS
PURCHASED PURSUANT TO THIS AGREEMENT FOR THE FIRST MONTH AND 1.5% FOR EACH MONTH
THEREAFTER UNTIL THE APPLICABLE EVENT HAS BEEN CURED OR UNTIL THERE ARE NO
LONGER ANY REGISTRABLE SECURITIES ISSUED OR OUTSTANDING (WHICHEVER IS EARLIER).
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 PAYMENTS IN A TIMELY MANNER, SUCH EVENT PAYMENTS SHALL BEAR INTEREST AT
THE RATE OF 1.5% PER MONTH (PRORATED FOR PARTIAL MONTHS) UNTIL PAID IN FULL.
FOR SUCH PURPOSES, EACH OF THE FOLLOWING SHALL CONSTITUTE AN "EVENT":
(I)
THE REGISTRATION STATEMENT IS NOT FILED ON OR PRIOR TO THE FILING
DATE OR IS NOT DECLARED EFFECTIVE ON OR PRIOR TO THE REQUIRED EFFECTIVENESS
DATE;
(II)
AFTER THE EFFECTIVE DATE, THE REGISTRATION STATEMENT CEASES TO BE
EFFECTIVE AS TO ALL REGISTRABLE SECURITIES TO WHICH IT IS REQUIRED TO RELATE AT
ANY TIME PRIOR TO THE EXPIRATION OF THE EFFECTIVENESS PERIOD, EXCEPT AS
OTHERWISE PERMITTED BY THIS AGREEMENT, INCLUDING PURSUANT TO SECTION 6.1(E);
(III)
AFTER THE EFFECTIVE DATE, ANY REGISTRABLE SECURITIES COVERED BY
SUCH REGISTRATION STATEMENT ARE NOT LISTED ON AN ELIGIBLE MARKET;
(IV)
THE COMMON STOCK IS NOT LISTED OR QUOTED, OR IS SUSPENDED FROM
TRADING, ON AN ELIGIBLE MARKET FOR A PERIOD OF THREE TRADING DAYS (WHICH NEED
NOT BE CONSECUTIVE TRADING DAYS), OTHER THAN PURSUANT TO SECTION 6.1(E);
(V)
THE COMPANY