Common use of Draw Down Terms Clause in Contracts

Draw Down Terms. Subject to the satisfaction of the --------------- conditions set forth in this Agreement, the parties agree as follows: (a) The Company, may, in its sole discretion, issue a Draw Down Notice with respect to a Draw Down during each Draw Down Pricing Period of up to (i) $500,000 if the Threshold Price is equal to or greater than $3.00 and less than $4.00, (ii) $750,000 if the Threshold Price is equal to or greater than $4.00 and less than $5.00, and (iii) $1,500,000 if the Threshold Price is equal to or greater than $5.00 and less than $7.00 and (iv) an additional $500,000 for every $2.00 increase in the Threshold Price above $5.00; provided, however, that if -------- ------- the Threshold Price is equal to or greater than $23.00, the Draw Down Amount may be equal to up to $6,000,000; provided, further, that the Company may, in -------- ------- Draw Down Notice with respect to any Draw Down Amount at any Threshold Price or any Draw Down Discount Percentage pursuant to terms mutually agreed upon by the Purchaser and the Company, which Draw Down the Purchaser will be obligated to accept. Notwithstanding the foregoing, the Purchaser shall not be required to accept any Draw Down Notice for which the Threshold Price is less than $5.00 after the Company and the Purchaser have completed Draw Downs, at Threshold Prices less than $5.00, in an aggregate amount of $15,000,000 or greater. Prior to issuing any Draw Down Notice, the Company shall have Shares registered under the Registration Statement which are valued in a dollar amount equal to or in excess of the Draw Down Amount. (b) The number of Shares to be issued in connection with each Draw Down shall be equal to the sum of the quotients (for each Trading Day of the Draw Down Pricing Period for which the VWAP equals or exceeds the Threshold Price) of (x) 1/20th (or such other fraction the denominator of which equals the number of Trading Days during the Draw Down Pricing Period) of the Draw Down Amount divided by (y) the applicable Draw Down Discount Percentage multiplied by the VWAP of the Common Stock for such Trading Day. (c) Only one Draw Down shall be allowed in each Draw Down Pricing Period. (d) The number of Shares purchased by the Purchaser with respect to each Draw Down shall be determined on a daily basis during each Draw Down Pricing Period and settled on the second Trading Day following the end of each Draw Down Pricing Period (the "Settlement Date"). --------------- (e) There shall be a minimum of five (5) Trading Days between the end of a Draw Down Pricing Period and the commencement of the next Draw Down Pricing Period, unless otherwise mutually agreed upon between the Purchaser and the Company. (f) There shall be a maximum of eighteen (18) monthly Draw Downs during the term of this Agreement. (g) Each Draw Down will expire on the end of the last Trading Day of each Draw Down Pricing Period. (h) If the VWAP on a given Trading Day is less than the Threshold Price, then the total amount of the Draw Down for the relevant Draw Down Pricing Period will be reduced by 1/20th (or such other fraction the denominator of which equals the number of Trading Days during the Draw Down Pricing Period). At no time shall the Threshold Price be set below $3.00, unless mutually agreed upon by the Company and the Purchaser. If trading in the Common Stock is suspended for any reason for more than three (3) hours in any Trading Day, at the Purchaser's option, the price of the Common Stock shall be deemed to be below the Threshold Price for that Trading Day and the Draw Down for the relevant Draw Down Pricing Period shall be reduced by 1/20th (or such other fraction the denominator of which equals the number of Trading Days during the Draw Down Pricing Period). Notwithstanding anything in the foregoing to the contrary, for each Trading Day during the Draw Down Pricing Period that the VWAP is less than the Threshold Price or is deemed to be below the Threshold Price pursuant to the immediately preceding sentence, the Purchaser may elect in its sole discretion to purchase Shares at a price equal to the Threshold Price multiplied by the Draw Down Discount Percentage at the end of such Draw Down Pricing Period. The Purchaser will inform the Company via facsimile transmission no later than 8:00 p.m. (eastern time) on the last Trading Day of such Draw Down Pricing Period as to the number of Shares, if any, the Purchaser chooses to purchase under such circumstances set forth in this Section 6.1(h). (i) The Company must inform the Purchaser via facsimile transmission before 9:30 a.m. (eastern time) on the first Trading Day of the Draw Down Pricing Period in substantially in the form attached hereto as Exhibit D (the "Draw Down Notice") of the Draw Down Amount the Company wishes to exercise. In ---------------- addition to the Draw Down Amount, the Company shall set the Threshold Price with each Draw Down Notice and shall designate the first Trading Day of the Draw Down Pricing Period. Notwithstanding anything in the foregoing to the contrary, if the Company wishes the Draw Down Exercise Date to be the first day of the Draw Down Pricing Period, the Draw Down Notice must be delivered to the Purchaser and receipt of such Draw Down Notice confirmed by the Purchaser prior to 9:30 a.m. (eastern time) on the date of such Draw Down Exercise Date. (j) Purchaser's behalf via the Deposit Withdrawal Agent Commission system ("DWAC"), ---- and upon receipt of the Shares, the Purchaser shall cause payment therefor to be made to the account designated by the Company by wire transfer of immediately available funds provided that the Shares are received no later than 1:00 p.m., eastern time, or next day available funds if the Shares are received thereafter. (k) If during any Draw Down Pricing Period the Company shall enter into an Other Financing (other than shares of Common Stock issued under this Agreement or pursuant to a Permitted Transaction), the Purchaser may in its sole discretion (i) purchase the Draw Down Amount of shares of Common Stock and/or exercise Call Options granted during such Draw Down Pricing Period on the terms at which the Company issued shares of Common Stock in the Other Financing during such Draw Down Pricing Period, net of any third party's discount and fees, (ii) purchase the Draw Down Amount of shares of Common Stock and/or exercise Call Options granted during such Draw Down Pricing Period at the applicable Draw Down Discount Percentage times the VWAP for such Draw Down Pricing Period, or (iii) elect not to purchase any Shares during such Draw Down Pricing Period. The Purchaser shall notify the Company of its election on the Trading Day preceding the Settlement Date. (l) If on the Settlement Date, the Company fails to deliver the Shares to be purchased by the Purchaser, and such failure continues for ten (10) Trading Days, the Company shall pay, in cash or restricted shares of Common Stock, at the option of the Purchaser, as liquidated damages and not as a penalty to the Purchaser an amount equal to two percent (2%) of the Draw Down Amount for the initial thirty (30) days and each additional thirty (30) day period thereafter until such failure has been cured, which shall be pro rated for such periods less than thirty (30) days (the "Periodic Amount"). --------------- Cash payments to be made pursuant to this clause (1) shall be due and payable immediately upon demand in immediately available cash funds. Certificates evidencing the restricted shares of Common Stock shall be delivered immediately upon demand. The parties agree that the Periodic Amount represents a reasonable estimate on the part of the parties, as of the date of this Agreement, of the amount of damages that may be incurred by the Purchaser if the Company fails to deliver the Shares on the Settlement Date. If the Purchaser elects to receive shares of Common Stock instead of cash, the Purchaser shall have the right to demand registration once within twelve (12) months of the date of issuance of such shares of Common Stock and piggyback registration rights if the Company files a separate registration statement. (m) If during any Draw Down Pricing Period the Company reasonably believes an event may occur which would require the suspension of the Registration Statement, the Company shall notify the Purchaser before commencement of trading on any Trading Day (a "Section 6.1(m) Notice") and --------------------- reduce the number of Trading Days in such Draw Down Pricing Period. The last Trading Day of such Draw Down Pricing Period shall be the Trading Day preceding the receipt of the Section 6.1(m) Notice; provided, however, that if the -------- ------- Company delivers the Section 6.1(m) Notice during trading hours on a Trading Day, then the last Trading Day of such Draw Down Pricing Period shall be the Trading Day on which the Section 6.1(m) Notice was received by the Purchaser. The Purchaser will purchase the Truncated Draw Down Allocation Amount for each of the Trading Days prior to receipt of the Section 6.1(m) Notice, for an aggregate purchase price determined in accordance with clauses (b) and (i) of this Section 6.1. In addition, the Purchaser may, at its option, elect to purchase Shares in an additional dollar amount equal to the product of the Draw Down Amount Requested, first multiplied by (x) a fraction, the numerator of which equals one (1) and the denominator of which equals eighteen (18) or such other number of Trading Days in such Draw Down Pricing Period as the parties may have mutually agreed upon with respect to such Draw Down Pricing Period (eighteen or such other mutually agreed upon number being referred to herein as the "Trading Day ----------- Number"), and next multiplied by (y) that number that is equal to the Trading ------ Day Number minus the number of Trading Days in the reduced Draw Down Pricing Period. The price per share for such additional dollar amount shall equal (i) the aggregate total of Truncated Draw Down Allocation Amounts during the reduced Draw Down Pricing Period divided by (ii) the number of Shares to be purchased during such reduced Draw Down Pricing Period. Upon receipt of the Section 6.1(m) Notice, the Purchaser may (x) elect to purchase the Common Stock at the Threshold Price for any Trading Day that the VWAP was below the Threshold Price during the reduced Draw Down Pricing Period in accordance with Section 6.1(i) hereof, (y) elect to purchase the Common Stock in the additional amount as set forth in the preceding paragraph of this Section 6.1(m), and (z) elect to exercise any unexercised Call Options by issuing a Call Option Notice to the Company, in each such case, no later than 10:00 a.m. (eastern time) on the first Trading Day after the end of the reduced Draw Down Pricing Period. The exercise price of the Call Option shall be based on the VWAP on the last Trading Day of the reduced Draw Down Pricing Period (in lieu of the VWAP as specified in clause (A) of Section 6.2(b) hereof) and otherwise determined in accordance with Section 6.2(b) hereof.

