THE NASDAQ CAPITAL MARKET AND, IN ACCORDANCE, THEREWITH, WILL
USE COMMERCIALLY REASONABLE EFFORTS TO COMPLY IN ALL RESPECTS WITH THE COMPANY'S
REPORTING, FILING AND OTHER OBLIGATIONS APPLICABLE TO ISSUERS WHOSE SECURITIES
ARE LISTED ON SUCH MARKET.
4.7 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. 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 TO TREAT
FOR THE COMPANY THE PURCHASERS AS A CLASS AND SHALL NOT IN ANY WAY BE CONSTRUED
AS THE PURCHASERS ACTING IN CONCERT OR AS A GROUP WITH RESPECT TO THE PURCHASE,
DISPOSITION OR VOTING OF SECURITIES OR OTHERWISE.
4.8 NO NET SHORT POSITION.
EACH PURCHASER AGREES, SEVERALLY AND NOT JOINTLY
WITH ANY OTHER PURCHASERS, THAT IT OR ANY PERSON ACTING AT THE REQUEST OR
DIRECTION OF PURCHASER, WILL NOT
USE THE SHARES OR THE WARRANT SHARES TO COVER
ANY SHORT SALES (AS HEREINAFTER DEFINED) IF DOING SO WOULD BE IN VIOLATION OF
APPLICABLE SECURITIES LAWS.
FOR PURPOSES OF THIS SECTION 4.8, A "SHORT SALE" BY
ANY PURCHASER SHALL MEAN A SALE OF COMMON STOCK BY SUCH PURCHASER THAT IS MARKED
AS A SHORT SALE AND THAT IS MADE AT A TIME WHEN THERE IS NO EQUIVALENT
OFFSETTING LONG POSITION IN COMMON STOCK HELD BY SUCH PURCHASER, INCLUDING,
WITHOUT LIMITATION, ALL "SHORT SALES" AS DEFINED IN RULE 200 PROMULGATED UNDER
REGULATION SHO UNDER THE EXCHANGE ACT, WHETHER OR NOT AGAINST THE BOX, AND ALL
TYPES OF DIRECT AND INDIRECT STOCK PLEDGES, FORWARD SALES CONTRACTS, OPTIONS,
PUTS, CALLS, SHORT SALES, SWAPS, "PUT EQUIVALENT POSITIONS" (AS DEFINED IN RULE
16A-1(H) UNDER THE EXCHANGE ACT) AND SIMILAR ARRANGEMENTS (INCLUDING ON A TOTAL
RETURN BASIS) AND SALES AND OTHER TRANSACTIONS THROUGH NON-US BROKER DEALERS OR
FOREIGN REGULATED BROKERS.
ARTICLE V.
MISCELLANEOUS
5.1 FEES AND EXPENSES.
THE COMPANY AND THE PURCHASERS SHALL EACH BEAR THEIR OWN
EXPENSES IN CONNECTION WITH THE NEGOTIATION, PREPARATION, EXECUTION, DELIVERY
AND PERFORMANCE OF THIS AGREEMENT.
THE COMPANY SHALL PAY ALL STAMP AND OTHER
TAXES AND DUTIES LEVIED IN CONNECTION WITH THE SALE OF THE SECURITIES.
5.2 ENTIRE AGREEMENT.
THE TRANSACTION DOCUMENTS, TOGETHER WITH THE EXHIBITS AND
SCHEDULES THERETO, CONTAIN THE ENTIRE UNDERSTANDING OF THE PARTIES WITH RESPECT
TO THE SUBJECT MATTER HEREOF AND SUPERSEDE
AND VOID ALL PRIOR AGREEMENTS AND
UNDERSTANDINGS, ORAL OR WRITTEN, WITH RESPECT TO SUCH MATTERS, WHICH THE PARTIES
ACKNOWLEDGE HAVE BEEN MERGED INTO SUCH DOCUMENTS, EXHIBITS AND SCHEDULES.
5.3 NOTICES.
ANY AND ALL NOTICES OR OTHER COMMUNICATIONS OR DELIVERIES REQUIRED
OR PERMITTED TO BE PROVIDED HEREUNDER SHALL BE IN WRITING AND SHALL BE DEEMED
GIVEN AND EFFECTIVE ON
19
THE EARLIEST OF (A) THE DATE OF TRANSMISSION, IF SUCH NOTICE OR COMMUNICATION IS
DELIVERED (RECEIPT CONFIRMED) VIA FACSIMILE AT THE FACSIMILE NUMBER SET FORTH