"COMMON STOCK DEEMED OUTSTANDING" MEANS, AT ANY GIVEN TIME, THE
NUMBER OF SHARES OF COMMON STOCK OUTSTANDING AT SUCH TIME, PLUS THE NUMBER OF
SHARES OF COMMON STOCK DEEMED TO BE OUTSTANDING PURSUANT TO SECTIONS 7(A)(I) AND
7(A)(II) HEREOF REGARDLESS OF WHETHER THE OPTIONS OR CONVERTIBLE SECURITIES ARE
ACTUALLY EXERCISABLE AT SUCH TIME, BUT EXCLUDING ANY COMMON STOCK OWNED OR HELD
BY OR FOR THE ACCOUNT OF THE COMPANY OR ISSUABLE UPON CONVERSION OR EXERCISE, AS
APPLICABLE, OF THE NOTES AND THE WARRANTS.
24
(J)
"CONTINGENT OBLIGATION" MEANS, AS TO ANY PERSON, ANY DIRECT OR
INDIRECT LIABILITY, CONTINGENT OR OTHERWISE, OF THAT PERSON WITH RESPECT TO ANY
INDEBTEDNESS, LEASE, DIVIDEND OR OTHER OBLIGATION OF ANOTHER PERSON IF THE
PRIMARY PURPOSE OR INTENT OF THE PERSON INCURRING SUCH LIABILITY, OR THE PRIMARY
EFFECT THEREOF, IS TO PROVIDE ASSURANCE TO THE OBLIGEE OF SUCH LIABILITY THAT
SUCH LIABILITY WILL BE PAID OR DISCHARGED, OR THAT ANY AGREEMENTS RELATING
THERETO WILL BE COMPLIED WITH, OR THAT THE HOLDERS OF SUCH LIABILITY WILL BE
PROTECTED (IN WHOLE OR IN PART) AGAINST LOSS WITH RESPECT THERETO.
(K)
"CONVERTIBLE SECURITIES" MEANS ANY STOCK OR SECURITIES (OTHER THAN
OPTIONS) DIRECTLY OR INDIRECTLY CONVERTIBLE INTO OR EXERCISABLE OR EXCHANGEABLE
FOR COMMON STOCK.
(L)
"ELIGIBLE MARKET" MEANS THE PRINCIPAL MARKET, THE NEW YORK STOCK
EXCHANGE, INC., THE AMERICAN STOCK EXCHANGE, THE NASDAQ GLOBAL SELECT MARKET OR
THE NASDAQ CAPITAL MARKET.
(M)
"EQUITY CONDITIONS" MEANS EACH OF THE FOLLOWING CONDITIONS:
(I) ON
EACH DAY DURING THE PERIOD BEGINNING THREE (3) MONTHS PRIOR TO THE APPLICABLE
DATE OF DETERMINATION AND ENDING ON AND INCLUDING THE APPLICABLE DATE OF
DETERMINATION (THE "EQUITY CONDITIONS MEASURING PERIOD"), 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) DURING THE EQUITY CONDITIONS MEASURING PERIOD THE
COMMON STOCK IS DESIGNATED FOR QUOTATION ON THE PRINCIPAL MARKET OR ANY OTHER
ELIGIBLE 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 EQUITY CONDITIONS MEASURING PERIOD,
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