Draw Down Terms. Subject to the satisfaction of the --------------- conditions set forth in this AgreementAgreement and subject to Section 6.3 below, the parties agree as follows: (a) The Company, may, in its sole discretion, issue a Draw Down Notice with respect to a Draw Down during each Draw Down Pricing Period of up to (i) $500,000 1,500,000 if the Threshold Price is equal to or greater than $1.00 but less than $2.00, (ii) $2,500,000 if the Threshold Price is equal to or greater than $2.00 but less than $3.00 and (iii) $5,000,000 if the Threshold Price is equal to or greater than $3.00 and but less than $4.00, (ii) $750,000 if the Threshold Price is equal to or greater than $4.00 and less than $5.00, and (iii) $1,500,000 if the Threshold Price is equal up to or greater than $5.00 and less than $7.00 and (iv) an additional $500,000 2,000,000 for every $2.00 1.00 increase in the Threshold Price above $5.003.00 for a maximum Draw Down Amount during each Draw Down Pricing Period of up to $35,000,000; provided, however, that if -------- ------- the Threshold Price is equal to or greater than $23.00, the Draw Down Amount may be equal to up to $6,000,000; provided, further, that the Company may, in -------- ------- its sole discretion, issue a Draw Down Notice with respect to any Draw Down Amount at any Threshold Price or any Draw Down Discount Percentage pursuant to terms mutually agreed upon by the Purchaser and the Company, which Draw Down the Purchaser will be obligated to accept. Notwithstanding the foregoing, the Purchaser shall not be required to accept any Draw Down Notice for which the Threshold Price is less than $5.00 after the Company and the Purchaser have completed Draw Downs, at Threshold Prices less than $5.00, in an aggregate amount of $15,000,000 or greater. Prior to issuing any Draw Down Notice, the Company shall have Shares registered under the Registration Statement which are valued in a dollar amount equal to or in excess of the Draw Down Amount. (b) The number of Shares to be issued in connection with each Draw Down shall be equal to the sum of the quotients (for each Trading Day of the Draw Down Pricing Period for which the VWAP equals or exceeds the Threshold Price) of (x) 1/20th 1/18th (or such other fraction based on the denominator length of which equals the number of Trading Days during the Draw Down Pricing Period) of the Draw Down Amount divided by (y) the applicable Draw Down Discount Percentage (or such other percentage mutually agreed upon by the parties) multiplied by the VWAP of the Common Stock for such Trading Day. (c) Only one Draw Down shall be allowed in each Draw Down Pricing Period. (d) The number of Shares purchased by the Purchaser with respect to each Draw Down shall be determined on a daily basis during each Draw Down Pricing Period and settled on the second Trading Day business day following the end of each Draw Down Pricing Period (the "Settlement Date"). ---------------. (e) There shall be a minimum of five (5) Trading Days between the end of a Draw Down Pricing Period and the commencement of the next Draw Down Pricing PeriodDowns, unless otherwise mutually agreed upon between the Purchaser and the Company. (f) There shall be a maximum of eighteen twenty four (1824) monthly Draw Downs during the term of this Agreement. (g) Each Draw Down will expire on the end of immediately after the last Trading Day of each Draw Down Pricing Period. (h) If the VWAP on a given Trading Day in a Draw Down Pricing Period is less than the Threshold Price, then the total amount of the Draw Down for the relevant Draw Down Pricing Period will be reduced by 1/20th 1/18th (or such other fraction based on the denominator length of which equals the number of Trading Days during the Draw Down Pricing Period). At no time shall the Threshold Price be set below $3.001.00, unless mutually agreed upon by the Company and the Purchaser. If trading in the Company's Common Stock is suspended for any reason for more than three (3) hours in any Trading Day, at the Purchaser's option, the price of the Common Stock shall be deemed to be below the Threshold Price for that Trading Day and the Draw Down for the relevant Draw Down Pricing Period shall be reduced by 1/20th 1/18th (or such other fraction based on the denominator length of which equals the number of Trading Days during the Draw Down Pricing Period). Notwithstanding anything in the foregoing to the contrary, for each Trading Day during the Draw Down Pricing Period that the VWAP is less than the Threshold Price or is deemed to be below the Threshold Price pursuant to the immediately preceding sentence, the Purchaser may elect in its sole discretion to purchase Shares at a price equal to the Threshold Price multiplied by the Draw Down Discount Percentage at the end of such Draw Down Pricing Period. The Purchaser will inform the Company via facsimile transmission no later than 8:00 p.m. (eastern New York time) on the last Trading Day of such Draw Down Pricing Period as to the number of Shares, if any, the Purchaser chooses to purchase under such circumstances set forth in this Section 6.1(h). (i) The Company must inform the Purchaser via facsimile transmission as to the Draw Down Amount the Company wishes to exercise before 9:30 a.m. (eastern time) commencement of trading on the first Trading Day of the Draw Down Pricing Period in covered by such notice (the "Draw Down Notice"), substantially in the form attached hereto as Exhibit D (the "Draw Down Notice") of the Draw Down Amount the Company wishes to exercise. D. In ---------------- addition to the Draw Down Amount, the Company shall set the Threshold Price with each Draw Down Notice and shall designate the first Trading Day of the Draw Down Pricing Period. Notwithstanding anything in the foregoing to the contrary, if the Company wishes the date of the Draw Down Exercise Date Notice to be the first day of the Draw Down Pricing Period, the Draw Down Notice must be delivered to the Purchaser and receipt of such Draw Down Notice confirmed by the Purchaser prior to 9:30 a.m. (eastern time) the commencement of trading on the date of such Draw Down Exercise DateNotice. (j) On each Settlement Date, the Company shall deliver the Shares purchased by the Purchaser to the Purchaser or to The Depositary Trust Company ("DTC") on the Purchaser's behalf via the Deposit Withdrawal Agent Commission system ("DWAC"), ---- and upon receipt of the Shares, the Purchaser shall cause payment therefor to be made to the account designated by the Company by wire transfer of immediately available funds provided that the Shares are received no later than 1:00 p.m., eastern New York time, or next day available funds if the Shares are received thereafter. (k) If during any Draw Down Pricing Period the Company shall enter into an Other Financing (other than shares of Common Stock issued under this Agreement or pursuant to a Permitted Transaction), the Purchaser may in its sole discretion (i) purchase the Draw Down Amount of shares of Common Stock and/or exercise Call Options granted during such Draw Down Pricing Period on the terms at which the Company issued shares of Common Stock in the Other Financing during such Draw Down Pricing Period, net of any third party's discount and fees, (ii) purchase the Draw Down Amount of shares of Common Stock and/or exercise Call Options granted during such Draw Down Pricing Period at the applicable Draw Down Discount Percentage times the VWAP for such Draw Down Pricing Period, or (iii) elect not to purchase any Shares during such Draw Down Pricing Period. The Purchaser shall notify the Company of its election on the Trading Day business day preceding the Settlement Date. (l) If on the Settlement Date, the Company fails to deliver the Shares to be purchased by the Purchaser, and such failure continues for ten (10) Trading Days, the Company shall pay, in cash or restricted shares of Common Stock, at the option of the Purchasercash, as liquidated damages and not as a penalty to the Purchaser an amount equal to two percent (2%) of the Draw Down Amount for the initial thirty (30) days and each additional thirty (30) day period thereafter until such failure has been cured, which shall be pro rated for such periods less than thirty (30) days (the "Periodic Amount"). --------------- Cash payments to be made pursuant to this clause (1) shall be due and payable immediately upon demand in immediately available cash funds. Certificates evidencing the restricted shares of Common Stock shall be delivered immediately upon demand. The parties agree that the Periodic Amount represents a reasonable estimate on the part of the parties, as of the date of this Agreement, of the amount of damages that may be incurred by the Purchaser if the