HAVE AUTHORIZED, AND RESERVED FOR THE
PURPOSE OF ISSUANCE, AFTER THE CLOSING DATE, 150% OF THE NUMBER OF INTEREST
SHARES ISSUABLE PURSUANT TO THE TERMS OF THE NOTES, SHARES OF COMMON STOCK
ISSUABLE UPON CONVERSION OF ALL OF THE NOTES (INCLUDING THE ADDITIONAL NOTES)
AND SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THE WARRANTS.
(N)
CONDUCT OF BUSINESS.
THE BUSINESS OF THE
COMPANY AND ITS SUBSIDIARIES SHALL NOT BE CONDUCTED IN VIOLATION OF ANY LAW,
ORDINANCE OR REGULATION OF ANY GOVERNMENTAL ENTITY, EXCEPT WHERE SUCH VIOLATIONS
WOULD NOT RESULT, EITHER INDIVIDUALLY OR IN THE AGGREGATE, IN A MATERIAL ADVERSE
EFFECT.
(O)
ADDITIONAL ISSUANCES OF SECURITIES.
(I)
FOR PURPOSES OF THIS SECTION 4(O), THE
FOLLOWING DEFINITIONS SHALL APPLY.
(1)
"CONVERTIBLE SECURITIES" MEANS ANY STOCK OR
SECURITIES (OTHER THAN OPTIONS) CONVERTIBLE INTO OR EXERCISABLE OR EXCHANGEABLE
FOR SHARES OF COMMON STOCK.
(2)
"OPTIONS" MEANS ANY RIGHTS, WARRANTS OR
OPTIONS TO SUBSCRIBE FOR OR PURCHASE SHARES OF COMMON STOCK OR CONVERTIBLE
SECURITIES.
(3)
"COMMON STOCK EQUIVALENTS" MEANS,
COLLECTIVELY, OPTIONS AND CONVERTIBLE SECURITIES.
(II)
FROM THE DATE HEREOF UNTIL THE DATE THAT
IS 90 TRADING DAYS (AS DEFINED IN THE NOTES) FOLLOWING THE EFFECTIVE DATE (AS
DEFINED IN THE REGISTRATION RIGHTS AGREEMENT) (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 TRIGGER DATE UNTIL THE DATE THAT
THE BUYERS NO LONGER HOLD ANY NOTES OR ADDITIONAL INVESTMENT RIGHTS, THE COMPANY
WILL NOT, DIRECTLY OR INDIRECTLY, EFFECT ANY SUBSEQUENT PLACEMENT UNLESS THE
COMPANY SHALL HAVE FIRST COMPLIED WITH THIS SECTION 4(O)(III).
20
(1)
THE COMPANY SHALL DELIVER TO EACH BUYER A
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 A PRO RATA PORTION OF 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