DATE BY A PURCHASER PARTICIPATING UNDER THIS
SECTION 4.13 AND (Y) THE SUM OF THE AGGREGATE SUBSCRIPTION AMOUNTS OF SECURITIES
PURCHASED ON THE CLOSING DATE BY ALL PURCHASERS PARTICIPATING UNDER THIS SECTION
4.13.
(F)
THE COMPANY MUST PROVIDE THE PURCHASERS WITH A SECOND SUBSEQUENT
FINANCING NOTICE, AND THE PURCHASERS WILL AGAIN HAVE THE RIGHT OF PARTICIPATION
SET FORTH ABOVE IN THIS SECTION 4.13, IF THE SUBSEQUENT FINANCING SUBJECT TO THE
INITIAL SUBSEQUENT FINANCING NOTICE IS NOT CONSUMMATED FOR ANY REASON ON THE
TERMS SET FORTH IN SUCH SUBSEQUENT FINANCING NOTICE WITHIN 60 TRADING DAYS AFTER
THE DATE OF THE INITIAL SUBSEQUENT FINANCING NOTICE.
(G)
NOTWITHSTANDING THE FOREGOING, THIS SECTION 4.13 SHALL NOT APPLY
IN RESPECT OF (I) AN EXEMPT ISSUANCE AND (II) THE ISSUANCE OF SECURITIES UPON
THE EXERCISE OR
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EXCHANGE OF OR CONVERSION OF THE COMPANY'S OUTSTANDING SERIES C PREFERRED STOCK
AND OUTSTANDING WARRANTS TO PURCHASE SERIES C PREFERRED STOCK AND SERIES B-1
PREFERRED STOCK.
4.14
MOST FAVORED NATION PROVISION.
IF THE COMPANY EFFECTS A SUBSEQUENT
FINANCING AT ANY TIME WHILE THE DEBENTURES REMAIN OUTSTANDING, EACH PURCHASER
MAY ELECT, IN ITS SOLE DISCRETION, TO EXCHANGE ALL OR SOME OF THE DEBENTURES
THEN HELD BY SUCH PURCHASER FOR ANY SECURITIES ISSUED IN A SUBSEQUENT FINANCING
BASED ON THE EFFECTIVE PRICE AT WHICH SUCH SECURITIES WERE SOLD IN SUCH
SUBSEQUENT FINANCING.
4.15
EQUAL TREATMENT OF PURCHASERS.
NO CONSIDERATION SHALL BE OFFERED
OR PAID TO ANY PERSON TO AMEND OR CONSENT TO A WAIVER OR MODIFICATION OF ANY
PROVISION OF ANY OF THE TRANSACTION DOCUMENTS UNLESS THE SAME CONSIDERATION IS
ALSO OFFERED TO ALL OF THE PARTIES TO THE TRANSACTION DOCUMENTS. FURTHER, THE
COMPANY SHALL NOT MAKE ANY PAYMENT OF PRINCIPAL OR INTEREST ON THE DEBENTURES IN
AMOUNTS WHICH ARE DISPROPORTIONATE TO THE RESPECTIVE PRINCIPAL AMOUNTS
OUTSTANDING ON THE DEBENTURES AT ANY APPLICABLE TIME.
FOR CLARIFICATION
PURPOSES, THIS PROVISION CONSTITUTES A SEPARATE RIGHT GRANTED TO EACH PURCHASER
BY THE COMPANY AND NEGOTIATED SEPARATELY BY EACH PURCHASER, AND IS INTENDED FOR
THE COMPANY TO TREAT THE PURCHASERS AS A CLASS AND SHALL NOT IN ANY WAY BE
CONSTRUED AS THE PURCHASERS ACTING IN CONCERT OR AS A GROUP WITH RESPECT TO THE
PURCHASE, DISPOSITION OR VOTING OF SECURITIES OR OTHERWISE.
4.16
SHORT SALES AND CONFIDENTIALITY AFTER THE DATE HEREOF. EACH
PURCHASER SEVERALLY AND NOT JOINTLY WITH THE OTHER PURCHASERS COVENANTS THAT
NEITHER IT NOR ANY AFFILIATES ACTING ON ITS BEHALF OR PURSUANT TO ANY
UNDERSTANDING WITH IT WILL EXECUTE ANY SHORT SALES DURING THE PERIOD AFTER THE
DISCUSSION TIME AND ENDING AT THE TIME THAT THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT ARE FIRST PUBLICLY ANNOUNCED AS DESCRIBED IN SECTION 4.6.
FURTHER, EACH PURCHASER SEVERALLY AND NOT JOINTLY WITH THE OTHER PURCHASERS
COVENANTS THAT UNTIL SUCH PURCHASER DOES NOT HOLD ANY OF THE DEBENTURES OR
WARRANTS, SUCH PURCHASER SHALL NOT CREATE ANY "NET SHORT" POSITION IN THE
COMPANY'S COMMON STOCK, WHEREBY THE PURCHASER SHALL HAVE ENGAGED IN A SHORT SALE
WHICH WOULD MAKE SUCH PURCHASER'S SHORT POSITION GREATER THAN THE NUMBER OF