THE COMPANY SHALL AMEND THE APPLICABLE REGISTRATION STATEMENT, OR FILE A
NEW REGISTRATION STATEMENT (ON THE SHORT FORM AVAILABLE THEREFOR, IF
APPLICABLE), OR BOTH, SO AS TO COVER AT LEAST THE REQUIRED REGISTRATION AMOUNT
AS OF THE TRADING DAY IMMEDIATELY PRECEDING THE DATE OF THE FILING OF SUCH
AMENDMENT OR NEW REGISTRATION STATEMENT, IN EACH CASE, AS SOON AS PRACTICABLE,
BUT IN ANY EVENT NOT LATER THAN FIFTEEN (15) DAYS AFTER THE NECESSITY THEREFOR
ARISES.
THE COMPANY SHALL USE ITS BEST EFFORTS TO CAUSE SUCH AMENDMENT AND/OR
NEW REGISTRATION STATEMENT TO BECOME EFFECTIVE AS SOON AS PRACTICABLE FOLLOWING
THE FILING THEREOF.
FOR PURPOSES OF THE FOREGOING PROVISION, THE NUMBER OF
SHARES AVAILABLE UNDER A REGISTRATION STATEMENT SHALL BE DEEMED "INSUFFICIENT TO
COVER ALL OF THE REGISTRABLE SECURITIES" IF AT ANY TIME THE NUMBER OF SHARES OF
COMMON STOCK AVAILABLE FOR RESALE UNDER THE REGISTRATION STATEMENT IS LESS THAN
THE PRODUCT DETERMINED BY MULTIPLYING (I) THE REQUIRED REGISTRATION AMOUNT AS OF
SUCH TIME BY (II) 0.67.
THE CALCULATION SET FORTH IN THE FOREGOING SENTENCE
SHALL BE MADE WITHOUT REGARD TO ANY LIMITATIONS ON THE CONVERSION OF THE NOTES
OR THE EXERCISE OF THE WARRANTS OR THE ADDITIONAL INVESTMENT RIGHTS AND SUCH
CALCULATION SHALL ASSUME THAT THE NOTES ARE THEN CONVERTIBLE INTO SHARES OF
COMMON STOCK AT THE THEN PREVAILING CONVERSION RATE (AS DEFINED IN THE NOTES)
AND THAT THE WARRANTS AND ADDITIONAL INVESTMENT RIGHTS ARE THEN EXERCISABLE FOR
SHARES OF COMMON STOCK AT THE THEN PREVAILING EXERCISE PRICE (AS DEFINED IN THE
WARRANTS AND ADDITIONAL INVESTMENT RIGHTS, RESPECTIVELY).
(F)
EFFECT OF FAILURE TO FILE AND OBTAIN AND
MAINTAIN EFFECTIVENESS OF REGISTRATION STATEMENT.
IF (I) A REGISTRATION
STATEMENT COVERING ALL OF THE REGISTRABLE SECURITIES REQUIRED TO BE COVERED
THEREBY AND REQUIRED TO BE FILED BY THE COMPANY PURSUANT TO THIS AGREEMENT IS
(A) NOT FILED WITH THE SEC ON OR BEFORE THE FILING DEADLINE (A "FILING FAILURE")
OR (B) NOT DECLARED EFFECTIVE BY THE SEC ON OR BEFORE THE RESPECTIVE
EFFECTIVENESS DEADLINE (AN "EFFECTIVENESS FAILURE") OR (II) ON ANY DAY AFTER THE
EFFECTIVE DATE SALES OF ALL OF THE REGISTRABLE SECURITIES REQUIRED TO BE
INCLUDED ON SUCH REGISTRATION STATEMENT CANNOT BE MADE (OTHER THAN DURING AN
ALLOWABLE GRACE PERIOD (AS DEFINED IN SECTION 3(R)) PURSUANT TO SUCH
REGISTRATION STATEMENT (INCLUDING, WITHOUT LIMITATION, BECAUSE OF A FAILURE TO
KEEP SUCH REGISTRATION STATEMENT EFFECTIVE, TO DISCLOSE SUCH INFORMATION AS IS
NECESSARY FOR SALES TO BE MADE PURSUANT TO SUCH REGISTRATION STATEMENT OR TO
REGISTER A SUFFICIENT NUMBER OF SHARES OF COMMON STOCK) (A "MAINTENANCE
FAILURE") THEN, AS PARTIAL RELIEF FOR THE DAMAGES TO ANY HOLDER BY REASON OF ANY
SUCH DELAY IN OR REDUCTION OF ITS ABILITY TO SELL THE UNDERLYING SHARES OF
COMMON STOCK (WHICH REMEDY SHALL NOT BE EXCLUSIVE OF ANY OTHER REMEDIES
AVAILABLE AT LAW OR IN EQUITY), THE COMPANY SHALL PAY TO EACH HOLDER OF
REGISTRABLE SECURITIES RELATING TO SUCH REGISTRATION STATEMENT AN AMOUNT IN CASH
EQUAL TO ONE PERCENT (1%) OF THE AGGREGATE PURCHASE PRICE (AS SUCH TERM IS