WHICH THE BORROWER IS AUTHORIZED
TO ISSUE SO AS TO PROVIDE ENOUGH SHARES FOR ISSUANCE OF THE UNDERLYING SHARES.
IN CONNECTION THEREWITH, THE BOARD OF DIRECTORS SHALL (A) ADOPT PROPER
RESOLUTIONS AUTHORIZING SUCH INCREASE, (B) RECOMMEND TO AND OTHERWISE USE ITS
BEST EFFORTS TO PROMPTLY AND DULY OBTAIN STOCKHOLDER APPROVAL TO CARRY OUT SUCH
RESOLUTIONS (AND HOLD A SPECIAL MEETING OF THE STOCKHOLDERS AS SOON AS
PRACTICABLE, BUT IN ANY EVENT NOT LATER THAN THE 60TH DAY AFTER DELIVERY OF THE
PROXY OR OTHER APPLICABLE MATERIALS RELATING TO SUCH MEETING) AND (C) WITHIN
FIVE BUSINESS DAYS OF OBTAINING SUCH STOCKHOLDER AUTHORIZATION, FILE AN
APPROPRIATE AMENDMENT TO THE BORROWER'S CERTIFICATE OF INCORPORATION OR OTHER
ORGANIZATIONAL DOCUMENT TO EVIDENCE SUCH INCREASE.
4.7.
CONVERSION AND EXERCISE PROCEDURES.
THE FORM
OF EXERCISE NOTICE INCLUDED IN THE WARRANTS AND THE FORM OF CONVERSION NOTICE
INCLUDED IN THE DEBENTURES SET FORTH THE TOTALITY OF THE PROCEDURES REQUIRED BY
THE LENDER IN ORDER TO EXERCISE THE WARRANTS OR CONVERT THE DEBENTURES. NO
ADDITIONAL LEGAL OPINION OR OTHER INFORMATION OR INSTRUCTIONS SHALL BE NECESSARY
TO ENABLE THE LENDER TO EXERCISE ITS WARRANTS OR CONVERT THEIR DEBENTURE. THE
BORROWER SHALL HONOR EXERCISE OF THE WARRANT AND CONVERSION OF THE DEBENTURE AND
SHALL DELIVER UNDERLYING SHARES IN ACCORDANCE WITH THE TERMS, CONDITIONS AND
TIME PERIODS SET FORTH IN THE TRANSACTION DOCUMENTS.
4.8.
SUBSEQUENT REGISTRATIONS; SUBSEQUENT
PLACEMENTS.
18
(A)
FROM THE CLOSING DATE THROUGH AND INCLUDING
THE EFFECTIVE DATE OF THE REGISTRATION STATEMENT COVERING THE RESALE OF THE
UNDERLYING SHARES ISSUABLE UPON CONVERSION AND EXERCISE (AS APPLICABLE) OF THE
SECURITIES ISSUED ON THE CLOSING DATE OR IF THERE'S AN ADDITIONAL CLOSING, THE
SECURITIES ISSUED ON THE ADDITIONAL CLOSING DATE, THE BORROWER WILL NOT FILE A
REGISTRATION STATEMENT (OTHER THAN: (I) ON A FORM S-8, (II) PURSUANT TO THE
REGISTRATION RIGHTS AGREEMENT, (III) FOR THE RESALE OF THE SECURITIES TO BE
ISSUED TO THE BORROWER'S LANDLORD IN CONNECTION WITH THE RESTRUCTURING OF ITS
LEASE, AND (IV) PURSUANT TO THE EXERCISE OF EXISTING REGISTRATION RIGHTS BY
CERTAIN STOCKHOLDERS OF THE BORROWER) WITH THE COMMISSION WITH RESPECT TO ANY
SECURITIES OF THE BORROWER.
(B)
PRIOR TO THE THIRD YEAR ANNIVERSARY OF THE
CLOSING DATE, IN THE EVENT THE BORROWER, DIRECTLY OR INDIRECTLY, OFFERS, SELLS,
GRANTS ANY OPTION TO PURCHASE, OR OTHERWISE DISPOSES OF (OR ANNOUNCES ANY OFFER,
SALE, GRANT OR ANY OPTION TO PURCHASE OR OTHER DISPOSITION OF
ANY OF COMMON
STOCK OR COMMON STOCK EQUIVALENTS OR ANY OF ITS SUBSIDIARIES' EQUITY OR COMMON
STOCK EQUIVALENTS, INCLUDING WITHOUT LIMITATION, PURSUANT TO A PRIVATE
PLACEMENT, AN EQUITY LINE OF CREDIT OR A SHELF REGISTRATION STATEMENT IN
ACCORDANCE WITH RULE 415 UNDER THE SECURITIES ACT, (SUCH OFFER, SALE, GRANT,
DISPOSITION OR ANNOUNCEMENT BEING REFERRED TO AS "SUBSEQUENT PLACEMENT"), THE
BORROWER SHALL DELIVER TO THE LENDER A WRITTEN NOTICE (THE "SUBSEQUENT PLACEMENT
NOTICE") OF ITS INTENTION TO EFFECT SUCH SUBSEQUENT PLACEMENT, WHICH SPECIFIES
IN REASONABLE DETAIL ALL OF THE MATERIAL TERMS OF SUCH SUBSEQUENT PLACEMENT, THE
AMOUNT OF PROCEEDS INTENDED TO BE RAISED THEREUNDER, THE NAMES