SHORT FORM AVAILABLE THEREFOR, IF
APPLICABLE), OR BOTH, SO AS TO COVER AT LEAST THE REQUIRED REGISTRATION AMOUNT
AS OF THE TRADING DAY IMMEDIATELY PRECEDING THE DATE OF THE FILING OF SUCH
AMENDMENT OR NEW REGISTRATION STATEMENT, IN EACH CASE, AS SOON AS PRACTICABLE,
BUT IN ANY EVENT NOT LATER THAN TWENTY (20) DAYS AFTER THE NECESSITY THEREFOR
ARISES.
THE COMPANY SHALL USE ITS BEST EFFORTS TO CAUSE SUCH AMENDMENT AND/OR
NEW REGISTRATION STATEMENT TO BECOME EFFECTIVE AS SOON AS PRACTICABLE FOLLOWING
THE FILING THEREOF.
FOR PURPOSES OF THE FOREGOING PROVISION, THE NUMBER OF
SHARES AVAILABLE UNDER A REGISTRATION STATEMENT SHALL BE DEEMED "INSUFFICIENT TO
COVER ALL OF THE REGISTRABLE SECURITIES" IF AT ANY TIME THE NUMBER OF SHARES OF
COMMON STOCK AVAILABLE FOR RESALE UNDER THE REGISTRATION STATEMENT IS LESS THAN
THE PRODUCT DETERMINED BY MULTIPLYING (I) THE REQUIRED REGISTRATION AMOUNT AS OF
SUCH TIME BY (II) 0.90.
THE CALCULATION SET FORTH IN THE FOREGOING SENTENCE
SHALL BE MADE WITHOUT REGARD TO ANY LIMITATIONS ON THE CONVERSION AND/OR
REDEMPTION OF THE NOTES AND SUCH CALCULATION SHALL ASSUME THAT THE NOTES ARE
THEN CONVERTIBLE INTO SHARES OF COMMON STOCK AT THE THEN PREVAILING CONVERSION
RATE (AS DEFINED IN THE NOTES), ASSUMING THE INITIAL OUTSTANDING PRINCIPAL
AMOUNT OF THE NOTES REMAINS OUTSTANDING THROUGH THE SCHEDULED MATURITY DATE (AS
DEFINED IN THE NOTES) AND ASSUMING NO CONVERSIONS OR REDEMPTIONS OF THE NOTES
PRIOR TO THE SCHEDULED MATURITY DATE.
G.
EFFECT OF FAILURE TO FILE AND OBTAIN AND MAINTAIN EFFECTIVENESS OF
REGISTRATION STATEMENT.
IF (I) A REGISTRATION STATEMENT COVERING ALL OF THE
REGISTRABLE SECURITIES REQUIRED TO BE COVERED THEREBY AND REQUIRED TO BE FILED
BY THE COMPANY PURSUANT TO THIS AGREEMENT IS (A) NOT FILED WITH THE SEC ON OR
BEFORE THE RESPECTIVE FILING DEADLINE (A "FILING FAILURE") OR (B) NOT DECLARED
EFFECTIVE BY THE SEC ON OR BEFORE THE RESPECTIVE EFFECTIVENESS DEADLINE (AN
"EFFECTIVENESS FAILURE") OR (II) ON ANY DAY AFTER THE EFFECTIVE DATE SALES OF
ALL OF THE REGISTRABLE SECURITIES REQUIRED TO BE INCLUDED ON SUCH REGISTRATION
STATEMENT CANNOT BE MADE (OTHER THAN DURING AN ALLOWABLE GRACE PERIOD (AS
DEFINED IN SECTION 3(R)) PURSUANT TO SUCH REGISTRATION STATEMENT (INCLUDING,
WITHOUT LIMITATION, BECAUSE OF THE SUSPENSION OF TRADING OR ANY OTHER LIMITATION
IMPOSED BY AN ELIGIBLE MARKET (AS DEFINED IN THE SECURITIES PURCHASE AGREEMENT),
A FAILURE TO KEEP SUCH REGISTRATION STATEMENT EFFECTIVE, A FAILURE TO DISCLOSE
SUCH INFORMATION AS IS NECESSARY FOR SALES TO BE MADE PURSUANT TO SUCH
REGISTRATION STATEMENT, A FAILURE TO REGISTER A SUFFICIENT NUMBER OF SHARES OF
COMMON STOCK OR TO MAINTAIN THE LISTING OF THE COMMON STOCK) (A "MAINTENANCE
FAILURE") THEN, AS PARTIAL RELIEF FOR THE DAMAGES TO ANY HOLDER BY REASON OF ANY
SUCH DELAY IN OR REDUCTION OF ITS ABILITY TO SELL THE UNDERLYING SHARES OF
COMMON STOCK (WHICH REMEDY SHALL NOT BE EXCLUSIVE OF ANY OTHER
6
REMEDIES AVAILABLE AT LAW OR IN EQUITY), THE COMPANY SHALL PAY TO EACH HOLDER OF
REGISTRABLE SECURITIES RELATING TO SUCH REGISTRATION STATEMENT AN AMOUNT IN CASH