COMMON STOCK ON THE NOTE
DELIVERY DATE (SUCH PRODUCT IS REFERRED TO HEREIN AS THE "NOTE PRODUCT AMOUNT");
PROVIDED THAT IN NO EVENT SHALL CASH DAMAGES ACCRUE PURSUANT TO THIS
SECTION 4(C)(V)(A) WITH RESPECT TO THE SHARE PRODUCT AMOUNT OR THE NOTE PRODUCT
AMOUNT DURING THE PERIOD, IF ANY, IN WHICH THE CONVERSION PRICE OR THE
ARITHMETIC CALCULATION OF THE CONVERSION RATE IS SUBJECT TO A BONA FIDE DISPUTE
THAT IS SUBJECT TO AND BEING RESOLVED PURSUANT TO, AND IN COMPLIANCE WITH THE
TIME PERIODS AND OTHER PROVISIONS OF, THE DISPUTE RESOLUTION PROVISIONS OF
SECTION 4(C)(III), PROVIDED THAT THE SHARES AND/OR THE NOTE ARE DELIVERED TO THE
HOLDER WITHIN TWO (2) BUSINESS DAYS OF THE RESOLUTION OF SUCH BONA FIDE
DISPUTE.
ALTERNATIVELY, SUBJECT TO
13
SECTION 4(C)(III), AT THE ELECTION OF THE HOLDER MADE IN THE HOLDER'S SOLE
DISCRETION, THE COMPANY SHALL PAY TO THE HOLDER, IN LIEU OF THE ADDITIONAL
DAMAGES REFERRED TO IN THE PRECEDING SENTENCE (BUT IN ADDITION TO ALL OTHER
AVAILABLE REMEDIES THAT THE HOLDER MAY PURSUE HEREUNDER AND UNDER THE SECURITIES
PURCHASE AGREEMENT (INCLUDING INDEMNIFICATION PURSUANT TO SECTION 8 THEREOF OR
AT LAW OR IN EQUITY)), 120% OF THE AMOUNT BY WHICH (A) THE HOLDER'S TOTAL
PURCHASE PRICE (INCLUDING BROKERAGE COMMISSIONS, IF ANY) FOR THE SHARES
PURCHASED TO MAKE DELIVERY IN SATISFACTION OF A SALE BY THE HOLDER OF THE SHARES
TO WHICH THE HOLDER IS ENTITLED BUT HAS NOT RECEIVED UPON A CONVERSION EXCEEDS
(B) THE NET PROCEEDS RECEIVED BY THE HOLDER FROM THE SALE OF THE SHARES TO WHICH
THE HOLDER IS ENTITLED BUT HAS NOT RECEIVED UPON SUCH CONVERSION.
IF THE
COMPANY FAILS TO PAY THE ADDITIONAL DAMAGES SET FORTH IN THIS
SECTION 4(C)(V)(A) 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 PROMPTLY ISSUE, IN LIEU OF SUCH CASH DAMAGES, THE NUMBER
OF 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.
(B)
NOTICE OF VOID CONVERSION; ADJUSTMENT TO CONVERSION PRICE.
IF FOR
ANY REASON THE HOLDER HAS NOT RECEIVED ALL OF THE SHARES PRIOR TO THE TENTH
(10TH) BUSINESS DAY AFTER THE SHARE DELIVERY DATE WITH RESPECT TO A CONVERSION
OF THIS NOTE, OTHER THAN DUE TO THE PENDENCY OF A DISPUTE BEING RESOLVED IN
ACCORDANCE WITH SECTION 4(C)(III) (A "CONVERSION FAILURE"), THEN THE HOLDER,
UPON WRITTEN NOTICE TO THE COMPANY, MAY VOID ITS CONVERSION NOTICE WITH RESPECT
TO, AND RETAIN OR HAVE RETURNED, AS THE CASE MAY BE, ANY PORTION OF THIS NOTE
THAT HAS NOT BEEN CONVERTED PURSUANT TO THE HOLDER'S CONVERSION NOTICE; PROVIDED
THAT THE VOIDING OF THE HOLDER'S CONVERSION NOTICE SHALL NOT AFFECT THE
COMPANY'S OBLIGATIONS TO MAKE ANY PAYMENTS THAT HAVE ACCRUED