CAN ONLY BE BROUGHT ON OR PRIOR TO THE FIRST
ANNIVERSARY OF THE CLOSING DATE.
(E)
THE INDEMNITY PROVIDED FOR IN THIS SECTION 3.4 SHALL BE THE SOLE AND
EXCLUSIVE MONETARY REMEDY OF INDEMNIFIED PARTIES AFTER THE CLOSING FOR ANY
INACCURACY OF ANY REPRESENTATION OR WARRANTY OF THE COMPANY OR ANY BREACH OF ANY
COVENANT OR AGREEMENT OF THE COMPANY CONTAINED IN THIS AGREEMENT; PROVIDED THAT
NOTHING HEREIN SHALL LIMIT IN ANY WAY ANY PURCHASER'S REMEDIES IN RESPECT OF
FRAUD BY ANY OTHER PARTY IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED
HEREBY.
3.5
REGISTRATION RIGHTS.
(A)
DEFINED TERMS.
AS USED IN THIS SECTION 3.5, THE FOLLOWING TERMS HAVE THE
FOLLOWING MEANINGS:
(1)
"DISCLOSURE PACKAGE" MEANS, WITH RESPECT TO ANY OFFERING OF SECURITIES,
(I) THE PRELIMINARY PROSPECTUS, (II) EACH FREE WRITING PROSPECTUS AND (III) ALL
OTHER INFORMATION, IN EACH CASE, THAT IS DEEMED, UNDER RULE 159 PROMULGATED
UNDER THE SECURITIES ACT, TO HAVE BEEN CONVEYED TO PURCHASERS OF SECURITIES AT
THE TIME OF SALE OF SUCH SECURITIES (INCLUDING A CONTRACT OF SALE).
(2)
"FREE WRITING PROSPECTUS" MEANS ANY "FREE WRITING PROSPECTUS" AS DEFINED
IN RULE 405 PROMULGATED UNDER THE SECURITIES ACT.
(3)
"HOLDER" MEANS ANY PURCHASER AND ANY TRANSFEREE OF REGISTRABLE SECURITIES.
(4)
"HOLDER FREE WRITING PROSPECTUS" MEANS EACH FREE WRITING PROSPECTUS
PREPARED BY OR ON BEHALF OF THE RELEVANT HOLDER OR USED OR REFERRED TO BY SUCH
HOLDER IN CONNECTION WITH THE OFFERING OF REGISTRABLE SECURITIES.
(5)
"REGISTRABLE SECURITIES" MEANS (I) THE SHARES OF COMMON STOCK PURCHASED
PURSUANT TO THIS AGREEMENT, (II) THE SHARES OF CONVERTIBLE PREFERRED STOCK
PURCHASED PURSUANT TO THIS AGREEMENT, (III) ALL SHARES OF COMMON STOCK ISSUED OR
ISSUABLE UPON CONVERSION OF SHARES OF CONVERTIBLE PREFERRED STOCK OR EXERCISE OF
THE WARRANTS PURCHASED PURSUANT TO THIS AGREEMENT AND (IV) AND ANY SECURITIES
WHICH MAY BE ISSUED OR ISSUED OR ISSUABLE IN RESPECT OF SHARES REFERRED TO IN
CLAUSES (I) OR (III) BY WAY OF SHARE DIVIDEND OR SHARE SPLIT OR IN CONNECTION
WITH A COMBINATION OF SHARES, RECAPITALIZATION, RECLASSIFICATION, MERGER,
AMALGAMATION, ARRANGEMENT, CONSOLIDATION OR OTHER REORGANIZATION. AS TO ANY
PARTICULAR SECURITIES CONSTITUTING REGISTRABLE SECURITIES, SUCH SECURITIES WILL
CEASE TO BE REGISTRABLE SECURITIES WHEN (W) A REGISTRATION STATEMENT WITH
RESPECT TO THE SALE BY THE HOLDER THEREOF SHALL HAVE BEEN DECLARED EFFECTIVE
UNDER THE SECURITIES ACT AND SUCH SECURITIES SHALL HAVE BEEN DISPOSED OF IN
ACCORDANCE WITH SUCH REGISTRATION STATEMENT, (X) SUCH SECURITIES HAVE BEEN SOLD
TO THE PUBLIC PURSUANT TO RULE 144 OR RULE 145 OR OTHER EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT, (Y) SUCH
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SECURITIES HAVE BEEN ACQUIRED BY THE COMPANY OR (Z) SUCH SECURITIES ARE ABLE TO
BE SOLD BY A HOLDER WITHOUT RESTRICTION AS TO VOLUME OR MANNER OF SALE PURSUANT
TO RULE 144(K) UNDER THE SECURITIES ACT.
(6)
"SELLING HOLDERS" MEANS, WITH RESPECT TO ANY UNDERWRITTEN OFFERING, THE
HOLDERS WHOSE REGISTRABLE SECURITIES ARE INCLUDED FOR SALE PURSUANT TO SUCH
UNDERWRITTEN OFFERING.
(B)
SHELF REGISTRATION.
(1)
AS SOON AS REASONABLY PRACTICABLE FOLLOWING THE CLOSING (BUT IN ANY EVENT
NO LATER THAN TWENTY