CONTEMPLATED EFFECTIVE DATE FOR THE
REGISTRATION STATEMENT AS DESCRIBED IN SECTION 1.1(B) SHALL BE EXTENDED WITHOUT
DEFAULT OR LIQUIDATED DAMAGES HEREUNDER OR UNDER THE PURCHASE AGREEMENT IN THE
EVENT THAT THE COMPANY'S FAILURE TO OBTAIN THE EFFECTIVENESS OF THE REGISTRATION
STATEMENT ON A TIMELY BASIS RESULTS FROM (I) THE FAILURE OF THE INVESTOR TO
TIMELY PROVIDE THE COMPANY WITH INFORMATION REQUESTED BY THE COMPANY AND
NECESSARY TO COMPLETE THE REGISTRATION STATEMENT IN ACCORDANCE WITH THE
REQUIREMENTS OF THE SECURITIES ACT OR (II) THE COMMISSION'S DISAPPROVAL OF THE
STRUCTURE OF THE TRANSACTIONS CONTEMPLATED BY THE PURCHASE AGREEMENT, OR
(III) EVENTS OR CIRCUMSTANCES THAT ARE NOT IN ANY WAY ATTRIBUTABLE TO THE
COMPANY.
IN THE EVENT OF CLAUSE (II) ABOVE, THE PARTIES AGREE TO COOPERATE WITH
ONE ANOTHER IN GOOD FAITH TO ARRIVE AT A RESOLUTION ACCEPTABLE TO THE
COMMISSION.
(D)
FAILURE TO MAINTAIN EFFECTIVENESS OF REGISTRATION STATEMENT.
IN THE
EVENT THE COMPANY FAILS TO MAINTAIN THE EFFECTIVENESS OF THE REGISTRATION
STATEMENT (OR THE PROSPECTUS) THROUGHOUT THE PERIOD SET FORTH IN SECTION 4.2,
OTHER THAN TEMPORARY SUSPENSIONS AS SET FORTH IN SECTION 1.1(E), AND THE
INVESTOR HOLDS ANY REGISTRABLE SECURITIES AT ANY TIME DURING THE PERIOD OF SUCH
INEFFECTIVENESS (AN "INEFFECTIVE PERIOD"), AND PROVIDED THAT SUCH FAILURE TO
MAINTAIN EFFECTIVENESS WAS WITHIN THE REASONABLE CONTROL OF THE COMPANY, THE
COMPANY SHALL PAY ON DEMAND TO THE INVESTOR IN IMMEDIATELY AVAILABLE FUNDS INTO
AN ACCOUNT DESIGNATED BY THE INVESTOR AN AMOUNT EQUAL TO THE PRODUCT OF (I) THE
TOTAL NUMBER OF REGISTRABLE SECURITIES ISSUED TO THE INVESTOR UNDER THE PURCHASE
AGREEMENT (WHICH, FOR THE AVOIDANCE OF DOUBT, SHALL NOT INCLUDE ANY WARRANT
SHARES) AND OWNED BY THE INVESTOR AT ANY TIME DURING SUCH INEFFECTIVE PERIOD
(AND NOT OTHERWISE SOLD, HYPOTHECATED OR TRANSFERRED) AND (II) THE RESULT, IF
GREATER THAN ZERO, OBTAINED BY SUBTRACTING THE VWAP ON THE TRADING DAY
IMMEDIATELY FOLLOWING THE LAST DAY OF SUCH INEFFECTIVE PERIOD FROM THE VWAP ON
THE TRADING DAY IMMEDIATELY PRECEDING THE DAY ON WHICH ANY SUCH INEFFECTIVE
PERIOD BEGAN; PROVIDED, HOWEVER, THAT (A) THE FOREGOING PAYMENTS SHALL NOT APPLY
IN RESPECT OF REGISTRABLE SECURITIES (I) THAT ARE OTHERWISE FREELY TRADABLE BY
THE INVESTOR, INCLUDING PURSUANT TO RULE 144 UNDER THE SECURITIES ACT (AS SUCH
RULE MAY BE AMENDED FROM TIME TO TIME, "RULE 144") OR (II) IF THE COMPANY OFFERS
TO REPURCHASE FROM THE INVESTOR SUCH REGISTRABLE SECURITIES FOR A PER SHARE
PURCHASE PRICE EQUAL TO THE VWAP ON THE TRADING DAY IMMEDIATELY PRECEDING THE
DAY ON WHICH ANY SUCH INEFFECTIVE PERIOD BEGAN AND (B) UNLESS OTHERWISE REQUIRED
BY ANY APPLICABLE FEDERAL AND STATE SECURITIES LAWS, THE COMPANY SHALL BE UNDER
NO OBLIGATION TO SUPPLEMENT THE PROSPECTUS TO REFLECT THE ISSUANCE OF ANY SHARES
PURSUANT TO A DRAW DOWN AT ANY TIME PRIOR TO THE FIRST TRADING DAY FOLLOWING THE
SETTLEMENT DATE WITH RESPECT TO SUCH SHARES AND THAT THE FAILURE TO SUPPLEMENT
THE PROSPECTUS PRIOR TO SUCH TIME SHALL NOT BE DEEMED A FAILURE TO MAINTAIN THE
EFFECTIVENESS OF THE REGISTRATION STATEMENT (OR PROSPECTUS) FOR