APPLICABLE SUCH
COMPANY CONVERSION MEASURING PERIOD.]
(L)
"CONVERTIBLE SECURITIES" MEANS ANY STOCK OR SECURITIES (OTHER
THAN OPTIONS) DIRECTLY OR INDIRECTLY CONVERTIBLE INTO OR EXERCISABLE OR
EXCHANGEABLE FOR COMMON STOCK.
(M)
"ELIGIBLE MARKET" MEANS THE PRINCIPAL MARKET, THE NEW YORK STOCK
EXCHANGE, INC., THE AMERICAN STOCK EXCHANGE OR THE NASDAQ SMALLCAP MARKET.
(N)
"EQUITY CONDITIONS" MEANS EACH OF THE FOLLOWING CONDITIONS:
(I)
ON EACH DAY DURING THE PERIOD BEGINNING ONE (1) MONTH PRIOR TO THE APPLICABLE
DATE OF DETERMINATION AND ENDING ON AND INCLUDING THE APPLICABLE DATE OF
DETERMINATION, EITHER (X) THE REGISTRATION STATEMENT FILED PURSUANT TO THE
REGISTRATION RIGHTS AGREEMENT SHALL BE EFFECTIVE AND AVAILABLE FOR THE RESALE OF
ALL REMAINING REGISTRABLE SECURITIES IN ACCORDANCE WITH THE TERMS OF THE
REGISTRATION RIGHTS AGREEMENT AND THERE SHALL NOT HAVE BEEN ANY GRACE PERIODS
(AS DEFINED IN THE REGISTRATION RIGHTS AGREEMENT) OR (Y) ALL SHARES OF COMMON
STOCK ISSUABLE UPON CONVERSION OF THE NOTES AND EXERCISE OF THE WARRANTS SHALL
BE ELIGIBLE FOR SALE WITHOUT RESTRICTION AND WITHOUT THE NEED FOR REGISTRATION
UNDER ANY APPLICABLE FEDERAL OR STATE SECURITIES LAWS; (II) ON EACH DAY DURING
THE PERIOD BEGINNING THREE (3) MONTHS PRIOR TO THE APPLICABLE DATE OF
DETERMINATION AND
27
ENDING ON AND INCLUDING THE APPLICABLE DATE OF DETERMINATION (THE "EQUITY
CONDITIONS MEASURING PERIOD"), THE COMMON STOCK IS DESIGNATED FOR QUOTATION ON
THE PRINCIPAL MARKET AND SHALL NOT HAVE BEEN SUSPENDED FROM TRADING ON SUCH
EXCHANGE OR MARKET (OTHER THAN SUSPENSIONS OF NOT MORE THAN TWO (2) DAYS AND
OCCURRING PRIOR TO THE APPLICABLE DATE OF DETERMINATION DUE TO BUSINESS
ANNOUNCEMENTS BY THE COMPANY) NOR SHALL DELISTING OR SUSPENSION BY SUCH EXCHANGE
OR MARKET BEEN THREATENED OR PENDING EITHER (A) IN WRITING BY SUCH EXCHANGE OR
MARKET OR (B) BY FALLING BELOW THE THEN EFFECTIVE MINIMUM LISTING MAINTENANCE
REQUIREMENTS OF SUCH EXCHANGE OR MARKET; (III) DURING THE ONE (1) YEAR PERIOD
ENDING ON AND INCLUDING THE DATE IMMEDIATELY PRECEDING THE APPLICABLE DATE OF
DETERMINATION, THE COMPANY SHALL HAVE DELIVERED CONVERSION SHARES UPON
CONVERSION OF THE NOTES AND WARRANT SHARES UPON EXERCISE OF THE WARRANTS TO THE
HOLDERS ON A TIMELY BASIS AS SET FORTH IN SECTION 2(C)(II) HEREOF (AND ANALOGOUS
PROVISIONS UNDER THE OTHER NOTES) AND SECTIONS 2(A) OF THE WARRANTS AND NOTES
UPON EXERCISE OF THE ADDITIONAL INVESTMENT RIGHTS; (IV) DURING THE EQUITY
CONDITIONS MEASURING PERIOD, ANY APPLICABLE SHARES OF COMMON STOCK TO BE ISSUED
IN CONNECTION WITH THE EVENT REQUIRING DETERMINATION MAY BE ISSUED IN FULL
WITHOUT VIOLATING SECTION 3(D) HEREOF AND THE RULES OR REGULATIONS OF THE
PRINCIPAL MARKET; (V) DURING THE EQUITY CONDITIONS MEASURING PERIOD, THE COMPANY
SHALL NOT HAVE FAILED TO TIMELY MAKE ANY PAYMENTS WITHIN FIVE (5) BUSINESS DAYS
OF WHEN SUCH PAYMENT IS DUE PURSUANT TO ANY TRANSACTION DOCUMENT; (VI) DURING
THE EQUITY CONDITIONS MEASURING PERIOD, THERE SHALL NOT HAVE OCCURRED EITHER (A)
THE PUBLIC ANNOUNCEMENT OF A PENDING, PROPOSED OR INTENDED FUNDAMENTAL
TRANSACTION WHICH HAS NOT BEEN ABANDONED, TERMINATED OR CONSUMMATED, OR (B) AN
EVENT OF DEFAULT OR (VII) DURING THE PERIOD COMMENCING