IN
ACCORDANCE WITH SECTION 4(B) ABOVE.
THE DATE ON WHICH THE CALL AMOUNT IS
EXERCISED IS REFERRED TO HEREIN AS THE "FORCED EXERCISE DATE".
ANY UNEXERCISED
PORTION OF THIS WARRANT TO WHICH THE CALL NOTICE DOES NOT PERTAIN (THE
"REMAINING PORTION") WILL BE UNAFFECTED BY SUCH CALL NOTICE.
THE COMPANY
COVENANTS AND AGREES THAT IT WILL HONOR ANY EXERCISE NOTICE WITH RESPECT TO THE
CALL AMOUNT THAT ARE TENDERED FROM THE CALL DATE THROUGH AND INCLUDING 6:30 P.M.
(NEW YORK CITY TIME) ON THE FORCED EXERCISE DATE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS WARRANT, THE COMPANY
MAY NOT REQUIRE THE CANCELLATION OF ANY UNEXERCISED CALL AMOUNT (AND ANY CALL
NOTICE WILL BE VOID), UNLESS FROM THE BEGINNING OF THE 20 CONSECUTIVE TRADING
DAYS USED TO DETERMINE WHETHER THE COMMON STOCK HAS ACHIEVED THE THRESHOLD PRICE
THROUGH THE FORCED EXERCISE DATE (THE "CALL PERIOD") (I) THE CLOSING PRICES FOR
EACH TRADING DAY DURING SUCH CALL PERIOD EXCEEDS THE THRESHOLD PRICE, (II) THE
COMPANY SHALL HAVE HONORED IN ACCORDANCE WITH THE TERMS OF THIS WARRANT ANY
EXERCISE NOTICE DELIVERED BY 6:30 P.M. (NEW YORK CITY TIME) ON THE FORCED
EXERCISE DATE, (III) THE EQUITY CONDITIONS (AS DEFINED IN THE NOTES) ARE
SATISFIED (OR WAIVED IN WRITING BY THE APPLICABLE HOLDER) ON EACH TRADING DAY
WITH RESPECT TO ALL UNDERLYING SHARES ISSUABLE UPON EXERCISE OF THE CALL AMOUNT,
AND (IV) THE AVERAGE DAILY TRADING VOLUME AS REPORTED ON BLOOMBERG, L.P. DURING
SUCH CALL PERIOD (DETERMINED BY CALCULATING THE ARITHMETIC AVERAGE OF THE DAILY
TRADING VOLUME FOR EACH TRADING DAY IN SUCH CALL PERIOD) IS GREATER THAN 100,000
SHARES.
(C)
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, (I) IN CONNECTION
WITH THE COMPANY'S EXERCISE OF A CALL RIGHT, THE THRESHOLD PERCENTAGE LIMITATION
ON EXERCISE SET FORTH IN
10
SECTION 11 SHALL NOT APPLY AND (II) IF AFTER THE CALL RIGHT IS EXERCISED, THE
STATED EXPIRATION DATE OF THIS WARRANT WOULD OCCUR PRIOR TO THE FORCED EXERCISE
DATE, THE "EXPIRATION DATE" HEREOF SHALL BE EXTENDED TO END OF THE FORCED
EXERCISE DATE SOLELY TO THE EXTENT NECESSARY TO ENABLE THIS WARRANT TO BE
EXERCISED FOR THE CALL AMOUNT ON THE FORCED EXERCISE DATE.
16.
MISCELLANEOUS.
(A)
SUBJECT TO THE RESTRICTIONS ON TRANSFER SET FORTH ON THE FIRST
PAGE HEREOF, THIS WARRANT MAY BE ASSIGNED BY THE HOLDER. THIS WARRANT MAY NOT BE
ASSIGNED BY THE COMPANY EXCEPT TO A SUCCESSOR IN THE EVENT OF A FUNDAMENTAL
TRANSACTION. THIS WARRANT SHALL BE BINDING ON AND INURE TO THE BENEFIT OF THE
PARTIES HERETO AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
SUBJECT TO THE
PRECEDING SENTENCE, NOTHING IN THIS WARRANT SHALL BE CONSTRUED TO GIVE TO ANY
PERSON OTHER THAN THE COMPANY AND THE HOLDER ANY LEGAL OR EQUITABLE RIGHT,
REMEDY OR CAUSE OF ACTION UNDER THIS WARRANT.
THIS WARRANT MAY BE AMENDED ONLY
IN WRITING SIGNED BY THE COMPANY AND THE HOLDER AND THEIR SUCCESSORS AND
ASSIGNS.
(B)
THE COMPANY WILL NOT, BY AMENDMENT OF ITS GOVERNING DOCUMENTS OR
THROUGH ANY REORGANIZATION, TRANSFER OF