AGREES
TO MAINTAIN THE ELIGIBILITY OF THE COMMON STOCK FOR ELECTRONIC TRANSFER THROUGH
THE DEPOSITORY TRUST COMPANY OR ANOTHER ESTABLISHED CLEARING CORPORATION,
INCLUDING, WITHOUT LIMITATION, BY TIMELY PAYMENT OF FEES TO THE DEPOSITORY TRUST
COMPANY OR SUCH OTHER ESTABLISHED CLEARING CORPORATION IN CONNECTION WITH SUCH
ELECTRONIC TRANSFER.
4.11
[RESERVED]
4.12
SUBSEQUENT EQUITY SALES.
(A)
FROM THE DATE HEREOF UNTIL THIRTY (30) DAYS FOLLOWING THE
CLOSING DATE, NEITHER THE COMPANY NOR ANY SUBSIDIARY SHALL ISSUE, ENTER INTO ANY
AGREEMENT TO ISSUE OR ANNOUNCE THE ISSUANCE OR PROPOSED ISSUANCE OF ANY SHARES
OF COMMON STOCK OR COMMON STOCK EQUIVALENTS.
(B)
FROM THE DATE HEREOF UNTIL THE ONE (1) YEAR ANNIVERSARY OF THE
CLOSING DATE, THE COMPANY SHALL BE PROHIBITED FROM EFFECTING OR ENTERING INTO AN
AGREEMENT TO EFFECT ANY ISSUANCE BY THE COMPANY OR ANY OF ITS SUBSIDIARIES OF
COMMON STOCK OR COMMON STOCK EQUIVALENTS (OR A COMBINATION OF UNITS THEREOF)
INVOLVING A VARIABLE RATE TRANSACTION.
"VARIABLE RATE TRANSACTION" MEANS A
TRANSACTION IN WHICH THE COMPANY (I) ISSUES OR SELLS 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, OR EFFECTS A TRANSACTION UNDER, ANY
AGREEMENT, INCLUDING, BUT NOT LIMITED TO, AN EQUITY LINE OF CREDIT, WHEREBY THE
COMPANY MAY ISSUE SECURITIES AT A FUTURE DETERMINED PRICE; PROVIDED, HOWEVER,
THAT, AFTER NINETY (90) DAYS FOLLOWING THE CLOSING DATE, THE ISSUANCE OF SHARES
OF COMMON STOCK IN AN "AT THE MARKET" OFFERING WITH H.C. WAINWRIGHT & CO., LLC
AS SALES AGENT SHALL NOT BE DEEMED A VARIABLE RATE TRANSACTION.
ANY PURCHASER
SHALL BE ENTITLED TO OBTAIN INJUNCTIVE RELIEF AGAINST THE COMPANY TO PRECLUDE
ANY SUCH ISSUANCE, WHICH REMEDY SHALL BE IN ADDITION TO ANY RIGHT TO COLLECT
DAMAGES.
(C)
NOTWITHSTANDING THE FOREGOING, THIS SECTION 4.12 SHALL NOT
APPLY IN RESPECT OF AN EXEMPT ISSUANCE, EXCEPT THAT NO VARIABLE RATE TRANSACTION
SHALL BE AN EXEMPT ISSUANCE.
4.13
EQUAL TREATMENT OF PURCHASERS.
NO CONSIDERATION (INCLUDING ANY
MODIFICATION OF THIS AGREEMENT) SHALL BE OFFERED OR PAID TO ANY PERSON TO AMEND
OR CONSENT TO A WAIVER OR MODIFICATION OF ANY PROVISION OF THIS AGREEMENT UNLESS
THE SAME CONSIDERATION IS ALSO OFFERED TO ALL OF THE PARTIES TO THIS AGREEMENT.
FOR CLARIFICATION PURPOSES, THIS PROVISION CONSTITUTES A SEPARATE RIGHT GRANTED
TO EACH PURCHASER BY THE COMPANY AND NEGOTIATED SEPARATELY BY EACH PURCHASER,
AND IS INTENDED FOR THE