COMPANY SHALL MAINTAIN A RESERVE FROM ITS DULY AUTHORIZED SHARES OF
COMMON STOCK FOR ISSUANCE PURSUANT TO THE TRANSACTION DOCUMENTS IN SUCH AMOUNT
AS MAY BE REQUIRED TO FULFILL ITS OBLIGATIONS IN FULL UNDER THE TRANSACTION
DOCUMENTS.
(B)
IF, ON ANY DATE, THE NUMBER OF AUTHORIZED BUT UNISSUED (AND OTHERWISE
UNRESERVED) SHARES OF COMMON STOCK IS LESS THAN THE REQUIRED MINIMUM ON SUCH
DATE, THEN THE BOARD OF DIRECTORS SHALL USE COMMERCIALLY REASONABLE EFFORTS TO
AMEND THE COMPANY'S CERTIFICATE OF INCORPORATION TO INCREASE THE NUMBER OF
AUTHORIZED BUT UNISSUED SHARES OF COMMON STOCK TO AT LEAST THE REQUIRED MINIMUM
AT SUCH TIME, AS SOON AS POSSIBLE AND IN ANY EVENT NOT LATER THAN THE 75TH DAY
AFTER SUCH DATE.
(C)
THE COMPANY SHALL, IF APPLICABLE: (I) IN THE TIME AND MANNER REQUIRED BY
THE TRADING MARKET, PREPARE AND FILE WITH SUCH TRADING MARKET AN ADDITIONAL
SHARES LISTING APPLICATION COVERING A NUMBER OF SHARES OF COMMON STOCK AT LEAST
EQUAL TO THE REQUIRED MINIMUM ON THE DATE OF SUCH APPLICATION, (II) TAKE ALL
STEPS NECESSARY TO CAUSE SUCH SHARES OF COMMON STOCK TO BE APPROVED FOR LISTING
ON THE TRADING MARKET AS SOON AS POSSIBLE THEREAFTER, (III) PROVIDE TO EACH
PURCHASER EVIDENCE OF SUCH LISTING, AND (IV) MAINTAIN THE LISTING OF SUCH COMMON
STOCK ON ANY DATE AT LEAST EQUAL TO THE REQUIRED MINIMUM ON SUCH DATE ON SUCH
TRADING MARKET OR ANOTHER TRADING MARKET.
4.11
SHORT SALES AND CONFIDENTIALITY AFTER THE DATE HEREOF.
EACH
PURCHASER COVENANTS THAT NEITHER IT NOR ANY AFFILIATES ACTING ON ITS BEHALF OR
PURSUANT TO ANY UNDERSTANDING WITH IT WILL EXECUTE ANY SHORT SALES DURING THE
PERIOD FROM THE DATE HEREOF UNTIL THE EARLIER OF SUCH TIME AS (I) AFTER THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT ARE FIRST PUBLICLY ANNOUNCED OR
(II) THIS AGREEMENT IS TERMINATED IN FULL.
EACH PURCHASER COVENANTS THAT UNTIL
SUCH TIME AS THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT ARE PUBLICLY
DISCLOSED BY THE COMPANY AS DESCRIBED IN SECTION 4.6, SUCH PURCHASER WILL
MAINTAIN THE CONFIDENTIALITY OF ALL DISCLOSURES MADE TO IT IN CONNECTION WITH
THIS
23
TRANSACTION (INCLUDING THE EXISTENCE AND TERMS OF THIS TRANSACTION).
EACH
PURCHASER UNDERSTANDS AND ACKNOWLEDGES
THAT THE COMMISSION CURRENTLY TAKES THE
POSITION THAT COVERAGE OF SHORT SALES OF SHARES OF THE COMMON STOCK "AGAINST THE
BOX" PRIOR TO EFFECTIVENESS OF A RESALE REGISTRATION STATEMENT WITH SECURITIES
INCLUDED IN SUCH REGISTRATION STATEMENT WOULD BE A VIOLATION OF SECTION 5 OF THE
SECURITIES ACT, AS SET FORTH IN ITEM 65, SECTION 5 UNDER SECTION A, OF THE
MANUAL OF PUBLICLY AVAILABLE TELEPHONE INTERPRETATIONS, DATED JULY 1997,
COMPILED BY THE OFFICE OF CHIEF COUNSEL, DIVISION OF CORPORATION FINANCE.
NOTWITHSTANDING THE FOREGOING, IN THE CASE OF A PURCHASER THAT IS A
MULTI-MANAGED INVESTMENT VEHICLE WHEREBY SEPARATE PORTFOLIO MANAGERS MANAGE
SEPARATE PORTIONS OF SUCH PURCHASER'S ASSETS AND THE PORTFOLIO MANAGERS HAVE NO
DIRECT KNOWLEDGE OF THE INVESTMENT DECISIONS MADE BY THE PORTFOLIO MANAGERS
MANAGING OTHER PORTIONS OF SUCH PURCHASER'S ASSETS, THE COVENANT SET FORTH ABOVE
SHALL ONLY APPLY WITH RESPECT TO