THIS SECTION 6.10(C), IT WILL, NO LATER THAN SEVEN
TRADING DAYS FOLLOWING THE DELIVERY BY THE INVESTOR TO THE COMPANY OR THE
TRANSFER AGENT OF A CERTIFICATE REPRESENTING CONVERSION SHARES, AS APPLICABLE,
ISSUED WITH A RESTRICTIVE LEGEND (SUCH THIRD TRADING DAY, THE "LEGEND REMOVAL
DATE"), DELIVER OR CAUSE TO BE DELIVERED TO THE INVESTOR A CERTIFICATE
REPRESENTING SUCH SHARES THAT IS FREE FROM ALL RESTRICTIVE AND OTHER LEGENDS.
THE COMPANY MAY NOT MAKE ANY NOTATION ON ITS RECORDS OR GIVE INSTRUCTIONS TO THE
TRANSFER AGENT THAT ENLARGE THE RESTRICTIONS ON TRANSFER SET FORTH IN THIS
SECTION 6.10.
CERTIFICATES FOR CONVERSION SHARES SUBJECT TO LEGEND REMOVAL
HEREUNDER SHALL BE TRANSMITTED BY THE TRANSFER AGENT TO THE INVESTOR BY
CREDITING THE ACCOUNT OF THE INVESTOR'S PRIME BROKER WITH THE DEPOSITORY TRUST
COMPANY SYSTEM.
(D)
IN ADDITION TO THE INVESTOR'S OTHER AVAILABLE REMEDIES, THE COMPANY SHALL
PAY TO THE INVESTOR, IN CASH, AS LIQUIDATED DAMAGES AND NOT AS A PENALTY, FOR
EACH $100 OF CONVERSION SHARES (BASED ON THE VWAP OF THE COMMON STOCK ON THE
DATE SUCH CONVERSION SHARES ARE SUBMITTED TO THE TRANSFER AGENT) DELIVERED FOR
REMOVAL OF THE RESTRICTIVE LEGEND AND SUBJECT TO SECTION 6.10(C), $10 PER
TRADING DAY (INCREASING TO $20 PER TRADING DAY 5 TRADING DAYS AFTER SUCH DAMAGES
HAVE BEGUN TO ACCRUE) FOR EACH TRADING DAY AFTER THE SECOND TRADING DAY
FOLLOWING THE LEGEND REMOVAL DATE UNTIL
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SUCH CERTIFICATE IS DELIVERED WITHOUT A LEGEND.
NOTHING HEREIN SHALL LIMIT THE
INVESTOR'S RIGHT TO PURSUE ACTUAL DAMAGES FOR THE COMPANY'S FAILURE TO DELIVER
CERTIFICATES REPRESENTING ANY CONVERSION SHARES AS REQUIRED BY THE TRANSACTION
DOCUMENTS, AND THE INVESTOR SHALL HAVE THE RIGHT TO PURSUE ALL REMEDIES
AVAILABLE TO IT AT LAW OR IN EQUITY INCLUDING, WITHOUT LIMITATION, A DECREE OF
SPECIFIC PERFORMANCE AND/OR INJUNCTIVE RELIEF.
(E)
THE INVESTOR AGREES THAT THE REMOVAL OF THE RESTRICTIVE LEGEND FROM
CERTIFICATES REPRESENTING CONVERSION SHARES AS SET FORTH IN THIS SECTION 6.10 IS
PREDICATED UPON THE COMPANY'S RELIANCE THAT THE INVESTOR WILL SELL ANY
CONVERSION SHARES PURSUANT TO EITHER THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, INCLUDING ANY APPLICABLE PROSPECTUS DELIVERY REQUIREMENTS, OR AN
EXEMPTION THEREFROM, AND THAT IF CONVERSION SHARES ARE SOLD PURSUANT TO A
REGISTRATION STATEMENT, THEY WILL BE SOLD IN COMPLIANCE WITH THE PLAN OF
DISTRIBUTION SET FORTH THEREIN.
SECTION 6.11
SECURITIES LAW DISCLOSURE; PUBLICITY.
THE COMPANY SHALL, BY
12:00 P.M. (NEW YORK CITY TIME) ON THE FOURTH TRADING DAY FOLLOWING THE DATE
HEREOF (OR SUCH SHORTER TIME PERIOD AS SHALL BE REQUIRED BY FORM 8-K OR
OTHERWISE AGREED TO BY THE PARTIES), ISSUE A CURRENT REPORT ON FORM 8-K
DISCLOSING THE MATERIAL TERMS OF THE TRANSACTIONS CONTEMPLATED HEREBY AND
ATTACHING THE TRANSACTION DOCUMENTS AS EXHIBITS THERETO.
THE COMPANY AND THE
INVESTOR SHALL CONSULT WITH EACH OTHER IN ISSUING ANY OTHER PRESS RELEASES WITH
RESPECT TO THE TRANSACTIONS CONTEMPLATED HEREBY, AND NEITHER THE COMPANY NOR THE
INVESTOR SHALL ISSUE ANY SUCH PRESS RELEASE OR OTHERWISE MAKE ANY SUCH PUBLIC
STATEMENT WITHOUT THE PRIOR CONSENT OF THE COMPANY, WITH RESPECT