(II) THE SUM OF (X) THE AGGREGATE STATED VALUE ON
SUCH DATE AND (Y) ALL ACCRUED BUT UNPAID DIVIDENDS ON SUCH DATE; (C) THE
DIFFERENCE BETWEEN (I) THE AMOUNT OF ALL DIVIDENDS PAID DURING ALL TRIGGERING
PERIODS AND (II) THE AMOUNT OF DIVIDENDS THAT WOULD HAVE BEEN PAID DURING ALL
TRIGGERING PERIODS HAD THE DIVIDEND RATE NOT INCREASED DURING THE TRIGGERING
PERIODS TO THE TRIGGERING PERIOD DIVIDEND RATE; (D) THE AGGREGATE CASH DAMAGES
PAID PURSUANT TO SECTION 1(C) OF THE WARRANTS, AND (E) THE AGGREGATE
REGISTRATION DELAY PAYMENTS (AS DEFINED IN SECTION 2(F) OF THE REGISTRATION
RIGHTS AGREEMENT). THE PRECEDING SENTENCE SHALL BE REFERRED TO IN THE
TRANSACTION DOCUMENTS AS THE "LIMITATION ON DAMAGES."
IF THE COMPANY FAILS TO
PAY THE ADDITIONAL DAMAGES SET FORTH IN THIS SECTION 3(D)(V) WITHIN FIVE
(5) BUSINESS DAYS OF THE DATE INCURRED, THEN THE HOLDER ENTITLED TO SUCH
PAYMENTS SHALL HAVE THE RIGHT AT ANY TIME, SO LONG AS THE COMPANY CONTINUES TO
FAIL TO MAKE SUCH PAYMENTS, TO REQUIRE THE COMPANY, UPON WRITTEN NOTICE, TO
IMMEDIATELY ISSUE, IN LIEU OF SUCH CASH DAMAGES, THE NUMBER OF COMMON SHARES
EQUAL TO THE QUOTIENT OF (X) THE AGGREGATE AMOUNT OF THE DAMAGES PAYMENTS
DESCRIBED HEREIN DIVIDED BY (Y) THE CONVERSION PRICE IN EFFECT ON SUCH
CONVERSION DATE AS SPECIFIED BY THE HOLDER IN THE CONVERSION NOTICE. IN ADDITION
TO THE FOREGOING, IF WITHIN THREE (3) BUSINESS DAYS AFTER THE COMPANY'S RECEIPT
OF THE FACSIMILE COPY OF A CONVERSION NOTICE THE COMPANY SHALL FAIL TO ISSUE AND
DELIVER A CERTIFICATE TO A HOLDER OR CREDIT SUCH HOLDER'S BALANCE ACCOUNT WITH
DTC FOR THE NUMBER OF COMMON SHARES TO WHICH SUCH HOLDER IS ENTITLED UPON SUCH
HOLDER'S CONVERSION OF SHARES OF SERIES A PREFERRED STOCK, AND IF ON OR AFTER
SUCH BUSINESS DAY THE HOLDER PURCHASES (IN AN OPEN MARKET TRANSACTION OR
OTHERWISE) COMMON SHARES TO DELIVER IN SATISFACTION OF A SALE BY THE HOLDER OF
THE COMMON SHARES ISSUABLE UPON SUCH CONVERSION THAT THE HOLDER
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ANTICIPATED RECEIVING FROM THE COMPANY (A "BUY-IN"), THEN THE COMPANY SHALL,
WITHIN THREE (3) BUSINESS DAYS AFTER THE HOLDER'S REQUEST AND IN THE HOLDER'S
DISCRETION, EITHER (I) PAY CASH TO THE HOLDER IN AN AMOUNT EQUAL TO THE HOLDER'S
TOTAL PURCHASE PRICE (INCLUDING BROKERAGE COMMISSIONS, IF ANY) FOR THE COMMON
SHARES SO PURCHASED (THE "BUY-IN PRICE"), AT WHICH POINT THE COMPANY'S
OBLIGATION TO DELIVER SUCH CERTIFICATE (AND TO ISSUE SUCH COMMON SHARES) SHALL
TERMINATE, OR (II) PROMPTLY HONOR ITS OBLIGATION TO DELIVER TO THE HOLDER A
CERTIFICATE OR CERTIFICATES REPRESENTING SUCH COMMON SHARES AND PAY CASH TO THE
HOLDER IN AN AMOUNT EQUAL TO THE EXCESS (IF ANY) OF THE BUY-IN PRICE OVER THE
PRODUCT OF (A) SUCH NUMBER OF COMMON SHARES, TIMES (B) THE CLOSING SALE PRICE ON
THE CONVERSION DATE.
(B)
VOID CONVERSION NOTICE; ADJUSTMENT OF
CONVERSION PRICE.
IF FOR ANY REASON A HOLDER HAS NOT RECEIVED ALL OF THE COMMON
SHARES TO WHICH SUCH HOLDER IS ENTITLED PRIOR TO THE FIFTH (5TH) BUSINESS DAY
AFTER THE