UNLESS IT IS SET FORTH IN A
WRITING DULY EXECUTED BY THE COMPANY.
ARTICLE V
ADDITIONAL AGREEMENTS
5.1.
Compliance with Agreements.
The Company shall
perform and observe (a) all of its obligations to each holder of the Series A
Preferred Shares and all of its obligations to each holder of the Conversion
Common Shares set forth in the Certificate of Incorporation (including the
Certificate of Designation) and the By-laws and (b) all of its obligations to
each holder of Registrable Securities (as defined in the Registration Rights
Agreement) set forth in the Registration Rights Agreement.
The Company shall
not hereafter enter into any agreement that violates, or prevents the Company
from performing its obligations under, this Agreement, the Certificate of
Designation or the Registration Rights Agreement.
5.2.
REPORTING STATUS; CURRENT PUBLIC INFORMATION.
THE COMPANY SHALL COMPLY WITH ALL APPLICABLE LAWS, RULES AND REGULATIONS OF ALL
GOVERNMENTAL AUTHORITIES, INCLUDING THE RULES AND REGULATIONS UNDER THE
SECURITIES ACT AND THE EXCHANGE ACT, AND THE RULES OF ANY SECURITIES EXCHANGE
UPON WHICH ANY SHARES OF ITS CAPITAL STOCK ARE LISTED AND/OR NASDAQ, EXCEPT
WHERE THE FAILURE TO DO SO WOULD NOT HAVE A MATERIAL ADVERSE EFFECT.
THE
COMPANY SHALL USE COMMERCIALLY REASONABLE EFFORTS TO MAINTAIN (A) ITS STATUS AS
A COMPANY WITH SECURITIES REGISTERED UNDER SECTION 12 OF THE EXCHANGE ACT AND
(B) THE QUOTATION OF THE COMMON STOCK ON THE NASDAQ NATIONAL MARKET.
THE
COMPANY SHALL TAKE SUCH ACTION AND PROVIDE SUCH INFORMATION REGARDING THE
COMPANY AS THE INVESTOR MAY REASONABLY REQUEST TO ENABLE THE INVESTOR TO SELL
RESTRICTED SECURITIES PURSUANT TO RULE 144 ADOPTED BY THE SEC UNDER THE
SECURITIES ACT (AS SUCH RULE MAY BE AMENDED FROM TIME TO TIME) OR ANY SIMILAR
RULE OR REGULATION HEREAFTER ADOPTED BY THE SEC.
UPON REQUEST, THE COMPANY
SHALL DELIVER TO ANY HOLDER OF RESTRICTED SECURITIES A WRITTEN STATEMENT AS TO
WHETHER IT HAS COMPLIED WITH SUCH REQUIREMENTS.
5.3.
RESERVATION OF COMMON STOCK.
THE COMPANY SHALL
AT ALL TIMES RESERVE AND KEEP AVAILABLE OUT OF ITS AUTHORIZED BUT UNISSUED
SHARES OF COMMON STOCK, SOLELY FOR THE PURPOSE OF ISSUANCE UPON THE CONVERSION
OF THE SERIES A PREFERRED SHARES, SUCH NUMBER OF SHARES OF COMMON STOCK AS SHALL
FROM TIME TO TIME BE SUFFICIENT TO EFFECT THE FULL CONVERSION OF ALL OUTSTANDING
SERIES A PREFERRED SHARES, AND IF AT ANY TIME THE NUMBER OF AUTHORIZED BUT
UNISSUED SHARES OF COMMON STOCK SHALL NOT BE SUFFICIENT TO EFFECT THE FULL
CONVERSION OF ALL OF THE SERIES A PREFERRED SHARES, THE COMPANY SHALL USE ITS
BEST EFFORTS TO INCREASE ITS AUTHORIZED BUT UNISSUED SHARES OF COMMON STOCK TO
SUCH NUMBER OF SHARES AS SHALL BE SUFFICIENT FOR SUCH PURPOSES.
5.4.
LISTING.
THE COMPANY SHALL PROMPTLY SECURE THE
LISTING (OR QUOTATION) OF ALL THE CONVERSION COMMON SHARES UPON EACH NATIONAL
SECURITIES EXCHANGE AND AUTOMATED QUOTATION SYSTEM UPON WHICH SHARES OF COMMON
STOCK ARE THEN LISTED (OR QUOTED) AND SHALL MAINTAIN, SO LONG AS ANY OTHER
SHARES OF COMMON STOCK SHALL BE SO LISTED (OR QUOTED), SUCH LISTING