FURTHER
ACTION AS ANY HOLDER OF SECURITIES MAY REASONABLY REQUEST, ALL TO THE EXTENT
REQUIRED FROM TIME TO TIME TO ENABLE SUCH PERSON TO SELL SUCH UNDERLYING SHARES
WITHOUT REGISTRATION UNDER THE SECURITIES ACT WITHIN THE LIMITATION OF THE
EXEMPTIONS PROVIDED BY RULE 144.
4.3.
ACKNOWLEDGMENT OF DILUTION.
THE BORROWER
ACKNOWLEDGES THAT THE ISSUANCE OF THE SECURITIES (INCLUDING THE UNDERLYING
SHARES) WILL RESULT IN DILUTION OF THE OUTSTANDING SHARES OF COMMON STOCK, WHICH
DILUTION MAY BE SUBSTANTIAL. THE BORROWER FURTHER ACKNOWLEDGES THAT ITS
OBLIGATIONS UNDER THE TRANSACTION DOCUMENTS, INCLUDING WITHOUT LIMITATION ITS
OBLIGATION TO ISSUE THE SECURITIES (INCLUDING THE UNDERLYING SHARES) PURSUANT TO
THE TRANSACTION DOCUMENTS, ARE UNCONDITIONAL AND ABSOLUTE AND NOT SUBJECT TO ANY
RIGHT OF SET OFF, COUNTERCLAIM, DELAY OR REDUCTION, REGARDLESS OF THE EFFECT OF
ANY SUCH DILUTION OR ANY CLAIM THAT THE BORROWER MAY HAVE AGAINST THE LENDER.
17
4.4.
INTEGRATION.
THE BORROWER SHALL NOT, AND
SHALL USE ITS BEST EFFORTS TO ENSURE THAT NO AFFILIATE OF THE BORROWER SHALL,
SELL, OFFER FOR SALE OR SOLICIT OFFERS TO BUY OR OTHERWISE NEGOTIATE IN RESPECT
OF ANY SECURITY (AS DEFINED IN SECTION 2 OF THE SECURITIES ACT) THAT WOULD BE
INTEGRATED WITH THE OFFER OR SALE OF THE SECURITIES IN A MANNER THAT WOULD
REQUIRE THE REGISTRATION UNDER THE SECURITIES ACT OF THE SALE OF THE SECURITIES
TO THE LENDER, OR THAT WOULD BE INTEGRATED WITH THE OFFER OR SALE OF THE
SECURITIES FOR PURPOSES OF THE RULES AND REGULATIONS OF ANY TRADING MARKET.
4.5.
LISTING OF SECURITIES.
THE BORROWER SHALL:
(I) IN THE TIME AND MANNER REQUIRED BY EACH TRADING MARKET ON WHICH THE COMMON
STOCK IS LISTED, PREPARE AND FILE WITH SUCH TRADING MARKET AN ADDITIONAL SHARES
LISTING APPLICATION COVERING THE UNDERLYING SHARES, (II) TAKE ALL STEPS
NECESSARY TO CAUSE SUCH SHARES TO BE APPROVED FOR LISTING ON EACH TRADING MARKET
ON WHICH THE COMMON STOCK IS LISTED AS SOON AS POSSIBLE THEREAFTER, (III)
PROVIDE TO THE LENDER EVIDENCE OF SUCH LISTING, AND (IV) MAINTAIN THE LISTING OF
SUCH SHARES ON EACH SUCH TRADING MARKET OR ANOTHER ELIGIBLE SECURITIES MARKET.
4.6.
RESERVATION OF SHARES.
THE BORROWER SHALL
MAINTAIN A RESERVE FROM ITS DULY AUTHORIZED SHARES OF COMMON STOCK TO COMPLY
WITH ITS CONVERSION AND EXERCISE OBLIGATIONS UNDER THE DEBENTURES AND WARRANTS
PURSUANT TO THE TRANSACTION DOCUMENTS.
IF ON ANY DATE THE BORROWER WOULD BE, IF
NOTICE OF EXERCISE OR CONVERSION WERE TO BE DELIVERED ON SUCH DATE, PRECLUDED
FROM ISSUING THE NUMBER OF UNDERLYING SHARES, AS THE CASE MAY BE, ISSUABLE UPON
EXERCISE IN FULL OF ALL OF THE WARRANTS AND ISSUABLE UPON CONVERSION IN FULL OF
THE DEBENTURES DUE TO THE UNAVAILABILITY OF A SUFFICIENT NUMBER OF AUTHORIZED
BUT UNISSUED OR RESERVED SHARES OF COMMON STOCK, THEN THE BOARD OF DIRECTORS OF
THE BORROWER SHALL PROMPTLY PREPARE AND MAIL TO THE STOCKHOLDERS OF THE BORROWER
PROXY MATERIALS OR OTHER APPLICABLE MATERIALS REQUESTING AUTHORIZATION TO AMEND
THE BORROWER'S CERTIFICATE OF INCORPORATION OR OTHER ORGANIZATIONAL DOCUMENT TO
INCREASE THE NUMBER OF SHARES OF COMMON STOCK