(II) ON ANY DAY DURING THE PERIOD COMMENCING TEN (10) TRADING DAYS PRIOR
TO THE APPLICABLE INTEREST NOTICE DATE THROUGH THE APPLICABLE INTEREST DATE, THE
EQUITY CONDITIONS HAVE NOT BEEN SATISFIED (OR WAIVED IN WRITING BY THE HOLDER).
(P)
"EXCLUDED SECURITIES" MEANS ANY COMMON STOCK
ISSUED OR ISSUABLE: (I) IN CONNECTION WITH ANY APPROVED STOCK PLAN; (II) UPON
CONVERSION OF THE NOTES; (III) AS MAKE-WHOLE PREMIUM SHARES, (IV) IN CONNECTION
WITH ANY STOCK SPLIT, STOCK DIVIDEND, RECAPITALIZATION OR SIMILAR TRANSACTION BY
THE COMPANY FOR WHICH ADJUSTMENT IS MADE PURSUANT TO SECTION 7(B); (V) PURSUANT
TO A BONA FIDE FIRM COMMITMENT UNDERWRITTEN PUBLIC OFFERING WITH A NATIONALLY
RECOGNIZED UNDERWRITER WHICH GENERATES GROSS PROCEEDS TO THE COMPANY IN EXCESS
OF $25,000,000 (OTHER THAN AN "AT-THE-MARKET OFFERING" AS DEFINED IN
RULE 415(A)(4) UNDER THE 1933 ACT AND "EQUITY LINES"), (VI) UPON EXERCISE OF ANY
OPTIONS OR CONVERTIBLE SECURITIES WHICH ARE OUTSTANDING ON THE DAY IMMEDIATELY
PRECEDING THE SUBSCRIPTION DATE, PROVIDED THAT THE TERMS OF SUCH OPTIONS OR
CONVERTIBLE SECURITIES ARE NOT AMENDED, MODIFIED OR CHANGED ON OR AFTER THE
SUBSCRIPTION DATE IN A MANNER ADVERSE TO THE HOLDER AND (VII) IN CONNECTION WITH
MERGERS, ACQUISITIONS, STRATEGIC BUSINESS PARTNERSHIPS, JOINT VENTURES,
COLLABORATIONS OR SIMILAR TRANSACTIONS, IN EACH CASE WITH NON-AFFILIATED THIRD
PARTIES AND OTHERWISE ON AN ARM'S-LENGTH BASIS, THE PRIMARY PURPOSE OF WHICH IS
NOT TO RAISE EQUITY CAPITAL, PROVIDED THAT SUCH ISSUANCE IS MADE AT A PRICE
EQUAL TO OR GREATER THAN THE ARITHMETIC AVERAGE OF THE WEIGHTED AVERAGE PRICE OF
THE COMMON STOCK FOR THE FIVE (5) CONSECUTIVE TRADING DAYS IMMEDIATELY PRIOR TO
THE DATE OF SUCH ISSUANCE.
(Q)
"FIRPTA CAP" MEANS, WITH RESPECT TO ANY
HOLDER, THE PERCENTAGE INDICATED ON THE HOLDER'S CONVERSION NOTICE, WHICH SHALL
BE SUCH HOLDER'S REASONABLE ESTIMATE OF THE MAXIMUM NUMBER OF SHARES OF COMMON
STOCK THAT SUCH HOLDER MAY HOLD WITHOUT BEING SUBJECT TO TAX UNDER THE FOREIGN
INVESTMENT IN REAL PROPERTY TAX ACT OF 1980.
(R)
"FUNDAMENTAL TRANSACTION" MEANS THAT (I) THE
COMPANY SHALL, DIRECTLY OR INDIRECTLY, IN ONE OR MORE RELATED TRANSACTIONS,
(A) CONSOLIDATE OR MERGE WITH OR INTO (WHETHER OR NOT THE COMPANY IS THE
SURVIVING CORPORATION) ANOTHER PERSON OR PERSONS, OR (B) SELL, ASSIGN, TRANSFER,
CONVEY OR OTHERWISE DISPOSE OF ALL OR SUBSTANTIALLY ALL OF THE PROPERTIES OR
ASSETS OF THE COMPANY TO ANOTHER PERSON, OR (C) ALLOW ANOTHER PERSON TO MAKE A
PURCHASE, TENDER OR EXCHANGE OFFER THAT IS ACCEPTED BY THE HOLDERS OF MORE THAN
50% OF THE OUTSTANDING SHARES OF VOTING STOCK (NOT INCLUDING ANY SHARES OF
VOTING STOCK HELD BY THE PERSON OR PERSONS MAKING OR PARTY TO, OR ASSOCIATED OR
AFFILIATED WITH THE PERSONS MAKING OR PARTY TO, SUCH PURCHASE, TENDER OR
EXCHANGE OFFER), OR (D) CONSUMMATE A STOCK PURCHASE AGREEMENT OR OTHER BUSINESS
COMBINATION (INCLUDING, WITHOUT LIMITATION, A REORGANIZATION, RECAPITALIZATION,
SPIN-OFF OR SCHEME OF ARRANGEMENT) WITH ANOTHER PERSON WHEREBY SUCH OTHER PERSON
ACQUIRES MORE THAN 50% OF THE OUTSTANDING SHARES OF VOTING STOCK (NOT INCLUDING
ANY SHARES OF VOTING STOCK HELD BY THE OTHER PERSON OR