REQUIRED
OF SUCH PLEDGE.
AT THE APPROPRIATE INVESTOR'S EXPENSE, THE COMPANY WILL EXECUTE
AND DELIVER SUCH REASONABLE DOCUMENTATION AS A PLEDGEE OR SECURED PARTY OF
SECURITIES MAY REASONABLY REQUEST IN CONNECTION WITH A PLEDGE OR TRANSFER OF THE
SECURITIES INCLUDING THE PREPARATION AND FILING OF ANY REQUIRED PROSPECTUS
SUPPLEMENT UNDER RULE 424(B)(3) OF THE SECURITIES ACT OR OTHER APPLICABLE
PROVISION OF THE SECURITIES ACT TO APPROPRIATELY AMEND THE LIST OF SELLING
STOCKHOLDERS THEREUNDER.
(C)
CERTIFICATES EVIDENCING THE SHARES AND WARRANT SHARES SHALL NOT
CONTAIN ANY LEGEND (INCLUDING THE LEGEND SET FORTH IN SECTION 4.1(B)): (I)
FOLLOWING A SALE OR TRANSFER OF SUCH SHARES OR WARRANT SHARES PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT (INCLUDING THE REGISTRATION STATEMENT), OR (II)
FOLLOWING A SALE OR TRANSFER OF SUCH SHARES OR WARRANT SHARES PURSUANT TO RULE
144 (ASSUMING THE TRANSFEROR IS NOT AN AFFILIATE OF THE COMPANY), OR (III) WHILE
SUCH SHARES OR WARRANT SHARES ARE ELIGIBLE FOR SALE UNDER RULE 144(K), OR (IV)
IF SUCH LEGEND IS NOT REQUIRED UNDER APPLICABLE REQUIREMENTS OF THE SECURITIES
ACT (INCLUDING JUDICIAL INTERPRETATIONS AND PRONOUNCEMENTS ISSUED BY THE STAFF
OF THE COMMISSION).
UPON THE EARLIER OF (I) THE EFFECTIVE DATE OR (II) RULE
144(K) BECOMING AVAILABLE FOR THE RESALE OF REGISTRABLE SECURITIES, COMPANY
SHALL (A) DELIVER TO THE TRANSFER AGENT FOR THE COMMON STOCK (THE "TRANSFER
AGENT") IRREVOCABLE INSTRUCTIONS THAT THE TRANSFER AGENT SHALL REISSUE A
CERTIFICATE REPRESENTING SHARES OF COMMON STOCK WITHOUT LEGENDS UPON RECEIPT BY
SUCH TRANSFER AGENT OF THE LEGENDED CERTIFICATES FOR SUCH SHARES, TOGETHER WITH
EITHER (1) A CUSTOMARY REPRESENTATION BY THE INVESTOR THAT RULE 144(K) APPLIES
TO THE SHARES OF COMMON STOCK REPRESENTED THEREBY OR (2) A STATEMENT BY THE
INVESTOR THAT SUCH INVESTOR HAS SOLD THE SHARES OF COMMON STOCK REPRESENTED
THEREBY IN ACCORDANCE WITH THE PLAN OF DISTRIBUTION CONTAINED IN THE
REGISTRATION STATEMENT, AND (B) CAUSE ITS COUNSEL TO DELIVER TO THE TRANSFER
AGENT ONE OR MORE BLANKET OPINIONS TO THE EFFECT THAT THE REMOVAL OF SUCH
LEGENDS IN SUCH CIRCUMSTANCES MAY BE EFFECTED UNDER THE SECURITIES ACT.
FROM
AND AFTER THE EARLIER OF SUCH DATES, UPON AN INVESTOR'S WRITTEN REQUEST, THE
COMPANY SHALL PROMPTLY CAUSE CERTIFICATES EVIDENCING THE INVESTOR'S SHARES TO BE
REPLACED WITH CERTIFICATES WHICH DO NOT BEAR SUCH RESTRICTIVE LEGENDS.
WHEN THE
COMPANY IS REQUIRED TO CAUSE UNLEGENDED CERTIFICATES TO REPLACE PREVIOUSLY
ISSUED LEGENDED CERTIFICATES UNDER THIS SECTION, IF UNLEGENDED CERTIFICATES ARE
NOT DELIVERED TO AN INVESTOR WITHIN THREE (3) TRADING DAYS OF SUBMISSION BY THAT
INVESTOR OF LEGENDED CERTIFICATE(S) TO THE TRANSFER AGENT AS PROVIDED ABOVE (THE
"DELIVERY DATE"), AND IF AFTER SUCH DELIVERY DATE AND PRIOR TO THE RECEIPT OF
SUCH UNLEGENDED CERTIFICATES, THE INVESTOR OR THE INVESTOR'S BROKER PURCHASES
(IN AN OPEN MARKET TRANSACTION OR OTHERWISE)
17
SHARES OF COMMON STOCK TO DELIVER IN SATISFACTION OF A SALE BY THE INVESTOR OF
THE SHARES WHICH THE INVESTOR ANTICIPATED RECEIVING UPON SUCH REQUEST (A "BUY
IN"), THEN THE COMPANY SHALL (1) PAY IN CASH TO THE INVESTOR THE AMOUNT BY WHICH
(X) THE INVESTOR'S