Company fails to deliver the Shares on the Settlement Date. If the Purchaser elects to receive shares of Common Stock instead of cash, the Purchaser shall have the right to demand registration once within twelve (12) months of the date of issuance of such shares of Common Stock and piggyback registration rights if the Company files a separate registration statement. (m) If during any Draw Down Pricing Period the Company reasonably believes an event may occur which would require the suspension of the Registration Statement, the Company shall notify the Purchaser before commencement of trading on any Trading Day (a "Section 6.1(m) Notice") and --------------------- reduce the number of Trading Days in such Draw Down Pricing Period. The last Trading Day of such Draw Down Pricing Period shall be the Trading Day preceding the receipt of the Section 6.1(m) Notice; provided, however, that if the -------- ------- Company delivers the Section 6.1(m) Notice during trading hours on a Trading Day, then the last Trading Day of such Draw Down Pricing Period shall be the Trading Day on which the Section 6.1(m) Notice was received by the Purchaser. The Purchaser will purchase the Truncated Draw Down Allocation Amount for each of the Trading Days prior to receipt of the Section 6.1(m) Notice, for an aggregate purchase price determined in accordance with clauses (b) and (i) of this Section 6.1. In addition, the Purchaser may, at its option, elect to purchase Shares in an additional dollar amount equal to the product of the Draw Down Amount Requested, first multiplied by (x) a fraction, the numerator of which equals one (1) and the denominator of which equals eighteen (18) or such other number of Trading Days in such Draw Down Pricing Period as the parties may have mutually agreed upon with respect to such Draw Down Pricing Period (eighteen or such other mutually agreed upon number being referred to herein as the "Trading Day ----------- Number"), and next multiplied by (y) that number that is equal to the Trading ------ Day Number minus the number of Trading Days in the reduced Draw Down Pricing Period. The price per share for such additional dollar amount shall equal (i) the aggregate total of Truncated Draw Down Allocation Amounts during the reduced Draw Down Pricing Period divided by (ii) the number of Shares to be purchased during such reduced Draw Down Pricing Period. Upon receipt of the Section 6.1(m) Notice, the Purchaser may (x) elect to purchase the Common Stock at the Threshold Price for any Trading Day that the VWAP was below the Threshold Price during the reduced Draw Down Pricing Period in accordance with Section 6.1(i) hereof, (y) elect to purchase the Common Stock in the additional amount as set forth in the preceding paragraph of this Section 6.1(m), and (z) elect to exercise any unexercised Call Options (for a Call Option Amount not to exceed $1,000,000) by issuing a Call Option Notice to the Company, in each such case, no later than 10:00 a.m. (eastern New York time) on the first Trading Day after the end of the reduced Draw Down Pricing Period. The exercise price of the Call Option shall be based on the VWAP on the last Trading Day of the reduced Draw Down Pricing Period (in lieu of the VWAP as specified in clause (A) of Section 6.2(b) hereof) and otherwise determined in accordance with Section 6.2(b) hereof.

Draw Down Terms. Subject to the satisfaction of the --------------- conditions set forth in this Agreement, the parties agree as follows: (a) The Company, may, in its sole discretion, issue a Draw Down Notice with respect to a draw down (a "Draw Down Down") during each Draw Down Pricing Period of up to (i) $500,000 4,000,000 if the Threshold Price is equal to or greater than $3.00 and 6.00 but less than $4.00, 8.00; (ii) $750,000 6,000,000 if the Threshold Price is equal to or greater than $4.00 and 8.00 but less than $5.00, and 11.00; (iii) $1,500,000 8,000,000 if the Threshold Price is equal to or greater than $5.00 and 11.00 but less than $7.00 and 14.00; or (iv) an additional $500,000 for every $2.00 increase in the Threshold Price above $5.00; provided, however, that 10,000,000 if -------- ------- the Threshold Price is equal to or greater than $23.00, the Draw Down Amount may be equal to up to $6,000,00014.00; provided, further, that the Company may, in -------- ------- its sole discretion, issue a Draw Down Notice with respect to any Draw Down Amount at any Threshold Price or any Draw Down Discount Percentage pursuant to terms mutually agreed upon by the Purchaser and the Company, which Draw Down the Purchaser will be obligated to accept. Notwithstanding the foregoing, the Purchaser shall not be required to accept any Draw Down Notice for which the Threshold Price is less than $5.00 after the Company and the Purchaser have completed Draw Downs, at Threshold Prices less than $5.00, in an aggregate amount of $15,000,000 or greater. Prior to issuing any Draw Down Notice, the Company shall have Shares registered under the Registration Statement which are valued in a dollar at an amount equal to or in excess of the Draw Down Amount. (b) The number of Shares to be issued in connection with each Draw Down shall be equal to the sum of the quotients (for each Trading Day trading day of the Draw Down Pricing Period for which the VWAP equals or exceeds the Threshold Price) of (x) 1/20th (or such other fraction based on the denominator length of which equals the number of Trading Days during the Draw Down Pricing Period) of the Draw Down Amount divided by (y) the applicable Draw Down Discount Percentage multiplied by the VWAP of the Common Stock for such Trading Daytrading day. (c) Only one Draw Down shall be allowed in each Draw Down Pricing Period. Each Draw Down Pricing Period shall consist of two (2) periods of ten (10) consecutive trading days (each, a "Settlement Period"). (d) The number of Shares purchased by the Purchaser with respect to each Draw Down shall be determined on a daily basis during each Draw Down Pricing Period and settled on the second Trading Day business day following the end of each Draw Down Pricing Settlement Period (the "Settlement Date"). ---------------. (e) There shall be a minimum of five (5) Trading Days trading days between the end of a Draw Down Pricing Period and the commencement Downs (including after consummation of the next Draw Down Pricing PeriodInitial Purchase), unless otherwise mutually agreed upon between the Purchaser and the Company. (f) There shall be a maximum of eighteen twelve (1812) monthly Draw Downs during the term of this Agreement. (g) Each Draw Down will expire on the end of the last Trading Day trading day of each Draw Down Pricing Period. (h) If the VWAP on a given Trading Day trading day is less than the Threshold Price, then the total amount of the Draw Down for the relevant Draw Down Pricing Period will be reduced by 1/20th (or such other fraction based on the denominator length of which equals the number of Trading Days during the Draw Down Pricing Period). At no time shall the Threshold Price be set below $3.00, unless mutually agreed upon by the Company and the Purchaser. If trading in the Common Stock is suspended for any reason for more than three (3) hours in any Trading Day, at the Purchaser's option, the price of the Common Stock shall be deemed to be below the Threshold Price for that Trading Day and the Draw Down for the relevant Draw Down Pricing Period shall be reduced by 1/20th (or such other fraction the denominator of which equals the number of Trading Days during the Draw Down Pricing Period). Notwithstanding anything in the foregoing to the contrary, for each Trading Day trading day during the Draw Down Pricing Period that the VWAP is less than the Threshold Price or is deemed to be below the Threshold Price pursuant to the immediately preceding sentencePrice, the Purchaser may elect in its sole discretion to purchase Shares at a price equal to the Threshold Price multiplied by the Draw Down Discount Percentage at the end of such Draw Down Pricing Period. The Purchaser will inform Period and the Company via facsimile transmission no later than 8:00 p.m. (eastern time) on total amount of the last Trading Day of such Draw Down Pricing Period as shall not be reduced by 1/20th pursuant to the number of Sharesforegoing sentence. At no time shall the Threshold Price be set below $6.00, if any, the Purchaser chooses to purchase under such circumstances set forth in this Section 6.1(h).unless mutually (i) The Company must inform the Purchaser via facsimile transmission as to the Draw Down Amount the Company wishes to exercise before 9:30 a.m. (eastern time) commencement of trading on the first Trading Day trading day of the Draw Down Pricing Period in (the "Draw