YORK STOCK EXCHANGE, (C) THE NASDAQ GLOBAL
MARKET, (D) THE NASDAQ
CAPITAL MARKET, OR (E) THE NASDAQ OTC BULLETIN BOARD ("OTCBB")
(XIII)
"SECURITIES ACT" MEANS THE SECURITIES ACT OF 1933, AS AMENDED.
(XIV)
"VWAP" MEANS THE VOLUME WEIGHTED AVERAGE PRICE PER SHARE OF THE
COMPANY'S COMMON STOCK ON THE NASDAQ CAPITAL MARKET OR OTHER SUBSEQUENT MARKET,
AS QUOTED BY BLOOMBERG, LP.
(XV)
"WARRANT" MEANS THIS WARRANT AND ALL WARRANTS ISSUED IN EXCHANGE,
TRANSFER OR REPLACEMENT THEREOF.
(XVI)
"WARRANT EXERCISE PRICE" SHALL BE $5.00 OR AS SUBSEQUENTLY ADJUSTED
AS PROVIDED IN SECTION 8 HEREOF.
(C)
OTHER DEFINITIONAL PROVISIONS.
(I)
EXCEPT AS OTHERWISE SPECIFIED HEREIN, ALL REFERENCES HEREIN (A) TO
THE COMPANY SHALL BE DEEMED TO INCLUDE THE COMPANY'S SUCCESSORS AND (B) TO ANY
APPLICABLE LAW DEFINED OR REFERRED TO HEREIN SHALL BE DEEMED REFERENCES TO SUCH
APPLICABLE LAW AS THE SAME MAY HAVE BEEN OR MAY BE AMENDED OR SUPPLEMENTED FROM
TIME TO TIME.
(II)
WHEN USED IN THIS WARRANT, THE WORDS "HEREIN", "HEREOF", AND
"HEREUNDER" AND WORDS OF SIMILAR IMPORT, SHALL REFER TO THIS WARRANT AS A WHOLE
AND NOT TO ANY PROVISION OF THIS WARRANT, AND THE WORDS "SECTION", "SCHEDULE",
AND "EXHIBIT" SHALL REFER TO SECTIONS OF, AND SCHEDULES AND EXHIBITS TO, THIS
WARRANT UNLESS OTHERWISE SPECIFIED.
(III)
WHENEVER THE CONTEXT SO REQUIRES, THE NEUTER GENDER INCLUDES THE
MASCULINE OR FEMININE, AND THE SINGULAR NUMBER INCLUDES THE PLURAL, AND VICE
VERSA.
SECTION 2.
EXERCISE OF WARRANT.
(A)
SUBJECT TO THE TERMS AND CONDITIONS HEREOF, THIS WARRANT MAY BE EXERCISED
BY THE HOLDER HEREOF THEN REGISTERED ON THE BOOKS OF THE COMPANY, PRO RATA AS
HEREINAFTER PROVIDED, AT ANY TIME ON ANY BUSINESS DAY ON OR AFTER THE OPENING OF
BUSINESS ON SUCH BUSINESS DAY, COMMENCING WITH THE FIRST DAY AFTER THE DATE
HEREOF, AND PRIOR TO 11:59 P.M. EASTERN TIME ON THE EXPIRATION DATE (I) BY
DELIVERY OF A WRITTEN NOTICE, IN THE FORM OF THE SUBSCRIPTION NOTICE ATTACHED
4
AS EXHIBIT A HERETO (THE "EXERCISE NOTICE"), OF SUCH HOLDER'S ELECTION TO
EXERCISE THIS WARRANT, WHICH NOTICE SHALL SPECIFY THE NUMBER OF WARRANT SHARES
TO BE PURCHASED, PAYMENT TO THE COMPANY OF AN AMOUNT EQUAL TO THE WARRANT
EXERCISE PRICE(S) APPLICABLE TO THE WARRANT SHARES BEING PURCHASED, MULTIPLIED
BY THE NUMBER OF WARRANT SHARES (AT THE APPLICABLE WARRANT EXERCISE PRICE) AS TO
WHICH THIS WARRANT IS BEING EXERCISED (PLUS ANY APPLICABLE ISSUE OR TRANSFER
TAXES) (THE "AGGREGATE EXERCISE PRICE") IN CASH OR WIRE TRANSFER OF IMMEDIATELY
AVAILABLE FUNDS AND THE SURRENDER OF THIS WARRANT (OR AN INDEMNIFICATION
UNDERTAKING WITH RESPECT TO THIS WARRANT IN THE CASE OF ITS LOSS, THEFT OR
DESTRUCTION) TO A COMMON CARRIER FOR OVERNIGHT DELIVERY TO THE COMPANY AS SOON
AS PRACTICABLE FOLLOWING SUCH DATE ("CASH BASIS") OR (II) IF AFTER OCTOBER 9,
2007, AT THE TIME OF EXERCISE, THE WARRANT SHARES ARE NOT SUBJECT TO AN
EFFECTIVE REGISTRATION STATEMENT OR IF AN EVENT OF DEFAULT HAS OCCURRED, BY
DELIVERING AN EXERCISE NOTICE AND IN LIEU OF MAKING PAYMENT OF THE AGGREGATE
EXERCISE PRICE