CONVERSION SHARES OR UNTIL THE
PREFERRED STOCK HAS BEEN FULLY SATISFIED.
EACH DATE ON WHICH A NOTICE OF
CONVERSION IS TELECOPIED OR DELIVERED TO THE COMPANY IN ACCORDANCE WITH THE
PROVISIONS HEREOF SHALL BE DEEMED A "CONVERSION DATE."
THE COMPANY WILL CAUSE
THE TRANSFER AGENT TO TRANSMIT THE CONVERSION SHARES (AND A CERTIFICATE
REPRESENTING THE BALANCE OF THE PREFERRED STOCK NOT SO CONVERTED, IF REQUESTED
BY PURCHASER) TO THE PURCHASER BY CREDITING THE ACCOUNT OF THE PURCHASER'S PRIME
BROKER WITH THE DEPOSITORY TRUST COMPANY ("DTC") THROUGH ITS DEPOSIT WITHDRAWAL
AGENT COMMISSION ("DWAC") SYSTEM WITHIN THREE (3) BUSINESS DAYS AFTER RECEIPT BY
THE COMPANY OF THE NOTICE OF CONVERSION (THE "DELIVERY DATE").
(C)
THE COMPANY UNDERSTANDS THAT A DELAY IN THE DELIVERY OF THE
CONVERSION SHARES IN THE FORM REQUIRED PURSUANT TO SECTION 8 HEREOF BEYOND THE
DELIVERY DATE COULD RESULT IN ECONOMIC LOSS TO THE PURCHASER.
IN THE EVENT THAT
THE COMPANY FAILS TO DIRECT ITS
20
TRANSFER AGENT TO DELIVER THE CONVERSION SHARES TO THE PURCHASER VIA THE DWAC
SYSTEM WITHIN THE TIME FRAME SET FORTH IN SECTION 8.1(B) ABOVE AND THE
CONVERSION SHARES ARE NOT DELIVERED TO THE PURCHASER BY THE DELIVERY DATE
THROUGH ANY ACT OR FAILURE TO ACT ON THE PART OF THE COMPANY, AS COMPENSATION TO
THE PURCHASER FOR SUCH LOSS, THE COMPANY AGREES TO PAY LATE PAYMENTS TO THE
PURCHASER FOR LATE ISSUANCE OF THE CONVERSION SHARES IN THE FORM REQUIRED
PURSUANT TO SECTION 8 HEREOF UPON CONVERSION OF THE PREFERRED STOCK IN THE
AMOUNT EQUAL TO THE GREATER OF (I) $500 PER BUSINESS DAY AFTER THE DELIVERY DATE
OR (II) THE PURCHASER'S ACTUAL DAMAGES FROM SUCH DELAYED DELIVERY. THE COMPANY
SHALL PAY ANY PAYMENTS INCURRED UNDER THIS SECTION IN IMMEDIATELY AVAILABLE
FUNDS UPON DEMAND AND, IN THE CASE OF ACTUAL DAMAGES, ACCOMPANIED BY REASONABLE
DOCUMENTATION OF THE AMOUNT OF SUCH DAMAGES.
SUCH DOCUMENTATION SHALL SHOW THE
NUMBER OF SHARES OF COMMON STOCK THE PURCHASER IS FORCED TO PURCHASE (IN AN OPEN
MARKET TRANSACTION) WHICH THE PURCHASER ANTICIPATED RECEIVING UPON SUCH
CONVERSION, AND SHALL BE CALCULATED AS THE AMOUNT BY WHICH (A) THE PURCHASER'S
TOTAL PURCHASE PRICE (INCLUDING CUSTOMARY BROKERAGE COMMISSIONS, IF ANY) FOR THE
SHARES OF COMMON STOCK SO PURCHASED EXCEEDS (B) THE AGGREGATE STATED VALUE (AS
DEFINED IN THE CERTIFICATE OF VOTE OF DIRECTORS) AND/OR DIVIDEND AMOUNT OF THE
PREFERRED STOCK, FOR WHICH SUCH CONVERSION NOTICE WAS NOT TIMELY HONORED.
(D)
NOTHING CONTAINED HEREIN OR IN ANY DOCUMENT REFERRED TO HEREIN OR
DELIVERED IN CONNECTION HEREWITH SHALL BE DEEMED TO ESTABLISH OR REQUIRE THE
PAYMENT OF A RATE OF INTEREST OR OTHER CHARGES IN EXCESS OF THE MAXIMUM
PERMITTED BY APPLICABLE LAW.
IN THE EVENT THAT THE RATE OF INTEREST OR
DIVIDENDS REQUIRED TO BE PAID OR OTHER CHARGES HEREUNDER EXCEED THE MAXIMUM
AMOUNT PERMITTED BY SUCH LAW, ANY PAYMENTS IN EXCESS OF SUCH MAXIMUM SHALL BE
CREDITED AGAINST AMOUNTS OWED BY THE COMPANY TO A PURCHASER AND THUS REFUNDED TO
THE COMPANY.
8.2
MAXIMUM CONVERSION.
NOTWITHSTANDING ANYTHING CONTAINED IN THE