UPON
CONVERSION OF THE NOTES SHALL BE ELIGIBLE FOR SALE
30
WITHOUT RESTRICTION AND WITHOUT THE NEED FOR REGISTRATION UNDER ANY APPLICABLE
FEDERAL OR STATE SECURITIES LAWS; (II) ON EACH DAY DURING THE EQUITY CONDITIONS
MEASURING PERIOD, THE COMMON STOCK IS DESIGNATED FOR QUOTATION ON THE PRINCIPAL
MARKET OR ANY OTHER ELIGIBLE MARKET AND SHALL NOT HAVE BEEN SUSPENDED FROM
TRADING ON SUCH EXCHANGE OR MARKET (OTHER THAN SUSPENSIONS OF NOT MORE THAN TWO
(2) DAYS AND OCCURRING PRIOR TO THE APPLICABLE DATE OF DETERMINATION DUE TO
BUSINESS ANNOUNCEMENTS BY THE COMPANY) NOR SHALL DELISTING OR SUSPENSION BY SUCH
EXCHANGE OR MARKET BEEN THREATENED OR PENDING EITHER (A) IN WRITING BY SUCH
EXCHANGE OR MARKET OR (B) BY FALLING BELOW THE THEN EFFECTIVE MINIMUM LISTING
MAINTENANCE REQUIREMENTS OF SUCH EXCHANGE OR MARKET; (III) DURING THE EQUITY
CONDITIONS MEASURING PERIOD, THE COMPANY SHALL HAVE DELIVERED SHARES OF COMMON
STOCK UPON CONVERSION OF THE NOTES TO THE HOLDERS ON A TIMELY BASIS AS SET FORTH
IN SECTION 3(C)(II) HEREOF (AND ANALOGOUS PROVISIONS UNDER THE OTHER NOTES);
(IV) ANY APPLICABLE SHARES OF COMMON STOCK TO BE ISSUED IN CONNECTION WITH THE
EVENT REQUIRING DETERMINATION MAY BE ISSUED IN FULL WITHOUT VIOLATING
SECTION 3(D) HEREOF AND THE RULES OR REGULATIONS OF THE PRINCIPAL MARKET OR ANY
APPLICABLE ELIGIBLE MARKET; (V) THE COMPANY SHALL NOT HAVE FAILED TO TIMELY MAKE
ANY PAYMENTS WITHIN FIVE (5) BUSINESS DAYS OF WHEN SUCH PAYMENT IS DUE PURSUANT
TO ANY TRANSACTION DOCUMENT; (VI) DURING THE EQUITY CONDITIONS MEASURING PERIOD,
THERE SHALL NOT HAVE OCCURRED EITHER (A) THE PUBLIC ANNOUNCEMENT OF A PENDING,
PROPOSED OR INTENDED FUNDAMENTAL TRANSACTION WHICH HAS NOT BEEN ABANDONED,
TERMINATED OR CONSUMMATED, OR (B) AN EVENT OF DEFAULT OR (C) AN EVENT THAT WITH
THE PASSAGE OF TIME OR GIVING OF NOTICE WOULD CONSTITUTE AN EVENT OF DEFAULT;
(VII) THE COMPANY SHALL HAVE NO KNOWLEDGE OF ANY FACT THAT WOULD CAUSE (X) THE
REGISTRATION STATEMENTS REQUIRED PURSUANT TO THE REGISTRATION RIGHTS AGREEMENT
NOT TO BE EFFECTIVE AND AVAILABLE FOR THE RESALE OF ALL REMAINING REGISTRABLE
SECURITIES IN ACCORDANCE WITH THE TERMS OF THE REGISTRATION RIGHTS AGREEMENT OR
(Y) ANY SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THE NOTES NOT TO BE
ELIGIBLE FOR SALE WITHOUT RESTRICTION PURSUANT TO RULE 144(K) AND ANY APPLICABLE
STATE SECURITIES LAWS, (VIII) THE COMPANY OTHERWISE SHALL HAVE BEEN IN
COMPLIANCE WITH AND SHALL NOT HAVE BREACHED ANY PROVISION, COVENANT,
REPRESENTATION OR WARRANTY OF ANY TRANSACTION DOCUMENT; AND (IX) THE COMPANY
SHALL HAVE OBTAINED THE STOCKHOLDER APPROVAL ON OR BEFORE THE APPLICABLE
STOCKHOLDER APPROVAL DEADLINE.
(M)
"EQUITY CONDITIONS FAILURE" MEANS THAT ON ANY DAY DURING THE PERIOD
COMMENCING TEN (10) TRADING DAYS PRIOR TO THE APPLICABLE MANDATORY CONVERSION
NOTICE DATE THROUGH THE APPLICABLE MANDATORY CONVERSION DATE, THE EQUITY
CONDITIONS HAVE NOT BEEN SATISFIED (OR WAIVED IN WRITING BY THE HOLDER).
(N)
"EXCLUDED SECURITIES" MEANS ANY COMMON STOCK ISSUED OR ISSUABLE:
(I) IN CONNECTION WITH ANY APPROVED STOCK PLAN; (II) UPON CONVERSION OF THE
NOTES; (III) PURSUANT TO THE FOLLOW-ON OFFERING