THE
HOLDERS, SHALL BE PERMITTED TO SUSPEND THE AVAILABILITY OF A REGISTRATION
STATEMENT COVERING THE REGISTRABLE SECURITIES FOR ANY BONA FIDE REASON
WHATSOEVER FOR UP TO 30 CONSECUTIVE DAYS (THE "DEFERRAL PERIOD") IN ANY 90-DAY
PERIOD WITHOUT BEING OBLIGATED TO PAY LIQUIDATED DAMAGES; PROVIDED THAT DEFERRAL
PERIODS MAY NOT TOTAL MORE THAN 90 DAYS IN THE AGGREGATE IN ANY TWELVE-MONTH
PERIOD.
THE COMPANY SHALL NOT BE REQUIRED TO SPECIFY IN THE WRITTEN NOTICE TO
THE HOLDERS THE NATURE OF THE EVENT GIVING RISE TO THE DEFERRAL PERIOD.
(C)
SO LONG AS THE SHARES REMAIN OUTSTANDING, THE COMPANY SHALL NOTIFY
THE HOLDERS WITHIN FIVE BUSINESS DAYS AFTER EACH AND EVERY DATE ON WHICH AN
EVENT OCCURS IN RESPECT OF WHICH LIQUIDATED DAMAGES ARE REQUIRED TO BE PAID.
ANY AMOUNTS OF LIQUIDATED DAMAGES DUE PURSUANT TO CLAUSE (A)(I), (A)(II),
(A)(III), (A)(IV) OR (A)(V) OF THIS SECTION 3 WILL BE PAYABLE IN CASH ON
APRIL 15 AND OCTOBER 15 OF EACH YEAR (EACH, A "LIQUIDATED DAMAGES PAYMENT
DATE"), COMMENCING WITH THE FIRST SUCH LIQUIDATED DAMAGES PAYMENT DATE OCCURRING
AFTER ANY SUCH LIQUIDATED DAMAGES COMMENCES TO ACCRUE, TO HOLDERS OF RECORD OF
THE APPLICABLE REGISTRABLE SECURITIES ON THE IMMEDIATELY PRECEEDING APRIL 1 AND
OCTOBER 1, WHETHER OR NOT SUCH DAY IS A BUSINESS DAY.
THE AMOUNT OF LIQUIDATED
DAMAGES FOR REGISTRABLE SECURITIES WILL BE DETERMINED BY MULTIPLYING THE
APPLICABLE RATE OF LIQUIDATED DAMAGES BY THE NUMBER OF SHARES OF REGISTRABLE
SECURITIES OUTSTANDING ON THE FIRST LIQUIDATED DAMAGES PAYMENT DATE
7
following such Registration Default in the case of the first such payment of
Liquidated Damages with respect to a Registration Default (and thereafter at the
next succeeding Liquidated Damages Payment Date until the cure of such
Registration Default), multiplied by a fraction, the numerator of which is the
number of days such Liquidated Damages rate was applicable during such period
(determined on the basis of a 360-day year comprised of twelve 30-day months
and, in the case of a partial month, the actual number of days elapsed), and the
denominator of which is 360.
The parties agree that the sole monetary damages
payable for a violation of the terms of this Agreement with respect to which
Liquidated Damages are expressly provided shall be such Liquidated Damages.
4.
REGISTRATION PROCEDURES.
In connection with its registration obligations pursuant to Section 2 hereof,
the Company shall:
(A)
PREPARE AND FILE WITH THE SEC, ON OR PRIOR TO THE FILING DATE, A
REGISTRATION STATEMENT OR REGISTRATION STATEMENTS AS PRESCRIBED BY SECTION 2
HEREOF, AND USE ITS COMMERCIALLY REASONABLE EFFORTS TO CAUSE EACH SUCH
REGISTRATION STATEMENT TO BECOME EFFECTIVE AND REMAIN EFFECTIVE AS PROVIDED
HEREIN; PROVIDED THAT BEFORE FILING ANY REGISTRATION STATEMENT OR PROSPECTUS OR
ANY AMENDMENTS OR SUPPLEMENTS THERETO, THE COMPANY SHALL FURNISH TO AND AFFORD
THE INITIAL SHAREHOLDER A REASONABLE OPPORTUNITY TO REVIEW COPIES OF ALL SUCH
DOCUMENTS PROPOSED TO BE FILED (IN EACH CASE, WHERE POSSIBLE, AT LEAST THREE
BUSINESS DAYS PRIOR TO SUCH FILING, OR SUCH LATER DATE AS IS REASONABLE UNDER
THE CIRCUMSTANCES)