Down Notice"), substantially in the form attached hereto as Exhibit D (the "Draw Down Notice") of the Draw Down Amount the Company wishes to exercise. C. In ---------------- addition to the Draw Down Amount, the Company shall set the Threshold Price with each Draw Down Notice and shall designate the first Trading Day of the Draw Down Pricing Period. Notwithstanding anything in the foregoing to the contrary, if the Company wishes the Draw Down Exercise Date to be the first trading day of the Draw Down Pricing Period, the Draw Down Notice must be delivered to the Purchaser and receipt of such Draw Down Notice confirmed by the Purchaser prior to 9:30 a.m. (eastern time) on the date of such Draw Down Exercise Date. (j) On each Settlement Date, the Company shall deliver the Shares purchased by the Purchaser to the Purchaser or to The Depositary Trust Company ("DTC") on the Purchaser's behalf via the Deposit Withdrawal Agent Commission system ("DWAC"), ---- and upon receipt of the Shares, the Purchaser shall cause payment therefor to be made to the account designated by the Company by wire transfer of immediately available funds provided that the Shares are received no later than 1:00 p.m., eastern time, or next day available funds if the Shares are received thereafter. (k) If during any Draw Down Pricing Period Period, the Company shall enter into an any other equity financing agreement (the "Other Financing (other than shares Financing") the primary purpose of Common Stock issued under this Agreement or pursuant which is to a Permitted Transaction)raise financing for the Company, the Purchaser may in its sole discretion (i) purchase the Draw Down Amount of shares of Common Stock and/or exercise Call Options granted during such Draw Down down Pricing Period on at the terms price at which the Company issued shares of Common Stock in the Other Financing during such Draw Down Pricing Period, net of any third party's discount and fees, (ii) purchase the Draw Down Amount of shares of Common Stock and/or exercise Call Options granted during such Draw Down Pricing Period at the applicable Draw Down Discount Percentage times the VWAP for such Draw Down Pricing Period, or (iii) elect not to purchase any Shares during such Draw Down Pricing Period. The Purchaser shall notify the Company of its election on the Trading Day business day preceding the Settlement Date. (l) If on the Settlement Date, the Company fails to deliver the Shares to be purchased by the Purchaser, and such failure continues for ten (10) Trading Daystrading days, the Company shall pay, in cash or restricted shares of Common Stock, at the option of the Purchaser, as liquidated damages and not as a penalty to the Purchaser an amount equal to two percent (2%) of the Draw Down Amount for the initial thirty (30) days and each additional thirty (30) day period thereafter until such failure has been cured, which shall be pro rated for such periods less than thirty (30) days (the "Periodic Amount"). --------------- Cash payments to be made pursuant to this clause (1l) shall be due and payable immediately upon demand in immediately available cash funds. Certificates evidencing the restricted shares of Common Stock shall be delivered immediately upon demand. The parties agree that the Periodic Amount represents a reasonable estimate on the part of the parties, as of the date of this Agreement, of the amount of damages that may be incurred by the Purchaser if the Company fails to deliver the Shares on the Settlement Date. If the Purchaser elects to receive shares of Common Stock instead of cash, the Purchaser shall have the right to demand registration once within twelve (12) months of the date of issuance of such shares of Common Stock and piggyback registration rights if the Company files a separate registration statement. (m) If during any Draw Down Pricing Period the Company reasonably believes an event may occur which would require the suspension of the Registration Statement, the Company shall notify the Purchaser before commencement of trading on any Trading Day (a "Section 6.1(m) Notice") and --------------------- reduce the number of Trading Days in such Draw Down Pricing Period. The last Trading Day of such Draw Down Pricing Period shall be the Trading Day preceding the receipt of the Section 6.1(m) Notice; provided, however, that if the -------- ------- Company delivers the Section 6.1(m) Notice during trading hours on a Trading Day, then the last Trading Day of such Draw Down Pricing Period shall be the Trading Day on which the Section 6.1(m) Notice was received by the Purchaser. The Purchaser will purchase the Truncated Draw Down Allocation Amount for each of the Trading Days prior to receipt of the Section 6.1(m) Notice, for an aggregate purchase price determined in accordance with clauses (b) and (i) of this Section 6.1. In addition, the Purchaser may, at its option, elect to purchase Shares in an additional dollar amount equal to the product of the Draw Down Amount Requested, first multiplied by (x) a fraction, the numerator of which equals one (1) and the denominator of which equals eighteen (18) or such other number of Trading Days in such Draw Down Pricing Period as the parties may have mutually agreed upon with respect to such Draw Down Pricing Period (eighteen or such other mutually agreed upon number being referred to herein as the "Trading Day ----------- Number"), and next multiplied by (y) that number that is equal to the Trading ------ Day Number minus the number of Trading Days in the reduced Draw Down Pricing Period. The price per share for such additional dollar amount shall equal (i) the aggregate total of Truncated Draw Down Allocation Amounts during the reduced Draw Down Pricing Period divided by (ii) the number of Shares to be purchased during such reduced Draw Down Pricing Period. Upon receipt of the Section 6.1(m) Notice, the Purchaser may (x) elect to purchase the Common Stock at the Threshold Price for any Trading Day that the VWAP was below the Threshold Price during the reduced Draw Down Pricing Period in accordance with Section 6.1(i) hereof, (y) elect to purchase the Common Stock in the additional amount as set forth in the preceding paragraph of this Section 6.1(m), and (z) elect to exercise any unexercised Call Options by issuing a Call Option Notice to the Company, in each such case, no later than 10:00 a.m. (eastern time) on the first Trading Day after the end of the reduced Draw Down Pricing Period. The exercise price of the Call Option shall be based on the VWAP on the last Trading Day of the reduced Draw Down Pricing Period (in lieu of the VWAP as specified in clause (A) of Section 6.2(b) hereof) and otherwise determined in accordance with Section 6.2(b) hereof.such

Draw Down Terms. Subject to the satisfaction of the --------------- conditions set forth in this Agreement, and subject to Section 6.2 below, the parties agree as follows: (a) The CompanyBeginning on the effective date of the Registration Statement, the Company may, in its sole discretion, issue a Draw Down Notice with respect to (as defined in Section 6.1(i) hereof) for a specified Draw Down during each Draw Down Pricing Period Amount Requested (i) of up to (i) $500,000 30,000,000 if the Threshold Price for the Draw Down Amount as set forth in such Draw Down Notice is equal to or greater than $3.00 15.00 and less than $4.0017.00, (ii) increased by up to $750,000 if the Threshold Price is equal to or greater than $4.00 and less than $5.00, and (iii) $1,500,000 if the Threshold Price is equal to or greater than $5.00 and less than $7.00 and (iv) an additional $500,000 3,000,000 incrementally for every $2.00 increase in the Threshold Price above $5.00; provided15.00 and up to and including $35.00, however, that if -------- ------- or (iii) decreased by up to $3,000,000 incrementally for every $2.00 decrease in the Threshold Price is equal below $15.00 and down to or greater than and including $23.00, the Draw Down Amount may be equal to up to $6,000,000; provided, further, that 11.00. The date the Company may, in -------- ------- Draw Down Notice with respect to any Draw Down Amount at any Threshold Price or any Draw Down Discount Percentage pursuant to terms mutually agreed upon by the Purchaser and the Company, which Draw Down the Purchaser will be obligated to accept. Notwithstanding the foregoing, the Purchaser shall not be required to accept issues any Draw Down Notice for which the Threshold Price is less than $5.00 after the Company and the Purchaser have completed Draw Downs, at Threshold Prices less than $5.00, in an aggregate amount of $15,000,000 or greater. Prior to issuing any accordance with this Section 6.1 shall be a "Draw Down Notice, the Company shall have Shares registered