OR PURSUANT TO THE PURCHASE
AGREEMENT, AS APPLICABLE, WOULD CAUSE THE TOTAL NUMBER OF SHARES OF COMMON STOCK
THEN BENEFICIALLY OWNED BY SUCH HOLDER AND ANY PERSONS WHOSE BENEFICIAL
OWNERSHIP OF COMMON STOCK WOULD BE AGGREGATED WITH SUCH HOLDER FOR PURPOSES OF
SECTION 13(D) OF THE SECURITIES EXCHANGE ACT TO EXCEED 19.999% OF THE TOTAL
NUMBER OF OUTSTANDING SHARES OF COMMON STOCK OF THE COMPANY AT THE TIME OF SUCH
ISSUANCE, OR SUCH GREATER NUMBER OF SHARES OF COMMON STOCK PERMITTED PURSUANT TO
THE CORPORATE GOVERNANCE RULES OF THE TRADING MARKET THAT IS AT THE TIME THE
PRINCIPAL TRADING EXCHANGE OR MARKET FOR THE COMMON STOCK, BASED UPON SHARE
VOLUME, AS CONFIRMED IN WRITING BY COUNSEL TO THE COMPANY
(THE "MAXIMUM AGGREGATE SHARE AMOUNT"), UNLESS AND UNTIL THE COMPANY OBTAINS
STOCKHOLDER APPROVAL (AS DEFINED BELOW).
FOR PURPOSES OF THIS SECTION 2(E),
BENEFICIAL OWNERSHIP SHALL BE DETERMINED IN ACCORDANCE WITH SECTION 13(D) OF THE
EXCHANGE ACT AND THE RULES AND REGULATIONS PROMULGATED THEREUNDER.
IF ON ANY
ATTEMPTED EXERCISE OF A UNIT WARRANT, THE ISSUANCE OF UNITS WOULD EXCEED THE
MAXIMUM AGGREGATE SHARE AMOUNT AND THE COMPANY SHALL NOT HAVE PREVIOUSLY
OBTAINED STOCKHOLDER APPROVAL AT THE TIME OF EXERCISE, THEN THE COMPANY SHALL
ISSUE TO THE HOLDER REQUESTING A UNIT WARRANT EXERCISE SUCH NUMBER OF UNITS AS
MAY BE ISSUED BELOW THE MAXIMUM AGGREGATE SHARE AMOUNT AND, WITH RESPECT TO THE
REMAINDER OF THE AGGREGATE NUMBER OF UNITS, THIS UNIT WARRANT SHALL NOT BE
EXERCISABLE UNTIL AND UNLESS STOCKHOLDER APPROVAL HAS BEEN OBTAINED.
3.
REPRESENTATIONS AND WARRANTIES.
THE COMPANY HEREBY REPRESENTS AND WARRANTS TO
EACH HOLDER THAT, EXCEPT AS SET FORTH ON THE DISCLOSURE SCHEDULES DELIVERED TO
EACH HOLDER ON THE DATE HEREOF OR ON EACH DATE OF A NOTICE OF EXERCISE HEREUNDER
(EACH, AN "EXERCISE DATE"), AS APPLICABLE, EACH OF THE REPRESENTATIONS AND
WARRANTIES MADE BY THE COMPANY IN THE PURCHASE AGREEMENT WILL BE TRUE AND
CORRECT AS OF THE DATE HEREOF AND AS OF EACH EXERCISE DATE UNLESS A DIFFERENT
TIME IS EXPRESSLY PROVIDED IN SUCH PARAGRAPH; PROVIDED, FOR PURPOSES OF THIS
SECTION 3, THAT REFERENCES TO THE "UNDERLYING SHARES" IN SUCH REPRESENTATIONS
AND WARRANTIES IN THE PURCHASE AGREEMENT SHALL INSTEAD REFER TO THE WARRANT
SECURITIES WITH RESPECT TO THE REPRESENTATIONS AND WARRANTIES MADE PURSUANT TO
THIS SECTION 3.
4.
CLOSING DELIVERIES.
ON OR PRIOR TO EACH EXERCISE DATE, THE COMPANY SHALL
DELIVER OR CAUSE TO BE DELIVERED TO EACH PURCHASER THE FOLLOWING:
(A)
A CERTIFICATE, DATED AS OF SUCH EXERCISE
DATE, DULY EXECUTED BY AN OFFICER OF THE COMPANY TO THE EFFECT THAT THE
CONDITIONS SPECIFIED IN SECTIONS 5(B)(I) AND 5(B)(II) HAVE BEEN SATISFIED;
(B)
A LEGAL OPINION OF COMPANY COUNSEL,
SUBSTANTIALLY IN THE FORM OF EXHIBIT D TO THE PURCHASE AGREEMENT;
(C)
THE SERIES B PREFERRED STOCK AND THE COMMON
STOCK PURCHASE WARRANTS INCLUDED IN THE UNITS PURCHASED AS A RESULT OF THE
EXERCISE OF THE UNIT WARRANT PURSUANT TO SECTION 2 HEREOF REGISTERED IN THE NAME
OF THE HOLDER;
(D)
EVIDENCE OF FILING OF THE SERIES