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
FIFTEEN (15) DAYS AFTER THE NECESSITY THEREFOR ARISES.
THE COMPANY SHALL USE
ITS COMMERCIALLY REASONABLE 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).
F.
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 OR OTHERWISE
(INCLUDING, WITHOUT LIMITATION, BECAUSE OF A FAILURE TO KEEP SUCH REGISTRATION
STATEMENT EFFECTIVE, TO DISCLOSE SUCH INFORMATION AS IS NECESSARY FOR SALES TO
BE MADE PURSUANT TO SUCH REGISTRATION STATEMENT, 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
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
EQUAL TO ONE PERCENT (1.0%) OF THE AGGREGATE PURCHASE PRICE (AS SUCH TERM IS
DEFINED IN THE SECURITIES PURCHASE AGREEMENT) OF SUCH INVESTOR'S REGISTRABLE
SECURITIES WHETHER OR NOT INCLUDED IN SUCH REGISTRATION STATEMENT, ON EACH OF
THE FOLLOWING DATES:
(I) ON EVERY THIRTIETH DAY AFTER THE DAY OF A FILING
FAILURE AND THEREAFTER (PRO RATED FOR PERIODS TOTALING