under the Registration Statement which are valued in a dollar amount equal to or in excess Exercise Date" for purposes of the Draw Down Amountthis Agreement. (b) The Subject to Section 6.1(h) below, the number of Shares to be issued by the Company to the Purchaser in connection with each Draw Down shall be equal to the sum of the quotients (for each Trading Day of the Draw Down Pricing Period for which the VWAP equals or exceeds the Threshold Price) of (x) 1/20th a fraction of the Draw Down Amount, the numerator of which is one (or such other fraction 1) and the denominator of which equals the number of Trading Days during the Draw Down Pricing Period) of the Draw Down Amount , divided by (y) the applicable specified percentage of the VWAP set forth in Section 6.1(j) hereof (the "Draw Down Discount Percentage multiplied by the VWAP Price") of the Common Stock for such Trading DayStock. All fractional shares shall be rounded down to the nearest whole share. (c) Only one Draw Down shall be allowed in each Draw Down Pricing Period. (d) The number of Shares purchased by the Purchaser with respect to each Each Draw Down shall be determined on a daily basis during each Draw Down Pricing Period and settled on the second Trading Day following after the end of each Draw Down Pricing Period (the "Settlement Date"). ---------------. (e) There shall be a minimum of five (5) Trading Days between the end of a Draw Down Pricing Period and the commencement of the next Draw Down Pricing Period, unless otherwise mutually agreed upon between the Purchaser and the Company. (f) There shall be a maximum of eighteen fifteen (1815) monthly Draw Downs during the term of this AgreementInvestment Period. (g) Each Draw Down will automatically expire on the end of immediately after the last Trading Day of each Draw Down Pricing Period. (h) If the VWAP on a given Trading Day in the Draw Down Pricing Period is less than the Threshold Price, then the total amount of the Draw Down for the relevant Draw Down Pricing Period Amount Requested will be reduced by 1/20th a fraction, the numerator of which is one (or such other fraction 1) and the denominator of which equals the number of Trading Days during in the Draw Down Pricing Period)Period and no Shares will be purchased or sold with respect to such Trading Day, except as provided below. The aggregate amount by which the Draw Down Amount Requested is reduced shall be referred to herein as the "Below Threshold Amount." At no time shall the Threshold Price be set below eleven dollars ($3.0011.00) per share (as adjusted for stock splits, unless mutually agreed upon by the Company reverse stock splits, recapitalizations and the Purchaserlike). If trading in the Common Stock is suspended for any reason for more than three (3) hours or more in any Trading Day, at the Purchaser's option, the price of the Common Stock shall will be deemed to be below the Threshold Price for that Trading Day and the Draw Down for the relevant Draw Down Pricing Period shall be reduced by 1/20th (or such other fraction the denominator of which equals the number of Trading Days during the Draw Down Pricing Period). Notwithstanding anything in the foregoing to the contrary, for each Trading Day during the Draw Down Pricing Period that the VWAP is less than the Threshold Price or is deemed to be below the Threshold Price pursuant to the immediately preceding sentence, the Purchaser may elect in its sole discretion to purchase Shares at a price equal to the Threshold Price multiplied by the Draw Down Discount Percentage at the end of such Draw Down Pricing Period. The Purchaser will inform the Company via facsimile transmission no later than 8:00 p.m. (eastern time) on the last Trading Day of such Draw Down Pricing Period as to the number of Shares, if any, the Purchaser chooses to purchase under such circumstances set forth in this Section 6.1(h)Day. (i) The As a condition to the exercise of any Draw Down, the Company must inform provide a notice to the Purchaser of the Company's exercise of any Draw Down via facsimile transmission before 9:30 a.m. (eastern time) on the first Trading Day of the Draw Down Pricing Period in covered by such notice (the "Draw Down Notice"), substantially in the form attached hereto as Exhibit D (the "B. The Draw Down Notice") of Notice shall specify the Draw Down Amount the Company wishes to exercise. In ---------------- addition to the Draw Down AmountRequested, the Company shall set the Threshold Price with each for such Draw Down Notice and shall designate the first Trading Day of the Draw Down Pricing Period. Notwithstanding anything in the foregoing to the contrary, if If the Company wishes the date of the Draw Down Exercise Date Notice to be the first day Trading Day of the Draw Down Pricing Period, the Draw Down Notice such notice must be delivered to the Purchaser and such receipt of such Draw Down Notice confirmed by the Purchaser prior to confirmed, before 9:30 a.m. (eastern New York time) on the date of such Draw Down Exercise DateTrading Day. (j) With respect to any Draw Down, if the Threshold Price for the Draw Down Amount as set forth in the Draw Down Notice is equal to or greater than $15.00 and less than $17.00, the Draw Down Discount Price shall be 95.8% of the VWAP. For any Threshold Price for the Draw Down Amount as set forth in the Draw Down Notice at or above $17.00 and up to and including $35.00, the Draw Down Discount Price shall increase by 0.10% incrementally for every $2.00 increase in the Threshold Price above $15.00, up to a maximum Draw Down Discount Price of 96.8% of the VWAP. For any Threshold Price for the Draw Down Amount as set forth in the Draw Down Notice below $15.00 and down to and including $11.00, the Draw Down Discount Price shall decrease by 0.25% incrementally for every $2.00 decrease in the Threshold Price below $15.00, down to a minimum Draw Down Discount Price of 95.3% of the VWAP. (k) On each Settlement Date, the Company shall instruct the Transfer Agent to deliver Shares purchased by the Purchaser to The Depositary Trust Company ("DTC") on the Purchaser's behalf via the Deposit Withdrawal Agent Commission system ("DWAC"), ---- and upon receipt of the Shares, the Purchaser shall cause payment therefor therefore to be made to the account designated by the Company by wire transfer of immediately available funds funds, provided that the Shares are received by the Purchaser no later than 1:00 p.m., eastern New York time, or of next day available funds if the Shares are received thereafter. (k) If during any Draw Down Pricing Period . In certain circumstances and as set forth in Section 9.1(b), a failure by the Company shall enter into an Other Financing (other than shares to deliver such Shares may result in the payment of Common Stock issued under this Agreement or liquidated damages by the Company to the Purchaser. The Purchaser acknowledges that although the Shares acquired from the Company pursuant to a Permitted Transaction)DWAC transfer do not bear a restrictive legend, they constitute "restricted securities" within the meaning of the Securities Act and the Purchaser may agrees it will transfer the Shares through the facilities of The Depository Trust Company only pursuant to the Registration Statement or Rule 144 and in its sole discretion (i) purchase compliance with the Draw Down Amount of shares of Common Stock and/or exercise Call Options granted during such Draw Down Pricing Period on prospectus delivery requirements under the terms at which the Company issued shares of Common Stock in the Other Financing during such Draw Down Pricing Period, net of any third party's discount and fees, (ii) purchase the Draw Down Amount of shares of Common Stock and/or exercise Call Options granted during such Draw Down Pricing Period at the applicable Draw Down Discount Percentage times the VWAP for such Draw Down Pricing Period, or (iii) elect not to purchase any Shares during such Draw Down Pricing Period. The Purchaser shall notify the Company of its election on the Trading Day preceding the Settlement DateSecurities Act. (l) If on the Settlement Date, the Company fails to deliver the Shares to be purchased by the Purchaser, and such failure continues for ten (10) Trading Days, the Company shall pay, in cash or restricted shares of Common Stock, at the option of the Purchaser, as liquidated damages and not as a penalty to the Purchaser an amount equal to two percent (2%) of the Draw Down Amount for the initial thirty (30) days and each additional thirty (30) day period thereafter until such failure has been cured, which shall be pro rated for such periods less than thirty (30) days (the "Periodic Amount"). --------------- Cash payments to be made pursuant to this clause (1) shall