ACCORDINGLY WILL NOT SELL
OR OTHERWISE TRANSFER THE SHARES, THE WARRANTS OR THE WARRANT SHARES OR ANY
INTEREST THEREIN WITHOUT COMPLYING WITH THE REQUIREMENTS OF THE SECURITIES ACT.
EXCEPT AS OTHERWISE PROVIDED BELOW, WHILE ANY REGISTRATION STATEMENT REMAINS
EFFECTIVE, EACH PURCHASER HEREUNDER MAY SELL THE SHARES AND WARRANT SHARES IN
ACCORDANCE WITH THE PLAN OF DISTRIBUTION CONTAINED IN SUCH REGISTRATION
STATEMENT AND IF IT DOES SO IT WILL COMPLY THEREWITH AND WITH THE RELATED
PROSPECTUS DELIVERY REQUIREMENTS UNLESS AN EXEMPTION THEREFROM IS AVAILABLE.
EACH PURCHASER, SEVERALLY AND NOT JOINTLY WITH THE OTHER PURCHASERS, AGREES THAT
IF IT IS NOTIFIED BY THE COMPANY IN WRITING AT ANY TIME THAT THE REGISTRATION
STATEMENT REGISTERING THE RESALE OF THE SHARES OR THE WARRANT SHARES IS NOT
EFFECTIVE OR THAT THE PROSPECTUS INCLUDED IN SUCH REGISTRATION STATEMENT NO
LONGER COMPLIES WITH THE REQUIREMENTS OF SECTION 10 OF THE SECURITIES ACT, THE
PURCHASER WILL REFRAIN FROM SELLING SUCH SHARES AND WARRANT SHARES UNTIL
17
SUCH TIME AS THE PURCHASER IS NOTIFIED BY THE COMPANY THAT SUCH REGISTRATION
STATEMENT IS EFFECTIVE OR SUCH PROSPECTUS IS COMPLIANT WITH SECTION 10 OF THE
SECURITIES ACT, UNLESS SUCH PURCHASER IS ABLE TO, AND DOES, SELL SUCH SHARES OR
WARRANT SHARES PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF SECTION 5 OF THE SECURITIES ACT.
BOTH THE COMPANY AND ITS
TRANSFER AGENT, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS,
MAY RELY ON THIS SECTION 4.1(D).
(E)
BUY-IN.
IF THE COMPANY SHALL FAIL FOR ANY REASON OR FOR NO REASON
TO ISSUE TO A PURCHASER UNLEGENDED CERTIFICATES WITHIN THREE (3) TRADING DAYS OF
RECEIPT OF ALL DOCUMENTS NECESSARY FOR THE REMOVAL OF THE LEGEND SET FORTH ABOVE
(THE "DEADLINE DATE"), THEN, IN ADDITION TO ALL OTHER REMEDIES AVAILABLE TO SUCH
PURCHASER, IF ON OR AFTER THE TRADING DAY IMMEDIATELY FOLLOWING SUCH THREE
(3) TRADING DAY PERIOD, SUCH PURCHASER PURCHASES (IN AN OPEN MARKET TRANSACTION
OR OTHERWISE) SHARES OF COMMON STOCK TO DELIVER IN SATISFACTION OF A SALE BY THE
HOLDER OF SHARES OF COMMON STOCK THAT SUCH PURCHASER ANTICIPATED RECEIVING FROM
THE COMPANY WITHOUT ANY RESTRICTIVE LEGEND (A "BUY-IN"), THEN THE COMPANY SHALL,
WITHIN THREE (3) TRADING DAYS AFTER SUCH PURCHASER'S REQUEST AND IN SUCH
PURCHASER'S SOLE DISCRETION, EITHER (I) PAY CASH TO THE PURCHASER IN AN AMOUNT
EQUAL TO SUCH PURCHASER'S TOTAL PURCHASE PRICE (INCLUDING BROKERAGE COMMISSIONS,
IF ANY) FOR THE SHARES OF COMMON STOCK SO PURCHASED (THE "BUY-IN PRICE"), AT
WHICH POINT THE COMPANY'S OBLIGATION TO DELIVER SUCH CERTIFICATE (AND TO ISSUE
SUCH SHARES OF COMMON STOCK) SHALL TERMINATE, OR (II) PROMPTLY HONOR ITS
OBLIGATION TO DELIVER TO SUCH PURCHASER A CERTIFICATE OR CERTIFICATES
REPRESENTING SUCH SHARES OF COMMON STOCK AND PAY CASH TO THE PURCHASER IN AN
AMOUNT EQUAL TO THE EXCESS (IF ANY) OF THE BUY-IN PRICE OVER THE PRODUCT OF
(A) SUCH NUMBER OF SHARES OF COMMON STOCK, TIMES (B) THE CLOSING BID PRICE ON
THE DEADLINE DATE.
4.2
Acknowledgment of Dilution.
The Company acknowledges that the
issuance of the Securities may