PURCHASE SHARES OF COMMON STOCK OR CONVERTIBLE
SECURITIES.
(4)
"COMMON STOCK EQUIVALENTS" MEANS,
COLLECTIVELY, OPTIONS AND CONVERTIBLE SECURITIES.
23
(II)
FROM THE DATE HEREOF UNTIL THE LATER OF
(X) NINETY (90) CALENDAR DAYS AFTER THE DATE HEREOF AND (Y) THE DATE THAT IS
THIRTY (30) TRADING DAYS (AS DEFINED IN THE NOTES) FOLLOWING THE INITIAL
EFFECTIVE DATE (AS DEFINED IN THE REGISTRATION RIGHTS AGREEMENT) (THE "TRIGGER
DATE"), THE COMPANY WILL NOT, DIRECTLY OR INDIRECTLY, FILE ANY REGISTRATION
STATEMENT WITH THE SEC OTHER THAN THE REGISTRATION STATEMENT (AS DEFINED IN THE
REGISTRATION RIGHTS AGREEMENT).
FROM THE DATE HEREOF UNTIL THE TRIGGER DATE,
THE COMPANY WILL NOT, DIRECTLY OR INDIRECTLY, OFFER, SELL, GRANT ANY OPTION TO
PURCHASE, OR OTHERWISE DISPOSE OF (OR ANNOUNCE ANY OFFER, SALE, GRANT OR ANY
OPTION TO PURCHASE OR OTHER DISPOSITION OF) ANY OF ITS OR ITS SUBSIDIARIES'
EQUITY OR EQUITY EQUIVALENT SECURITIES, INCLUDING WITHOUT LIMITATION ANY DEBT,
PREFERRED STOCK OR OTHER INSTRUMENT OR SECURITY THAT IS, AT ANY TIME DURING ITS
LIFE AND UNDER ANY CIRCUMSTANCES, CONVERTIBLE INTO OR EXCHANGEABLE OR
EXERCISABLE FOR SHARES OF COMMON STOCK OR COMMON STOCK EQUIVALENTS (ANY SUCH
OFFER, SALE, GRANT, DISPOSITION OR ANNOUNCEMENT BEING REFERRED TO AS A
"SUBSEQUENT PLACEMENT").
(III)
FROM THE DATE HEREOF UNTIL THE SECOND
ANNIVERSARY OF THE CLOSING DATE, THE COMPANY WILL NOT, DIRECTLY OR INDIRECTLY,
EFFECT ANY SUBSEQUENT PLACEMENT UNLESS THE COMPANY COMPLIES WITH THIS
SECTION 4(O)(III).
THE COMPANY MAY ENTER INTO A SUBSEQUENT PLACEMENT AGREEMENT
(AS DEFINED BELOW) AND CLOSE A SUBSEQUENT PLACEMENT PRIOR TO COMPLYING WITH THIS
SECTION 4(O)(III) SO LONG AS THE COMPANY PUBLICLY ANNOUNCES ENTERING INTO ANY
SUCH SUBSEQUENT PLACEMENT AGREEMENT IN A MANNER COMPLIANT WITH REGULATION FD AND
DELIVERS THE OFFER NOTICE (AS DEFINED BELOW) TO EACH BUYER WITHIN ONE BUSINESS
DAY THEREAFTER.
(2)
THE COMPANY SHALL DELIVER TO EACH BUYER AN
IRREVOCABLE
WRITTEN NOTICE (THE "OFFER NOTICE") OF ANY PROPOSED OR INTENDED
ISSUANCE OR SALE OR EXCHANGE (THE "OFFER") OF THE SECURITIES BEING OFFERED (THE
"OFFERED SECURITIES") IN A SUBSEQUENT PLACEMENT, WHICH OFFER NOTICE SHALL
(W) IDENTIFY AND DESCRIBE THE OFFERED SECURITIES, (X) DESCRIBE THE PRICE AND
OTHER TERMS UPON WHICH THEY ARE TO BE ISSUED, SOLD OR EXCHANGED, AND THE NUMBER
OR AMOUNT OF THE OFFERED SECURITIES TO BE ISSUED, SOLD OR EXCHANGED,
(Y) IDENTIFY THE PERSONS OR ENTITIES (IF KNOWN) TO WHICH OR WITH WHICH THE
OFFERED SECURITIES ARE TO BE OFFERED, ISSUED, SOLD OR EXCHANGED AND (Z) OFFER TO
ISSUE AND SELL TO OR EXCHANGE WITH SUCH BUYERS AT LEAST THIRTY PERCENT (30%) OF
THE OFFERED SECURITIES, ALLOCATED AMONG SUCH BUYERS (A) BASED ON SUCH BUYER'S
PRO RATA PORTION OF THE AGGREGATE PRINCIPAL AMOUNT OF NOTES PURCHASED HEREUNDER
(THE "BASIC AMOUNT"), AND (B) WITH RESPECT TO EACH BUYER THAT ELECTS TO PURCHASE
ITS BASIC AMOUNT, ANY ADDITIONAL PORTION OF THE OFFERED SECURITIES ATTRIBUTABLE
TO THE BASIC AMOUNTS OF OTHER BUYERS AS SUCH BUYER SHALL INDICATE IT WILL
PURCHASE OR ACQUIRE SHOULD THE OTHER BUYERS SUBSCRIBE FOR LESS THAN THEIR BASIC
AMOUNTS (THE "UNDERSUBSCRIPTION AMOUNT"), WHICH PROCESS