be due and payable immediately upon demand in immediately available cash funds. Certificates evidencing the restricted shares of Common Stock shall be delivered immediately upon demand. The parties agree that the Periodic Amount represents a reasonable estimate on the part of the parties, as of the date of this Agreement, of the amount of damages that may be incurred by the Purchaser if the Company fails to deliver the Shares on the Settlement Date. If the Purchaser elects to receive shares of Common Stock instead of cash, the Purchaser shall have the right to demand registration once within twelve (12) months of the date of issuance of such shares of Common Stock and piggyback registration rights if the Company files a separate registration statement. (m) If during any Draw Down Pricing Period the Company reasonably believes an event may occur which would result in or may require the suspension of the effectiveness of the Registration StatementStatement prior to the applicable Settlement Date, including, without limitation, entering into an extraordinary transaction in which the Company is not the surviving entity, the Company shall notify the Purchaser before commencement of trading 9:30 a.m. (New York time) on any Trading Day (a "Section 6.1(m) Truncate Notice") and --------------------- reduce truncate the number of Trading Days in such Draw Down Pricing Period (a "Truncated Pricing Period"). The If the Company delivers the Truncate Notice (i) before 9:30 a.m. (New York time) on a Trading Day, the last Trading Day of such Draw Down Truncated Pricing Period shall be the Trading Day preceding the receipt of the Section 6.1(mTruncate Notice between, or (ii) Notice; provided, however, that if the -------- ------- Company delivers the Section 6.1(mbetween 9:30 a.m. and 4:00 p.m. (New York time) Notice during trading hours on a Trading Day, then the last Trading Day of such Draw Down Truncated Pricing Period shall be the Trading Day on which the Section 6.1(m) Truncate Notice was received by the Purchaser. The Subject to the satisfaction of the conditions set forth in Section 5.2, the Purchaser will purchase the Truncated Draw Down Allocation Amount for each of the Trading Days prior to receipt of the Section 6.1(m) Noticein a Truncated Pricing Period, for an aggregate purchase price determined in accordance with clauses (bSection 6.1(b) and Section 6.1(h). (im) of this Section 6.1. In addition, the Purchaser may, at its option, elect to purchase Shares in an additional dollar amount equal to the product of the Draw Down Amount Requested, first multiplied by (x) a fraction, the numerator of which equals one (1) and the denominator of which equals eighteen (18) or such other number of Trading Days in such Draw Down The Settlement Date for any Truncated Pricing Period as the parties may have mutually agreed upon with respect to such Draw Down Pricing Period (eighteen or such other mutually agreed upon number being referred to herein as the "Trading Day ----------- Number"), and next multiplied by (y) that number that is equal to the Trading ------ Day Number minus the number of Trading Days in the reduced Draw Down Pricing Period. The price per share for such additional dollar amount shall equal (i) the aggregate total of Truncated Draw Down Allocation Amounts during the reduced Draw Down Pricing Period divided by (ii) the number of Shares to be purchased during such reduced Draw Down Pricing Period. Upon receipt of the Section 6.1(m) Notice, the Purchaser may (x) elect to purchase the Common Stock at the Threshold Price for any Trading Day that the VWAP was below the Threshold Price during the reduced Draw Down Pricing Period in accordance with Section 6.1(i) hereof, (y) elect to purchase the Common Stock in the additional amount as set forth in the preceding paragraph of this Section 6.1(m), and (z) elect to exercise any unexercised Call Options by issuing a Call Option Notice to the Company, in each such case, no later than 10:00 a.m. (eastern time) on the first Trading Day after the end of the reduced Draw Down Pricing Period. The exercise price of the Call Option shall be based on the VWAP on second business day after the last Trading Day of the reduced Draw Down applicable Truncated Pricing Period (in lieu of the VWAP as specified in clause (A) of Section 6.2(b) hereof) and otherwise determined in accordance with Section 6.2(b) hereofPeriod.

Draw Down Terms. Subject to the satisfaction of the --------------- conditions set forth in this Agreement, the parties agree as follows: (a) The Company, may, in its sole discretion, issue a Draw Down Notice with respect to a Draw Down during each Draw Down Pricing Period of up to (i) $500,000 650,000 if the Threshold Price is equal to or greater than $3.00 2.00 and less than $4.003.00, (ii) an additional $750,000 200,000 for every $1.00 increase in the Threshold Price greater than $2.00 but less than $6.00, (iii) an additional $250,000 for every $1.00 increase in the Threshold Price equal to or greater than $6.00 but less than $9.00, and (iv) an additional $1,000,000 for every $3.00 increase in the Threshold Price above $8.00; provided, however, that if the Threshold Price is equal to or greater than $4.00 and less than $5.00, and (iii) $1,500,000 if the Threshold Price is equal to or greater than $5.00 and less than $7.00 and (iv) an additional $500,000 for every $2.00 increase in the Threshold Price above $5.00; provided, however, that if -------- ------- the Threshold Price is equal to or greater than $23.0038.00, the Draw Down Amount may be equal to up to $6,000,00012,000,000; provided, further, that the Company may, in -------- ------- its sole discretion, issue a Draw Down Notice with respect to any Draw Down Amount at any Threshold Price or any Draw Down Discount Percentage pursuant to terms mutually agreed upon by the Purchaser and the Company, which Draw Down the Purchaser will be obligated to accept. Notwithstanding the foregoing, the Purchaser shall not be required to accept any Draw Down Notice for which the Threshold Price is less than $5.00 after the Company and the Purchaser have completed Draw Downs, at Threshold Prices less than $5.00, in an aggregate amount of $15,000,000 or greater. Prior to issuing any Draw Down Notice, the Company shall have Shares registered under the Registration Statement which are valued in a dollar amount equal to or in excess of the Draw Down Amount. The Company may amend a Draw Down Notice to provide that a Threshold Price higher or lower than the Threshold Price then in effect (and a corresponding higher or lower Draw Down Amount and Draw Down Discount Percentage) shall apply to each day of the final ten (10) Trading Days of the Draw Down Pricing Period; provided, however, that the Company provides such amended Draw Down Notice on or before 5:00 p.m., eastern time, of the tenth (10th) Trading Day of the Draw Down Pricing Period. No such amendment shall reduce the aggregate number of Draw Downs which the Company may issue hereunder or otherwise adversely affect the Company's rights hereunder. (b) The number of Shares to be issued in connection with each Draw Down shall be equal to the sum of the quotients (for each Trading Day of the Draw Down Pricing Period for which the VWAP equals or exceeds the Threshold Price) of (x) 1/20th (or such other fraction the denominator of which equals the number of Trading Days during the Draw Down Pricing Period) of the Draw Down Amount divided by (y) the applicable Draw Down Discount Percentage multiplied by the VWAP of the Common Stock Ordinary Shares for such Trading Day. (c) Only one Draw Down shall be allowed in each Draw Down Pricing Period. Each Draw Down Pricing Period shall consist of two (2) periods of ten (10) consecutive Trading Days (each, a "Settlement Period"). (d) The number of Shares purchased by the Purchaser with respect to each Draw Down shall be determined on a daily basis during each Draw Down Pricing Period and settled on the second Trading Day following the end of each Draw Down Pricing Settlement Period (the "Settlement Date"). ---------------. (e) There shall be a minimum of five (5) Trading Days between the end of a Draw Down Pricing Period and the commencement of the next Draw Down Pricing PeriodDowns, unless otherwise mutually agreed upon between the Purchaser and the Company. (f) There shall be a maximum of eighteen (18) monthly Draw Downs during the term of this Agreement. (g) Each Draw Down will expire on the end of the last Trading Day of each Draw Down Pricing Period. (h) If the VWAP on a given Trading Day is less than the Threshold Price, then the total amount of the Draw Down for the relevant Draw Down Pricing Period will be reduced by 1/20th or such applicable fraction as determined