INCLUDED IN SUCH REGISTRATION STATEMENT, OR THE HOLDERS ARE OTHERWISE NOT
PERMITTED TO UTILIZE THE PROSPECTUS THEREIN TO RESELL SUCH REGISTRABLE
SECURITIES, FOR MORE THAN TEN (10) CONSECUTIVE CALENDAR DAYS OR MORE THAN AN
AGGREGATE OF TWENTY (20) CALENDAR DAYS (WHICH NEED NOT BE CONSECUTIVE CALENDAR
DAYS) DURING ANY 12-MONTH PERIOD, EXCEPT TO THE EXTENT THAT A SUSPENSION OF THE
REGISTRATION STATEMENT IS OTHERWISE PERMITTED BY THIS AGREEMENT (ANY SUCH
FAILURE OR BREACH BEING REFERRED TO AS AN "EVENT," AND FOR PURPOSES OF CLAUSES
(I) AND (IV), THE DATE ON WHICH SUCH EVENT OCCURS, AND FOR PURPOSE OF CLAUSE
(II) THE DATE ON WHICH SUCH FIVE (5) BUSINESS DAY PERIOD IS EXCEEDED, AND FOR
PURPOSE OF CLAUSE (IV) THE DATE ON WHICH SUCH TEN (10) OR TWENTY (20) CALENDAR
DAY PERIOD, AS APPLICABLE, IS EXCEEDED BEING REFERRED TO AS "EVENT DATE"), THEN,
IN ADDITION TO ANY OTHER RIGHTS THE HOLDERS MAY HAVE
4
HEREUNDER OR UNDER APPLICABLE LAW, ON EACH MONTHLY ANNIVERSARY OF EACH SUCH
EVENT DATE (IF THE APPLICABLE EVENT SHALL NOT HAVE BEEN CURED BY SUCH DATE)
UNTIL THE APPLICABLE EVENT IS CURED, FROM THE DATE OF THE EVENT UNTIL THE
TWELVE-MONTH ANNIVERSARY OF THE EVENT, THE COMPANY SHALL PAY TO EACH HOLDER AN
AMOUNT IN CASH, AS PARTIAL LIQUIDATED DAMAGES AND NOT AS A PENALTY, EQUAL TO TWO
PERCENT (2%) OF THE AGGREGATE PURCHASE PRICE PAID BY SUCH HOLDER PURSUANT TO THE
PURCHASE AGREEMENT FOR ANY UNREGISTERED REGISTRABLE SECURITIES UNDERLYING
EXCHANGE NOTES OR SERIES A SHARES THEN HELD BY SUCH HOLDER (SO LONG AS SUCH
HOLDER HAS REQUESTED THAT SUCH REGISTRABLE SECURITIES BE INCLUDED IN THE
REGISTRATION STATEMENT AND THEY ARE REQUIRED BY THIS AGREEMENT TO BE INCLUDED IN
THE REGISTRATION STATEMENT); PROVIDED, HOWEVER, SUCH PARTIAL LIQUIDATED DAMAGES
SHALL NOT BE PAID WITH RESPECT TO ANY REGISTRABLE SECURITIES WHICH THE HOLDER
THEREOF MAY SELL AT SUCH TIME UNDER RULE 144 AND WHICH HAVE BEEN HELD BY SUCH
HOLDER FOR A PERIOD OF MORE THAN ONE (1) YEAR FOR PURPOSES OF RULE 144(D).
IF
THE COMPANY FAILS TO PAY ANY PARTIAL LIQUIDATED DAMAGES PURSUANT TO THIS
SECTION IN FULL WITHIN SEVEN (7) DAYS AFTER THE DATE PAYABLE, THE COMPANY WILL
PAY INTEREST THEREON AT A RATE OF EIGHTEEN PERCENT (18%) 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 MONTH PRIOR TO THE CURE OF AN EVENT.
(E)
IF AT ANY TIME THE COMMISSION TAKES THE POSITION THAT THE OFFERING OF SOME
OR ALL OF THE REGISTRABLE SECURITIES IN A REGISTRATION STATEMENT IS NOT ELIGIBLE
TO BE MADE ON A DELAYED OR CONTINUOUS BASIS UNDER THE PROVISIONS OF RULE 415
UNDER THE SECURITIES ACT OR REQUIRES ANY HOLDER TO BE NAMED AS