TO THIS SECTION 3.3 ARE REFERRED TO HEREIN AS "EVENT
PAYMENTS." IN THE EVENT THE COMPANY FAILS TO MAKE EVENT PAYMENTS TO A DESIGNATED
HOLDER WITHIN TWO (2) BUSINESS DAYS AFTER AN EVENT PAYMENT DATE, SUCH EVENT
PAYMENTS OWED TO SUCH DESIGNATED HOLDER SHALL BEAR INTEREST AT THE RATE OF ONE
PERCENT (1.0%) PER MONTH (PRORATED FOR PARTIAL MONTHS) UNTIL PAID IN FULL. ALL
PRO RATED CALCULATIONS MADE PURSUANT TO THIS PARAGRAPH SHALL BE BASED UPON THE
ACTUAL NUMBER OF DAYS IN SUCH PRO RATED MONTH. NOTWITHSTANDING THE FOREGOING
PROVISIONS, IN NO EVENT SHALL THE COMPANY BE OBLIGATED TO PAY SUCH LIQUIDATED
DAMAGES (A) TO MORE THAN ONE DESIGNATED HOLDER IN RESPECT OF THE SAME
REGISTRABLE SECURITIES FOR THE SAME PERIOD OF TIME OR (B) IN AN AGGREGATE AMOUNT
THAT EXCEEDS 9.9% OF THE PURCHASE PRICE PAID BY SUCH DESIGNATED HOLDER FOR ITS
REGISTRABLE SECURITIES PURSUANT TO THE PURCHASE AGREEMENT.
For such purposes, each of the following shall constitute an "Event":
(A)
THE REGISTRATION STATEMENT IS NOT FILED ON OR PRIOR TO THE REQUIRED
FILING DATE OR IS NOT DECLARED EFFECTIVE ON OR PRIOR TO THE REQUIRED
EFFECTIVENESS DATE EXCEPT (A) AS PROVIDED FOR IN SECTION 5.5, (B) IN THE EVENT
THAT THE SEC OR THE STAFF (WHETHER BY MEANS OF A COMMENT LETTER PROVIDED BY THE
SEC OR THE STAFF RELATING TO THE REGISTRATION STATEMENT OR OTHERWISE) MAKES A
DETERMINATION THAT THE REGISTRATION OF THE REGISTRABLE SECURITIES UNDER THE
REGISTRATION STATEMENT MAY NOT BE APPROPRIATELY CHARACTERIZED AS SECONDARY
OFFERINGS THAT ARE ELIGIBLE TO BE MADE ON A SHELF BASIS UNDER RULE 415 OR THAT
ONE OR MORE OF THE DESIGNATED HOLDERS SHOULD BE NAMED AS AN UNDERWRITER THEREIN,
(C) IF THE COMPANY IS INVOLVED IN A "RULE 13E-3 TRANSACTION" AS DEFINED IN RULE
13E-3 UNDER THE EXCHANGE ACT OR (D) IN THE EVENT OF A MERGER OR CONSOLIDATION OF
THE COMPANY OR A SALE, LICENSE OR OTHER DISPOSITION OF MORE THAN FIFTY PERCENT
(50%) OF THE ASSETS OF THE COMPANY OR ONE OF ITS MATERIAL SUBSIDIARIES IN ONE OR
A SERIES OF RELATED TRANSACTIONS; OR
(B)
ON AND AFTER THE EFFECTIVE DATE OF A REGISTRATION STATEMENT FILED
HEREUNDER, A DESIGNATED HOLDER IS NOT PERMITTED TO SELL SEC APPROVED REGISTRABLE
SECURITIES UNDER THE REGISTRATION STATEMENT (OR A SUBSEQUENT REGISTRATION
STATEMENT FILED IN REPLACEMENT THEREOF) FOR ANY REASON (OTHER THAN THE FAULT OF
SUCH DESIGNATED HOLDER) FOR TWENTY (20) OR MORE CONSECUTIVE TRADING DAYS OR MORE
THAN SIXTY (60) TRADING DAYS, IN THE AGGREGATE, IN ANY 365 DAY PERIOD, EXCEPT AS
PROVIDED IN SECTION 5.5.
8
ARTICLE IV
INCIDENTAL OR "PIGGY-BACK" REGISTRATION
4.1
REQUEST FOR INCIDENTAL REGISTRATION. AT ANY TIME AFTER THE DATE
HEREOF UNTIL THE END OF THE EFFECTIVENESS PERIOD, IF (I) THE COMPANY PROPOSES TO
FILE A REGISTRATION STATEMENT UNDER THE SECURITIES ACT WITH RESPECT TO AN
OFFERING BY THE COMPANY FOR ITS OWN ACCOUNT (OTHER THAN A REGISTRATION STATEMENT
ON FORM S-4 OR S-8 OR ANY SUCCESSOR THERETO), OR (II) THE COMPANY PROPOSES TO
FILE A REGISTRATION