DAYS IF THE COMPANY SUSPENDS IN RELIANCE ON ITS ABILITY TO DO
SO DUE TO THE EXISTENCE OF A DEVELOPMENT THAT, IN THE GOOD FAITH DISCRETION OF
THE BOARD, MAKES IT APPROPRIATE TO SO SUSPEND OR WHICH RENDERS THE COMPANY
UNABLE TO COMPLY WITH THE COMMISSION REQUIREMENTS, OR THE COMPANY SUSPENDS THE
USE OF THE PROSPECTUS FORMING A PART OF SUCH REGISTRATION STATEMENT FOR MORE
THAN SIXTY (60) DAYS IN ANY PERIOD OF 365 CONSECUTIVE DAYS FOR ANY OTHER REASON
(ANY SUCH FAILURE OR BREACH BEING REFERRED TO AS AN "EVENT"), THE COMPANY SHALL
PAY AS LIQUIDATED DAMAGES FOR SUCH FAILURE OR BREACH AND NOT AS A PENALTY (THE
"LIQUIDATED DAMAGES") TO THE HOLDER AN AMOUNT EQUAL TO TWO PERCENT (2%) OF THE
PURCHASE PRICE OF THE SHARES, WARRANTS AND AIRS PAID BY THE HOLDER PURSUANT TO
THE PURCHASE AGREEMENT FOR EACH THIRTY (30) DAY PERIOD, PRO RATED FOR ANY PERIOD
LESS THAN THIRTY (30) DAYS, FOLLOWING THE EVENT UNTIL THE APPLICABLE EVENT HAS
BEEN CURED. PAYMENTS TO BE MADE PURSUANT TO THIS SECTION 8(D) SHALL BE DUE AND
PAYABLE IN CASH IN ARREARS AT THE END OF EACH THIRTY (30) DAY PERIOD. THE
PARTIES AGREE THAT THE LIQUIDATED DAMAGES REPRESENT A REASONABLE ESTIMATE ON THE
PART OF THE PARTIES, AS
13
OF THE DATE OF THIS AGREEMENT, OF THE AMOUNT OF DAMAGES THAT MAY BE INCURRED BY
THE HOLDER IF THE REGISTRATION STATEMENT IS NOT FILED ON OR PRIOR TO THE
REQUIRED FILING DATE OR HAS NOT BEEN DECLARED EFFECTIVE BY THE COMMISSION ON OR
PRIOR TO THE EFFECTIVENESS DATE AND MAINTAINED IN THE MANNER CONTEMPLATED HEREIN
DURING THE EFFECTIVENESS PERIOD OR IF ANY OTHER EVENT AS DESCRIBED HEREIN HAS
OCCURRED.
(E)
CONSENT TO JURISDICTION. THE COMPANY AND
EACH PURCHASER (I) HEREBY IRREVOCABLY SUBMIT TO THE NON-EXCLUSIVE JURISDICTION
OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS AND THE
COURTS OF THE STATE OF TEXAS LOCATED IN DALLAS COUNTY FOR THE PURPOSES OF ANY
SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
PURCHASE AGREEMENT, AND (II) HEREBY WAIVE, AND AGREE NOT TO ASSERT IN ANY SUCH
SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE
JURISDICTION OF SUCH COURT, THAT THE SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN
INCONVENIENT FORUM OR THAT THE VENUE OF THE SUIT, ACTION OR PROCEEDING IS
IMPROPER.
THE COMPANY AND EACH PURCHASER CONSENT TO PROCESS BEING SERVED IN ANY
SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF TO SUCH PARTY AT THE
ADDRESS IN EFFECT FOR NOTICES TO IT UNDER THIS AGREEMENT AND AGREES THAT SUCH
SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE
THEREOF.
NOTHING IN THIS SECTION 8(E) SHALL AFFECT OR LIMIT ANY RIGHT TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
(F)
AMENDMENTS AND WAIVERS.
THE PROVISIONS
OF THIS AGREEMENT, INCLUDING THE PROVISIONS OF THIS SENTENCE, MAY NOT BE
AMENDED, MODIFIED OR SUPPLEMENTED, AND WAIVERS OR CONSENTS TO