that may be required pursuant to
Section 3(c), the 75th day following the date on which the Company first knows,
or reasonably should have known, that such additional Registration Statement is
required under such Section.
"Rule 415," "Rule 424" and "Rule 461" means Rule 415, Rule 424 and Rule 461,
respectively, promulgated by the Commission pursuant to the Securities Act, as
such Rules may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission having substantially the same effect as such
Rule.
2.
SHELF REGISTRATION
(A)
AS PROMPTLY AS POSSIBLE, AND IN ANY EVENT ON OR PRIOR TO EACH FILING DATE,
THE COMPANY SHALL PREPARE AND FILE WITH THE COMMISSION A "SHELF" REGISTRATION
STATEMENT COVERING THE RESALE OF ALL REGISTRABLE SECURITIES FOR AN OFFERING TO
BE MADE ON A CONTINUOUS BASIS PURSUANT TO RULE 415.
THE REGISTRATION STATEMENT
SHALL BE ON FORM S-3 (EXCEPT IF THE COMPANY IS NOT THEN ELIGIBLE TO REGISTER FOR
RESALE THE REGISTRABLE SECURITIES ON FORM S-3, IN WHICH CASE SUCH REGISTRATION
SHALL BE ON ANOTHER APPROPRIATE FORM IN ACCORDANCE HEREWITH AS THE HOLDERS MAY
CONSENT) AND SHALL CONTAIN (EXCEPT IF OTHERWISE DIRECTED BY THE HOLDERS) 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 PROMPTLY AS POSSIBLE AFTER THE
FILING THEREOF, BUT IN ANY EVENT PRIOR TO THE REQUIRED EFFECTIVENESS DATE, AND
SHALL USE ITS BEST EFFORTS TO KEEP SUCH REGISTRATION STATEMENT CONTINUOUSLY
EFFECTIVE UNDER THE SECURITIES ACT UNTIL THE EARLIER OF (I) THE FIFTH
ANNIVERSARY OF THE EFFECTIVE DATE AND (II) WHEN ALL REGISTRABLE SECURITIES
COVERED BY SUCH REGISTRATION STATEMENT HAVE BEEN SOLD OR CAN BE SOLD UNDER RULE
144(K) (THE "EFFECTIVENESS PERIOD").
THE COMPANY SHALL NOTIFY EACH HOLDER IN
WRITING PROMPTLY (AND IN ANY EVENT WITHIN TWO TRADING DAYS) AFTER RECEIVING
NOTIFICATION FROM THE COMMISSION THAT A REGISTRATION STATEMENT HAS BEEN DECLARED
EFFECTIVE.
(B)
THE INITIAL REGISTRATION STATEMENT TO BE FILED HEREUNDER SHALL COVER THE
SALE BY THE HOLDERS OF AT LEAST THE REQUIRED MINIMUM NUMBER OF SHARES OF COMMON
STOCK.
(1) 120 days following Closing.
2
(C)
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 HOLDERS (WHICH REMEDY SHALL NOT BE
EXCLUSIVE OF ANY OTHER REMEDIES AVAILABLE AT LAW OR IN EQUITY), 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 AGGREGATE PURCHASE PRICE PAID UNDER THE PURCHASE
AGREEMENT FOR THE SECURITIES HELD BY SUCH HOLDER FOR EACH OF THE FIRST AND
SECOND MONTHS AND 2.0% FOR EACH MONTH THEREAFTER.
THE LIQUIDATED DAMAGES
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.
FOR SUCH PURPOSES, EACH OF