ISSUE BETWEEN THE POSITION OF THE COMPANY AND THE
POSITION OF SUCH PURCHASER PARTY.
THE COMPANY WILL NOT BE LIABLE TO ANY
PURCHASER PARTY UNDER THIS AGREEMENT (I) FOR ANY SETTLEMENT BY A PURCHASER PARTY
EFFECTED WITHOUT THE COMPANY'S PRIOR WRITTEN CONSENT, WHICH SHALL NOT BE
UNREASONABLY WITHHELD OR DELAYED; OR (II) TO THE EXTENT, BUT ONLY TO THE EXTENT
THAT A LOSS, CLAIM, DAMAGE OR LIABILITY IS ATTRIBUTABLE TO ANY PURCHASER PARTY'S
BREACH OF ANY OF THE REPRESENTATIONS, WARRANTIES, COVENANTS OR AGREEMENTS MADE
BY THE PURCHASERS IN THIS AGREEMENT OR IN THE OTHER TRANSACTION DOCUMENTS.
4.12
RESERVATION AND LISTING OF SECURITIES.
(A)
THE 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 OF THE COMPANY SHALL USE COMMERCIALLY
REASONABLE EFFORTS TO
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AMEND THE COMPANY'S CERTIFICATE OR ARTICLES 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 90TH DAY AFTER SUCH DATE.
(C)
THE COMPANY SHALL, IF THEN APPLICABLE: (I) IN THE TIME AND MANNER REQUIRED
BY THE TRADING MARKET OR IF THE COMMON STOCK IS LISTED ON ANOTHER TRADING
MARKET, PROMPTLY 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 THE PURCHASERS
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.
4.13
PARTICIPATION IN FUTURE FINANCING. FROM THE DATE HEREOF UNTIL THE
SIX MONTH ANNIVERSARY OF THE EFFECTIVE DATE, UPON ANY FINANCING BY THE COMPANY
OR ANY OF ITS SUBSIDIARIES OF COMMON STOCK OR COMMON STOCK EQUIVALENTS (A
"SUBSEQUENT FINANCING"), EACH PURCHASER SHALL HAVE THE RIGHT TO PARTICIPATE IN
UP TO 100% OF THE SUBSEQUENT FINANCING (THE "PARTICIPATION MAXIMUM").
AT LEAST
5 BUSINESS DAYS PRIOR TO THE CLOSING OF THE SUBSEQUENT FINANCING, THE COMPANY
SHALL DELIVER TO EACH PURCHASER A WRITTEN NOTICE OF ITS INTENTION TO EFFECT A
SUBSEQUENT FINANCING ("PRE-NOTICE"), WHICH PRE-NOTICE SHALL ASK SUCH PURCHASER
IF IT WANTS TO REVIEW THE DETAILS OF SUCH FINANCING (SUCH ADDITIONAL NOTICE, A
"SUBSEQUENT FINANCING NOTICE").
UPON THE REQUEST OF A PURCHASER, AND ONLY UPON
A REQUEST BY SUCH PURCHASER, FOR A SUBSEQUENT FINANCING NOTICE, THE COMPANY
SHALL PROMPTLY, BUT NO LATER THAN 1 BUSINESS