SUCH SUBSEQUENT FINANCING NOTICE WITHIN 60 TRADING DAYS AFTER
THE DATE OF THE INITIAL SUBSEQUENT FINANCING NOTICE.
(G)
NOTWITHSTANDING THE FOREGOING, THIS SECTION 4.13 SHALL NOT APPLY
IN RESPECT OF (I) AN EXEMPT ISSUANCE OR (II) AN UNDERWRITTEN PUBLIC OFFERING OF
COMMON STOCK.
4.14
SUBSEQUENT EQUITY SALES.
(A)
FROM THE DATE HEREOF UNTIL 90 DAYS AFTER THE EFFECTIVE DATE,
NEITHER THE COMPANY NOR ANY SUBSIDIARY SHALL ISSUE SHARES OF COMMON STOCK OR
COMMON STOCK EQUIVALENTS; PROVIDED, HOWEVER, THE 90 DAY PERIOD SET FORTH IN THIS
SECTION 4.14 SHALL BE EXTENDED FOR THE NUMBER OF TRADING DAYS DURING SUCH PERIOD
IN WHICH (I) TRADING IN THE COMMON STOCK IS SUSPENDED BY ANY TRADING MARKET, OR
(II) FOLLOWING THE EFFECTIVE DATE, THE REGISTRATION STATEMENT IS NOT EFFECTIVE
OR THE PROSPECTUS INCLUDED IN THE REGISTRATION STATEMENT MAY NOT BE USED BY THE
PURCHASERS FOR THE RESALE OF THE UNDERLYING SHARES.
(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" WITHOUT THE PRIOR WRITTEN CONSENT OF THE PURCHASERS.
THE TERM
"VARIABLE RATE TRANSACTION" SHALL
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MEAN 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, EXERCISE 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)
NOTWITHSTANDING THE FOREGOING, THIS SECTION 4.14 SHALL NOT APPLY
IN RESPECT OF AN EXEMPT ISSUANCE, EXCEPT THAT NO VARIABLE RATE TRANSACTION SHALL
BE AN EXEMPT ISSUANCE.
4.15
EQUAL TREATMENT OF PURCHASERS.
NO CONSIDERATION SHALL BE OFFERED
OR PAID TO ANY PERSON TO AMEND OR CONSENT TO A WAIVER OR MODIFICATION OF ANY
PROVISION OF ANY OF THE TRANSACTION DOCUMENTS UNLESS THE SAME CONSIDERATION IS
ALSO OFFERED TO ALL OF THE PARTIES TO THE TRANSACTION DOCUMENTS. FURTHER, THE
COMPANY SHALL NOT MAKE ANY PAYMENT OF PRINCIPAL OR INTEREST ON THE DEBENTURES IN
AMOUNTS WHICH ARE DISPROPORTIONATE TO THE RESPECTIVE PRINCIPAL AMOUNTS
OUTSTANDING ON THE DEBENTURES AT ANY APPLICABLE TIME.
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 COMPANY TO