under Section 6.1(a) hereof (or such other fraction the denominator of which equals the number of Trading Days during the Draw Down Pricing Period). At no time shall the Threshold Price be set below $3.002.00, unless mutually agreed upon by the Company and the Purchaser. If trading in the Common Stock Ordinary Shares is suspended for any reason for more than three (3) hours in any Trading Day, at the Purchaser's option, the price of the Common Stock Ordinary Shares shall be deemed to be below the Threshold Price for that Trading Day and the Draw Down for the relevant Draw Down Pricing Period shall be reduced by 1/20th or such applicable fraction as determined under Section 6.1(a) hereof (or such other fraction the denominator of which equals the number of Trading Days during the Draw Down Pricing Period). Notwithstanding anything in the foregoing to the contrary, for each Trading Day during the Draw Down Pricing Period that the VWAP is less than the Threshold Price or is deemed to be below the Threshold Price pursuant to the immediately preceding sentence, the Purchaser may elect in its sole discretion to purchase Shares at a price equal to the Threshold Price multiplied by the Draw Down Discount Percentage at the end of such Draw Down Pricing Period. The Purchaser will inform the Company via facsimile transmission no later than 8:00 p.m. (eastern time) on the last Trading Day of such Draw Down Pricing Period as to the number of Shares, if any, the Purchaser chooses to purchase under such circumstances set forth in this Section 6.1(h). (i) The Company must inform the Purchaser via facsimile transmission before 9:30 a.m. (eastern time) on the first Trading Day of the Draw Down Pricing Period in substantially in the form attached hereto as Exhibit D (the "Draw Down Notice") of the Draw Down Amount the Company wishes to exercise. In ---------------- addition to the Draw Down Amount, the Company shall set the Threshold Price with each Draw Down Notice and shall designate the first Trading Day of the Draw Down Pricing Period. Notwithstanding anything in the foregoing to the contrary, if the Company wishes the Draw Down Exercise Date to be the first day of the Draw Down Pricing Period, the Draw Down Notice must be delivered to the Purchaser and receipt of such Draw Down Notice confirmed by the Purchaser prior to 9:30 a.m. (eastern time) on the date of such Draw Down Exercise Date. (j) On each Settlement Date, the Company shall deliver the Shares purchased by the Purchaser to the Purchaser or to The Depositary Trust Company ("DTC") on the Purchaser's behalf via the Deposit Withdrawal Agent Commission system ("DWAC"), ---- and upon receipt of the Shares, the Purchaser shall cause payment therefor to be made to the account designated by the Company by wire transfer of immediately available funds provided that the Shares are received no later than 1:00 p.m., eastern time, or next day available funds if the Shares are received thereafter. (k) If during any Draw Down Pricing Period the Company shall enter into an Other Financing (other than shares of Common Stock Ordinary Shares issued under this Agreement or pursuant to a Permitted Transaction), the Purchaser may in its sole discretion (i) purchase the Draw Down Amount of shares of Common Stock Ordinary Shares and/or exercise Call Options granted during such Draw Down Pricing Period on the terms at which the Company issued shares of Common Stock Ordinary Shares in the Other Financing during such Draw Down Pricing Period, net of any third party's discount and fees; provided, however, that (y) the third party purchases Ordinary Shares at a discounted purchase price less than the purchase price to be paid by the Purchaser during such Draw Down Pricing Period, and (z) the Threshold Price in effect during such Draw Down Pricing Period is less than $12.00, (ii) purchase the Draw Down Amount of shares of Common Stock Shares and/or exercise Call Options granted during such Draw Down Pricing Period at the applicable Draw Down Discount Percentage times the VWAP for such Draw Down Pricing Period, or (iii) elect not to purchase any Shares during such Draw Down Pricing Period. The Purchaser shall notify the Company of its election on the Trading Day preceding the Settlement Date. (l) If on the Settlement Date, the Company fails to deliver the Shares to be purchased by the Purchaser, and such failure continues for ten (10) Trading Days, the Company shall pay, in cash or restricted shares of Common StockOrdinary Shares, at the option of the Purchaser, as liquidated damages and not as a penalty to the Purchaser an amount equal to two percent (2%) of the Draw Down Amount for the initial thirty (30) days and each additional thirty (30) day period thereafter until such failure has been cured, which shall be pro rated for such periods less than thirty (30) days (the "Periodic Amount"). --------------- Cash payments to be made pursuant to this clause (1) shall be due and payable immediately upon demand in immediately available cash funds. Certificates evidencing the restricted shares of Common Stock Ordinary Shares shall be delivered immediately upon demand. The parties agree that the Periodic Amount represents a reasonable estimate on the part of the parties, as of the date of this Agreement, of the amount of damages that may be incurred by the Purchaser if the Company fails to deliver the Shares on the Settlement Date. If the Purchaser elects to receive shares of Common Stock Ordinary Shares instead of cash, unless such Shares have been previously registered under the Securities Act, the Purchaser shall have the right to demand registration once within twelve (12) months of the date of issuance of such shares of Common Stock Ordinary Shares and piggyback registration rights if the Company files a separate registration statement. (m) If during any Draw Down Pricing Period the Company reasonably believes an event may occur which would require the suspension of the Registration Statement, the Company shall notify the Purchaser before commencement of trading on any Trading Day (a "Section 6.1(m) Notice") and --------------------- reduce the number of Trading Days in such Draw Down Pricing Period. The last Trading Day of such Draw Down Pricing Period shall be the Trading Day preceding the receipt of the Section 6.1(m) Notice; provided, however, that if the -------- ------- Company delivers the Section 6.1(m) Notice during trading hours on a Trading Day, then the last Trading Day of such Draw Down Pricing Period shall be the Trading Day on which the Section 6.1(m) Notice was received by the Purchaser. The Purchaser will purchase the Truncated Draw Down Allocation Amount for each of the Trading Days prior to receipt of the Section 6.1(m) Notice, for an aggregate purchase price determined in accordance with clauses (b) and (i) of this Section 6.1. In addition, the Purchaser may, at its option, elect to purchase Shares in an additional dollar amount equal to the product of the Draw Down Amount Requested, first multiplied by (x) a fraction, the numerator of which equals one (1) and the denominator of which equals eighteen (18) or such other number of Trading Days in such Draw Down Pricing Period as the parties may have mutually agreed upon with respect to such Draw Down Pricing Period (eighteen or such other mutually agreed upon number being referred to herein as the "Trading Day ----------- Number"), and next multiplied by (y) that number that is equal to the Trading ------ Day Number minus the number of Trading Days in the reduced Draw Down Pricing Period. The price per share for such additional dollar amount shall equal (i) the aggregate total of Truncated Draw Down Allocation Amounts during the reduced Draw Down Pricing Period divided by (ii) the number of Shares to be purchased during such reduced Draw Down Pricing Period. Upon receipt of the Section 6.1(m) Notice, the Purchaser may (x) elect to purchase the Common Stock at the Threshold Price for any Trading Day that the VWAP was below the Threshold Price during the reduced Draw Down Pricing Period in accordance with Section 6.1(i) hereof, (y) elect to purchase the Common Stock in the additional amount as set forth in the preceding paragraph of this Section 6.1(m), and (z) elect to exercise any unexercised Call Options by issuing a Call Option Notice to the Company, in each such case, no later than 10:00 a.m. (eastern time) on the first Trading Day after the end of the reduced Draw Down Pricing Period. The exercise price of the Call Option shall be based on the VWAP on the last Trading Day of the reduced Draw Down Pricing Period (in lieu of the VWAP as specified in clause (A) of Section 6.2(b) hereof) and otherwise determined in accordance with Section 6.2(b) hereof.

