THAT ALL
REGISTRABLE SECURITIES COVERED BY SUCH REGISTRATION STATEMENT HAVE BEEN SOLD OR
CAN BE SOLD PUBLICLY UNDER RULE 144(K) (THE "EFFECTIVENESS PERIOD").
(C)
THE COMPANY SHALL NOTIFY INVESTORS PROMPTLY
(AND IN ANY EVENT WITHIN TWO TRADING DAYS) AFTER RECEIVING NOTIFICATION FROM THE
SEC THAT THE REGISTRATION STATEMENT HAS BEEN DECLARED EFFECTIVE.
22
(D)
SHOULD AN EVENT (AS DEFINED BELOW) OCCUR,
THEN UPON THE OCCURRENCE OF SUCH EVENT, AND ON EVERY MONTHLY ANNIVERSARY THEREOF
UNTIL THE APPLICABLE EVENT IS CURED, AS PARTIAL RELIEF FOR THE DAMAGES SUFFERED
THEREFROM BY THE INVESTORS (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 INVESTOR AN AMOUNT IN CASH, AS LIQUIDATED DAMAGES AND NOT AS A
PENALTY, EQUAL TO ONE PERCENT OF (I) THE NUMBER OF SECURITIES HELD BY SUCH
INVESTOR AS OF THE DATE OF SUCH EVENT, MULTIPLIED BY (II) THE PURCHASE PRICE
PAID BY SUCH INVESTOR FOR SUCH SECURITIES THEN HELD.
THE PAYMENTS TO WHICH AN
INVESTOR 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 RATED 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 1.0% 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.
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; PROVIDED, HOWEVER, THAT FOR THE PURPOSES OF THE
EVENT PAYMENT UNDER THIS SECTION 6.1(D) ONLY, THE COMPANY SHALL HAVE AN
ADDITIONAL 30 DAYS TO CURE THE FAILURE TO DECLARE THE REGISTRATION STATEMENT
EFFECTIVE ON OR PRIOR TO THE REQUIRED EFFECTIVENESS DATE BEFORE SUCH EVENT
PAYMENT IS DUE TO THE INVESTORS UNDER THIS SECTION 6.1(D);
(II)
EXCEPT (A) AS PROVIDED FOR IN
SECTION 6.1(E), (B) IF THE COMPANY IS INVOLVED IN A "RULE 13E-3 TRANSACTION" AS
DEFINED IN RULE 13E-3 UNDER THE EXCHANGE ACT, OR (C) IN THE EVENT OF A MERGER OR
CONSOLIDATION OF THE COMPANY OR A SALE OF MORE THAN ONE-HALF OF THE ASSETS OF
THE COMPANY IN ONE OR A SERIES OF RELATED TRANSACTIONS, UNLESS FOLLOWING SUCH
TRANSACTION OR SERIES OF TRANSACTIONS, THE HOLDERS OF THE COMPANY'S SECURITIES
PRIOR TO THE FIRST SUCH TRANSACTION CONTINUE TO HOLD AT LEAST 50% OF THE VOTING
RIGHTS AND EQUITY INTERESTS OF THE SURVIVING ENTITY OR ACQUIRER (CLAUSES (B) AND
(C), COLLECTIVELY, THE "EXCLUDED EVENTS"), AFTER THE EFFECTIVE DATE, AN INVESTOR
IS NOT PERMITTED TO SELL REGISTRABLE SECURITIES UNDER THE REGISTRATION STATEMENT
(OR A SUBSEQUENT REGISTRATION STATEMENT FILED IN