UPON TRANSFER IN ACCORDANCE WITH THE
APPLICABLE TRANSACTION DOCUMENTS, THE COMPANY WILL TRANSFER TO THE BUYERS GOOD
AND MARKETABLE TITLE TO SUCH AVII SHARES, FREE AND CLEAR OF ANY LIENS.
UPON ANY
SUCH TRANSFER IN ACCORDANCE WITH THE APPLICABLE TRANSACTION DOCUMENTS TO THE
BUYERS OF ANY AVII SHARES, THE AVII SHARES SHALL BE UNRESTRICTED AND FREELY
TRADABLE ON THE PRINCIPAL MARKET WITHOUT ANY DELIVERY OR OTHER REQUIREMENTS
WHATSOEVER AND WITHOUT THE NEED TO MAKE ANY REGISTRATION OR OTHER FILING WITH
THE SEC.
(III)
THE COMPANY HAS NO LEGAL OBLIGATION, ABSOLUTE OR CONTINGENT, TO
ANY OTHER PERSON TO TRANSFER OR SELL ANY OF THE AVII SHARES.
THERE IS NO
ACTION, CLAIM, SUIT, INVESTIGATION OR PROCEEDING PENDING OR, TO THE KNOWLEDGE OF
THE COMPANY, THREATENED BY OR AGAINST OR AFFECTING THE COMPANY OR THE COMPANY'S
OWNERSHIP OF THE AVII SHARES BEFORE ANY COURT OR GOVERNMENTAL OR REGULATORY
AUTHORITY OR BODY, THAT COULD EFFECT THE ABILITY OF THE COMPANY TO PLEDGE AND
TRANSFER TO THE BUYERS ANY AVII SHARES.
THERE ARE NO WRITS, DECREES,
INJUNCTIONS OR ORDERS OF ANY COURT OR GOVERNMENTAL OR REGULATORY AGENCY,
AUTHORITY OR BODY OUTSTANDING AGAINST THE COMPANY WITH RESPECT TO THE AVII
SHARES.
4.
COVENANTS.
(A)
BEST EFFORTS.
EACH PARTY SHALL USE ITS BEST EFFORTS TIMELY TO SATISFY EACH
OF THE CONDITIONS TO BE SATISFIED BY IT AS PROVIDED IN SECTIONS 6 AND 7 OF THIS
AGREEMENT.
(B)
FORM D AND BLUE SKY.
THE COMPANY AGREES TO FILE A FORM D WITH RESPECT TO
THE SECURITIES AS REQUIRED UNDER REGULATION D AND TO PROVIDE A COPY THEREOF TO
EACH BUYER PROMPTLY AFTER SUCH FILING.
THE COMPANY SHALL, ON OR BEFORE THE
CLOSING DATE, TAKE SUCH ACTION AS THE COMPANY SHALL REASONABLY DETERMINE IS
NECESSARY IN ORDER TO OBTAIN AN EXEMPTION FOR OR TO QUALIFY THE SECURITIES FOR
SALE TO THE BUYERS AT THE CLOSING PURSUANT TO THIS AGREEMENT UNDER APPLICABLE
SECURITIES OR "BLUE SKY" LAWS OF THE STATES OF THE UNITED STATES (OR TO OBTAIN
AN EXEMPTION FROM SUCH QUALIFICATION), AND SHALL PROVIDE EVIDENCE OF ANY SUCH
ACTION SO TAKEN TO THE BUYERS ON OR PRIOR TO THE CLOSING DATE.
THE COMPANY
SHALL MAKE ALL FILINGS AND REPORTS RELATING TO THE OFFER AND SALE OF THE
SECURITIES REQUIRED UNDER APPLICABLE SECURITIES OR "BLUE SKY" LAWS OF THE STATES
OF THE UNITED STATES FOLLOWING THE CLOSING DATE.
(C)
REPORTING STATUS.
EXCEPT AS SET FORTH IN SECTION 6 OF THE NOTES OR AS SET
FORTH IN SECTION 4(B) OF THE WARRANTS, UNTIL THE DATE ON WHICH THE INVESTORS (AS
DEFINED IN THE REGISTRATION RIGHTS AGREEMENT) SHALL HAVE SOLD ALL THE CONVERSION
SHARES, INTEREST SHARES AND WARRANT SHARES AND NONE OF THE NOTES OR WARRANTS IS
OUTSTANDING (THE "REPORTING PERIOD"), THE COMPANY SHALL FILE ALL REPORTS
REQUIRED TO BE FILED WITH THE SEC PURSUANT TO THE 1934 ACT, AND THE COMPANY
SHALL NOT TERMINATE ITS STATUS AS AN ISSUER REQUIRED TO FILE REPORTS UNDER THE
1934 ACT EVEN IF THE 1934 ACT OR THE RULES AND REGULATIONS THEREUNDER WOULD
OTHERWISE PERMIT