SECTION 4.12 AND (Y) THE SUM OF THE AGGREGATE
SUBSCRIPTION AMOUNTS OF SECURITIES PURCHASED ON THE CLOSING DATE BY ALL
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PURCHASERS PARTICIPATING UNDER THIS SECTION 4.12.
(F)
THE COMPANY MUST PROVIDE THE PURCHASERS WITH A SECOND SUBSEQUENT
FINANCING NOTICE, AND THE PURCHASERS WILL AGAIN HAVE THE RIGHT OF PARTICIPATION
SET FORTH ABOVE IN THIS SECTION 4.12, IF THE SUBSEQUENT FINANCING SUBJECT TO THE
INITIAL SUBSEQUENT FINANCING NOTICE IS NOT CONSUMMATED FOR ANY REASON ON THE
TERMS SET FORTH IN SUCH SUBSEQUENT FINANCING NOTICE WITHIN 30 TRADING DAYS AFTER
THE DATE OF THE INITIAL SUBSEQUENT FINANCING NOTICE.
(G)
NOTWITHSTANDING THE FOREGOING, THIS SECTION 4.12 SHALL NOT APPLY
IN RESPECT OF (I) AN EXEMPT ISSUANCE, OR (II) AN UNDERWRITTEN PUBLIC OFFERING OF
COMMON STOCK.
4.13
SUBSEQUENT EQUITY SALES.
(A)
FROM THE DATE HEREOF UNTIL 270 DAYS AFTER THE CLOSING DATE,
NEITHER THE COMPANY NOR ANY SUBSIDIARY SHALL ISSUE SHARES OF COMMON STOCK OR
COMMON STOCK EQUIVALENTS; PROVIDED, HOWEVER, THE 270 DAY PERIOD SET FORTH IN
THIS SECTION 4.13 SHALL BE EXTENDED FOR THE NUMBER OF TRADING DAYS DURING SUCH
PERIOD IN WHICH TRADING IN THE COMMON STOCK IS SUSPENDED BY ANY TRADING MARKET.
(B)
FROM THE DATE HEREOF UNTIL SUCH TIME AS NO PURCHASER HOLDS ANY OF
THE SECURITIES, THE COMPANY SHALL BE PROHIBITED FROM EFFECTING OR ENTERING INTO
AN AGREEMENT TO EFFECT ANY SUBSEQUENT FINANCING INVOLVING A VARIABLE RATE
TRANSACTION. "VARIABLE RATE TRANSACTION" MEANS A TRANSACTION IN WHICH THE
COMPANY ISSUES OR SELLS (I) ANY DEBT OR EQUITY SECURITIES THAT ARE CONVERTIBLE
INTO, EXCHANGEABLE OR EXERCISABLE FOR, OR INCLUDE THE RIGHT TO RECEIVE
ADDITIONAL SHARES OF COMMON STOCK EITHER (A) AT A CONVERSION PRICE, EXERCISE
PRICE OR EXCHANGE RATE OR OTHER PRICE THAT IS BASED UPON AND/OR VARIES WITH THE
TRADING PRICES OF OR QUOTATIONS FOR THE SHARES OF COMMON STOCK AT ANY TIME AFTER
THE INITIAL ISSUANCE OF SUCH DEBT OR EQUITY SECURITIES OR (B) WITH A CONVERSION,
EXERCISE OR EXCHANGE PRICE THAT IS SUBJECT TO BEING RESET AT SOME FUTURE DATE
AFTER THE INITIAL ISSUANCE OF SUCH DEBT OR EQUITY SECURITY OR UPON THE
OCCURRENCE OF SPECIFIED OR CONTINGENT EVENTS DIRECTLY OR INDIRECTLY RELATED TO
THE BUSINESS OF THE COMPANY OR THE MARKET FOR THE COMMON STOCK OR (II) ENTERS
INTO ANY AGREEMENT, INCLUDING, BUT NOT LIMITED TO, AN EQUITY LINE OF CREDIT,
WHEREBY THE COMPANY MAY SELL SECURITIES AT A FUTURE DETERMINED PRICE.
(C)
FROM THE DATE HEREOF UNTIL SUCH TIME AS NO PURCHASER HOLDS ANY OF
THE SECURITIES, IN THE EVENT THE COMPANY ISSUES OR SELLS ANY SHARES OF COMMON
STOCK OR COMMON STOCK EQUIVALENTS, IF A PURCHASER REASONABLY BELIEVES THAT ANY
OF THE TERMS AND CONDITIONS THEREUNDER ARE MORE FAVORABLE TO SUCH INVESTORS AS
THE TERMS AND CONDITIONS GRANTED HEREUNDER, UPON NOTICE TO THE COMPANY BY SUCH
PURCHASER THE COMPANY SHALL AMEND THE TERMS OF THIS TRANSACTION AS TO SUCH
PURCHASER ONLY SO AS TO GIVE SUCH PURCHASER THE BENEFIT OF SUCH MORE FAVORABLE
TERMS OR CONDITIONS.
(D)
NOTWITHSTANDING THE FOREGOING, THIS SECTION 4.13