Draw Down Terms. Subject to the satisfaction of the --------------- conditions set forth in this Agreement, the parties agree as follows: (a) The Company, may, in its sole discretion, issue a Draw Down Notice at any time after February 20, 2001 with respect to a Draw Down during each Draw Down Pricing Period of up to (i) $500,000 2,000,000 if the Threshold Price is equal to or greater than $3.00 10.00 and less than $4.0014.00, (ii) $750,000 3,000,000 if the Threshold Price is equal to or greater than $4.00 14.00 and less than $5.0018.00, and (iii) $1,500,000 3,500,000 if the Threshold Price is equal to or greater than $5.00 18.00 and less than $7.00 and 22.00, (iv) an additional $500,000 for every $2.00 increase in the Threshold Price above $5.00; provided, however, that 4,000,000 if -------- ------- the Threshold Price is equal to or greater than $23.0022.00 and less than $26.00, (v) $5,000,000 if the Draw Down Amount may be Threshold Price is equal to up or greater than $26.00 and less than $30.00, and (vi) $6,000,000 if the Threshold Price is equal to or greater than $6,000,00030.00; provided, furtherHOWEVER, that the Company may, in -------- ------- its sole discretion, issue a Draw Down Notice with respect to any Draw Down Amount at any Threshold Price or any Draw Down Discount Percentage pursuant to terms mutually agreed upon by the Purchaser and the Company, which Draw Down the Purchaser will be obligated to accept. Notwithstanding the foregoing, the Purchaser shall not be required to accept any Draw Down Notice for which the Threshold Price is less than $5.00 after the Company and the Purchaser have completed Draw Downs, at Threshold Prices less than $5.00, in an aggregate amount of $15,000,000 or greater. Prior to issuing any Draw Down Notice, the Company shall have sufficient Shares registered under the Registration Statement which are valued in a dollar amount equal to or in excess of the cover any applicable Draw Down Amountand Call Option. (b) The number of Shares to be issued in connection with each Draw Down shall be equal to the sum of the quotients (for each Trading Day of the Draw Down Pricing Period for which the VWAP equals or exceeds the Threshold Price) of (x) 1/20th 1/18th (or such other fraction the denominator of which equals the number of Trading Days during the Draw Down Pricing Period) of the Draw Down Amount divided by (y) the applicable Draw Down Discount Percentage multiplied by the VWAP of the Common Stock for such Trading Day. (c) Only one Draw Down shall be allowed in each Draw Down Pricing Period. (d) The number of Shares purchased by the Purchaser with respect to each Draw Down shall be determined on a daily basis during each Draw Down Pricing Period and settled on the second Trading Day following the end of each Draw Down Pricing Period (the "Settlement DateSETTLEMENT DATE"). ---------------. (e) There shall be a minimum of five (5) Trading Days between the end of a Draw Down Pricing Period and the commencement of the next Draw Down Pricing PeriodDowns, unless otherwise mutually agreed upon between the Purchaser and the Company. (f) There shall be a maximum of eighteen (18) monthly Draw Downs during the term of this Agreement. (g) Each Draw Down will expire on the end of the last Trading Day of each Draw Down Pricing Period. (h) If the VWAP on a given Trading Day is less than the Threshold Price, then the total amount of the Draw Down for the relevant Draw Down Pricing Period will be reduced by 1/20th (or such other fraction the denominator of which equals the number of Trading Days during the Draw Down Pricing Period). At no time shall the Threshold Price be set below $3.00, unless mutually agreed upon by the Company and the Purchaser. If trading in the Common Stock is suspended for any reason for more than three (3) hours in any Trading Day, at the Purchaser's option, the price of the Common Stock shall be deemed to be below the Threshold Price for that Trading Day and the Draw Down for the relevant Draw Down Pricing Period shall be reduced by 1/20th (or such other fraction the denominator of which equals the number of Trading Days during the Draw Down Pricing Period). Notwithstanding anything in the foregoing to the contrary, for each Trading Day during the Draw Down Pricing Period that the VWAP is less than the Threshold Price or is deemed to be below the Threshold Price pursuant to the immediately preceding sentence, the Purchaser may elect in its sole discretion to purchase Shares at a price equal to the Threshold Price multiplied by the Draw Down Discount Percentage at the end of such Draw Down Pricing Period. The Purchaser will inform the Company via facsimile transmission no later than 8:00 p.m. (eastern time) on the last Trading Day of such Draw Down Pricing Period as to the number of Shares, if any, the Purchaser chooses to purchase under such circumstances set forth in this Section 6.1(h). (i) The Company must inform the Purchaser via facsimile transmission before 9:30 a.m. (eastern time) on the first Trading Day of the Draw Down Pricing Period in substantially in the form attached hereto as Exhibit D (the "Draw Down Notice") of the Draw Down Amount the Company wishes to exercise. In ---------------- addition to the Draw Down Amount, the Company shall set the Threshold Price with each Draw Down Notice and shall designate the first Trading Day of the Draw Down Pricing Period. Notwithstanding anything in the foregoing to the contrary, if the Company wishes the Draw Down Exercise Date to be the first day of the Draw Down Pricing Period, the Draw Down Notice must be delivered to the Purchaser and receipt of such Draw Down Notice confirmed by the Purchaser prior to 9:30 a.m. (eastern time) on the date of such Draw Down Exercise Date. (j) Purchaser's behalf via the Deposit Withdrawal Agent Commission system ("DWAC"), ---- and upon receipt of the Shares, the Purchaser shall cause payment therefor to be made to the account designated by the Company by wire transfer of immediately available funds provided that the Shares are received no later than 1:00 p.m., eastern time, or next day available funds if the Shares are received thereafter. (k) If during any Draw Down Pricing Period the Company shall enter into an Other Financing (other than shares of Common Stock issued under this Agreement or pursuant to a Permitted Transaction), the Purchaser may in its sole discretion (i) purchase the Draw Down Amount of shares of Common Stock and/or exercise Call Options granted during such Draw Down Pricing Period on the terms at which the Company issued shares of Common Stock in the Other Financing during such Draw Down Pricing Period, net of any third party's discount and fees, (ii) purchase the Draw Down Amount of shares of Common Stock and/or exercise Call Options granted during such Draw Down Pricing Period at the applicable Draw Down Discount Percentage times the VWAP for such Draw Down Pricing Period, or (iii) elect not to purchase any Shares during such Draw Down Pricing Period. The Purchaser shall notify the Company of its election on the Trading Day preceding the Settlement Date. (l) If on the Settlement Date, the Company fails to deliver the Shares to be purchased by the Purchaser, and such failure continues for ten (10) Trading Days, the Company shall pay, in cash or restricted shares of Common Stock, at the option of the Purchaser, as liquidated damages and not as a penalty to the Purchaser an amount equal to two percent (2%) of the Draw Down Amount for the initial thirty (30) days and each additional thirty (30) day period thereafter until such failure has been cured, which shall be pro rated for such periods less than thirty (30) days (the "Periodic Amount"). --------------- Cash payments to be made pursuant to this clause (1) shall be due and payable immediately upon demand in immediately available cash funds. Certificates evidencing the restricted shares of Common Stock shall be delivered immediately upon demand. The parties agree that the Periodic Amount represents a reasonable estimate on the part of the parties, as of the date of this Agreement, of the amount of damages that may be incurred by the Purchaser if the Company fails to deliver the Shares on the Settlement Date. If the Purchaser elects to receive shares of Common Stock instead of cash, the Purchaser shall have the right to demand registration once within twelve (12) months of the date of issuance of such shares of Common Stock and piggyback registration rights if the Company files a separate registration statement. (m) If during any Draw Down Pricing Period the Company reasonably believes an event may occur which would require the suspension of the Registration Statement, the Company shall notify the Purchaser before commencement of trading on any Trading Day (a "Section 6.1(m) Notice") and --------------------- reduce the number of Trading Days in such Draw Down Pricing Period. The last Trading Day of such Draw Down Pricing Period shall be the Trading Day preceding the receipt of the Section 6.1(m) Notice; provided, however, that if the -------- ------- Company delivers the Section 6.1(m) Notice during trading hours on a Trading Day, then the last Trading Day of such Draw Down Pricing Period shall be the Trading Day on which the Section 6.1(m) Notice was received by the Purchaser. The Purchaser will purchase the Truncated Draw Down Allocation Amount for each of the Trading Days prior to receipt of the Section 6.1(m) Notice, for an aggregate purchase price determined in accordance with clauses (b) and (i) of this Section 6.1. In addition, the Purchaser may, at its option, elect to purchase Shares in an additional dollar amount equal to the product of the Draw Down Amount Requested, first multiplied by (x) a fraction, the numerator of which equals one (1) and the denominator of which equals eighteen (18) or such other number of Trading Days in such Draw Down Pricing Period as the parties may have mutually agreed upon with respect to such Draw Down Pricing Period (eighteen or such other mutually agreed upon number being referred to herein as the "Trading Day ----------- Number"), and next multiplied by (y) that number that is equal to the Trading ------ Day Number minus the number of Trading Days in the reduced Draw Down Pricing Period. The price per share for such additional dollar amount shall equal (i) the aggregate total of Truncated Draw Down Allocation Amounts during the reduced Draw Down Pricing Period divided by (ii) the number of Shares to be purchased during such reduced Draw Down Pricing Period. Upon receipt of the Section 6.1(m) Notice, the Purchaser may (x) elect to purchase the Common Stock at the Threshold Price for any Trading Day that the VWAP was below the Threshold Price during the reduced Draw Down Pricing Period in accordance with Section 6.1(i) hereof, (y) elect to purchase the Common Stock in the additional amount as set forth in the preceding paragraph of this Section 6.1(m), and (z) elect to exercise any unexercised Call Options by issuing a Call Option Notice to the Company, in each such case, no later than 10:00 a.m. (eastern time) on the first Trading Day after the end of the reduced Draw Down Pricing Period. The exercise price of the Call Option shall be based on the VWAP on the last Trading Day of the reduced Draw Down Pricing Period (in lieu of the VWAP as specified in clause (A) of Section 6.2(b) hereof) and otherwise determined in accordance with Section 6.2(b) hereof.twenty-four