EFFECTIVENESS
DATE, OR (III) AFTER ITS EFFECTIVE DATE,
4
WITHOUT REGARD FOR THE REASON THEREUNDER OR EFFORTS THEREFOR, SUCH REGISTRATION
STATEMENT CEASES FOR ANY REASON TO BE EFFECTIVE AND AVAILABLE TO THE HOLDERS AS
TO ALL REGISTRABLE SECURITIES TO WHICH IT IS REQUIRED TO COVER AT ANY TIME PRIOR
TO THE EXPIRATION OF ITS EFFECTIVENESS PERIOD FOR MORE THAN AN AGGREGATE OF 40
TRADING DAYS IN ANY CONSECUTIVE 12 MONTH PERIOD (ANY SUCH FAILURE OR BREACH
BEING REFERRED TO AS AN "EVENT," AND FOR PURPOSES OF CLAUSES (I) OR (II) THE
DATE ON WHICH SUCH EVENT OCCURS, OR FOR PURPOSES OF CLAUSE (III) THE DATE WHICH
SUCH 40 TRADING DAY-PERIOD IS EXCEEDED, BEING REFERRED TO AS "EVENT DATE"), THEN
IN ADDITION TO ANY OTHER RIGHTS THE HOLDERS MAY HAVE HEREUNDER OR UNDER
APPLICABLE LAW: FOR EACH CALENDAR MONTH FROM THE APPLICABLE EVENT DATE THE
COMPANY SHALL PAY TO EACH HOLDER AN AMOUNT IN CASH, AS PARTIAL LIQUIDATED
DAMAGES AND NOT AS A PENALTY, EQUAL TO 1.5% OF THE AGGREGATE INVESTMENT AMOUNT
PAID BY SUCH HOLDER PURSUANT TO THE PURCHASE AGREEMENT UNTIL THE APPLICABLE
EVENT IS CURED.
THE PARTIES AGREE THAT THE COMPANY WILL NOT BE LIABLE FOR
LIQUIDATED DAMAGES UNDER THIS SECTION IN RESPECT OF THE WARRANTS.
IF THE
COMPANY FAILS TO PAY ANY PARTIAL LIQUIDATED DAMAGES PURSUANT TO THIS SECTION IN
FULL WITHIN SEVEN DAYS AFTER THE DATE PAYABLE, THE COMPANY WILL PAY INTEREST
THEREON AT A RATE OF 10% PER ANNUM (OR SUCH LESSER MAXIMUM AMOUNT THAT IS
PERMITTED TO BE PAID BY APPLICABLE LAW) TO THE HOLDER, ACCRUING DAILY FROM THE
DATE SUCH PARTIAL LIQUIDATED DAMAGES ARE DUE UNTIL SUCH AMOUNTS, PLUS ALL SUCH
INTEREST THEREON, ARE PAID IN FULL.
THE PARTIAL LIQUIDATED DAMAGES PURSUANT TO
THE TERMS HEREOF SHALL APPLY ON A DAILY PRO-RATA BASIS FOR ANY PORTION OF A
CALENDAR MONTH PRIOR TO THE CURE OF AN EVENT.
(D)
EACH HOLDER AGREES TO FURNISH TO THE COMPANY
A COMPLETED QUESTIONNAIRE IN THE FORM ATTACHED TO THIS AGREEMENT AS ANNEX B (A
"SELLING HOLDER QUESTIONNAIRE").
THE COMPANY SHALL NOT BE REQUIRED TO INCLUDE
THE REGISTRABLE SECURITIES OF A HOLDER IN A REGISTRATION STATEMENT AND SHALL NOT
BE REQUIRED TO PAY ANY LIQUIDATED OR OTHER DAMAGES UNDER SECTION 2(C) TO ANY
HOLDER WHO FAILS TO FURNISH TO THE COMPANY A FULLY COMPLETED SELLING HOLDER
QUESTIONNAIRE AT LEAST TWO TRADING DAYS PRIOR TO THE FILING DATE (SUBJECT TO THE
REQUIREMENTS SET FORTH IN SECTION 3(A)).
3.
REGISTRATION PROCEDURES.
In connection with the Company's registration obligations hereunder, the Company
shall:
(A)
NOT LESS THAN FOUR TRADING DAYS PRIOR TO
THE FILING OF A REGISTRATION STATEMENT OR ANY RELATED PROSPECTUS OR ANY
AMENDMENT OR SUPPLEMENT THERETO, THE COMPANY SHALL FURNISH TO EACH HOLDER COPIES
OF THE "SELLING SHAREHOLDERS" SECTION OF SUCH DOCUMENT, THE "PLAN OF
DISTRIBUTION" AND ANY RISK FACTOR CONTAINED IN SUCH DOCUMENT THAT ADDRESSES
SPECIFICALLY THIS TRANSACTION OR THE SELLING SHAREHOLDERS, AS PROPOSED TO BE
FILED WHICH DOCUMENTS WILL BE SUBJECT TO THE REVIEW OF SUCH HOLDER.