PURCHASER, IN CASH, AS PARTIAL LIQUIDATED
DAMAGES AND NOT AS A PENALTY, BY REASON OF ANY SUCH DELAY IN OR REDUCTION OF ITS
ABILITY TO SELL THE SECURITIES, AN AMOUNT IN CASH EQUAL TO ONE PERCENT (1.0%) OF
THE AGGREGATE SUBSCRIPTION AMOUNT OF SUCH PURCHASER'S SECURITIES ON THE DAY OF A
PUBLIC INFORMATION FAILURE AND ON EVERY THIRTIETH (30TH) DAY THEREAFTER AN
AMOUNT EQUAL TO 2.0% UNTIL THE EARLIER OF (A) THE DATE SUCH PUBLIC INFORMATION
FAILURE IS CURED AND (B) SUCH TIME THAT SUCH PUBLIC INFORMATION IS NO LONGER
REQUIRED
FOR THE PURCHASERS TO TRANSFER THE UNDERLYING SHARES PURSUANT TO
RULE 144.
THE PAYMENTS TO WHICH A PURCHASER SHALL BE ENTITLED PURSUANT TO THIS
SECTION 4.2(B) ARE REFERRED TO HEREIN AS "PUBLIC INFORMATION FAILURE PAYMENTS."
PUBLIC INFORMATION FAILURE PAYMENTS SHALL BE PAID ON THE EARLIER OF (I) THE LAST
DAY OF THE CALENDAR MONTH DURING WHICH SUCH PUBLIC INFORMATION FAILURE PAYMENTS
ARE INCURRED AND (II) THE THIRD (3RD) BUSINESS DAY AFTER THE EVENT OR FAILURE
GIVING RISE TO THE PUBLIC INFORMATION FAILURE PAYMENTS IS CURED.
IN THE EVENT
THE COMPANY FAILS TO MAKE PUBLIC INFORMATION FAILURE PAYMENTS IN A TIMELY
MANNER, SUCH PUBLIC INFORMATION FAILURE PAYMENTS SHALL BEAR INTEREST AT THE RATE
OF 1.5% PER MONTH (PRORATED FOR PARTIAL MONTHS) UNTIL PAID IN FULL. NOTHING
HEREIN SHALL LIMIT SUCH PURCHASER'S RIGHT TO PURSUE ACTUAL DAMAGES FOR THE
PUBLIC INFORMATION FAILURE, AND SUCH PURCHASER SHALL HAVE THE RIGHT TO PURSUE
ALL REMEDIES AVAILABLE TO IT AT LAW OR IN EQUITY INCLUDING, WITHOUT LIMITATION,
A DECREE OF SPECIFIC PERFORMANCE AND/OR INJUNCTIVE RELIEF.
4.3
Integration.
The Company shall not sell, offer for sale or
solicit offers to buy or otherwise negotiate in respect of any security (as
defined in Section 2 of the Securities Act) that would be integrated with the
offer or sale of the Securities to the Purchasers in a manner that would require
the registration under the Securities Act of the sale of the Securities to the
Purchasers or that would be integrated with the offer or sale of the Securities
for purposes of the rules and regulations of any Trading Market such that it
would require shareholder approval prior to the closing of such other
transaction unless shareholder approval is obtained before the closing of such
subsequent transaction.
4.4
Securities Laws Disclosure; Publicity.
The Company shall, (i) by
8:30 a.m. (New York City time) on the Trading Day immediately following the date
hereof, issue a press release disclosing the material terms of the transactions
contemplated hereby and (ii) by 8:30 a.m. New York time on the fourth Trading
Day immediately following the date hereof issue a Current Report on Form 8-K,
disclosing the material terms of the transactions contemplated hereby, and
including the Transaction Documents as exhibits thereto.
The Company and each
Purchaser shall consult with each other in issuing any other press releases with
respect to the transactions contemplated hereby, and neither the Company nor any
Purchaser shall issue any such press release nor otherwise make