LISTING MAINTENANCE REQUIREMENTS OF SUCH EXCHANGE OR MARKET;
(III) ON EACH DAY DURING THE EQUITY CONDITIONS MEASURING PERIOD, THE COMPANY
SHALL HAVE DELIVERED COMMON STOCK UPON CONVERSION OF THE PREFERRED SHARES TO THE
HOLDERS ON A TIMELY BASIS AS SET FORTH IN SECTION 2(D)(II) HEREOF, RESPECTIVELY;
(IV) ANY APPLICABLE SHARES OF COMMON STOCK TO BE ISSUED IN CONNECTION WITH THE
EVENT REQUIRING DETERMINATION MAY BE ISSUED IN FULL WITHOUT VIOLATING SECTION 7
HEREOF OR THE RULES OR REGULATIONS OF THE APPLICABLE PRINCIPAL MARKET AND FROM
AND AFTER THE STOCKHOLDER MEETING DEADLINE (AS DEFINED IN THE SECURITIES
PURCHASE AGREEMENT), THE COMPANY SHALL HAVE OBTAINED THE STOCKHOLDER APPROVAL
(AS DEFINED IN THE SECURITIES PURCHASE AGREEMENT); (V) DURING THE EQUITY
CONDITIONS MEASURING PERIOD, THE COMPANY SHALL NOT HAVE FAILED TO TIMELY MAKE
ANY PAYMENTS WITHIN FIVE (5) BUSINESS DAYS OF WHEN SUCH PAYMENT IS DUE PURSUANT
TO ANY TRANSACTION DOCUMENT (AS DEFINED IN THE SECURITIES PURCHASE AGREEMENT);
(VI) DURING THE EQUITY CONDITIONS MEASURING PERIOD, THERE SHALL NOT HAVE
OCCURRED EITHER (A) THE PUBLIC ANNOUNCEMENT OF A PENDING, PROPOSED OR INTENDED
FUNDAMENTAL TRANSACTION WHICH HAS NOT BEEN ABANDONED, TERMINATED OR CONSUMMATED
OR (B) A TRIGGERING EVENT OR AN EVENT THAT WITH THE PASSAGE OF TIME OR GIVING OF
NOTICE WOULD CONSTITUTE A TRIGGERING EVENT; (VII) THE COMPANY SHALL HAVE NO
KNOWLEDGE OF ANY FACT THAT WOULD CAUSE (X) THE REGISTRATION STATEMENTS REQUIRED
PURSUANT TO THE REGISTRATION RIGHTS AGREEMENT NOT TO BE EFFECTIVE AND AVAILABLE
FOR THE RESALE OF AT LEAST ALL OF THE REGISTRABLE SECURITIES IN ACCORDANCE WITH
THE TERMS OF THE REGISTRATION RIGHTS AGREEMENT OR (Y) ANY SHARES OF COMMON STOCK
ISSUABLE UPON CONVERSION OF THE PREFERRED SHARES NOT TO BE ELIGIBLE FOR SALE
WITHOUT RESTRICTION PURSUANT TO RULE 144(K) AND ANY APPLICABLE STATE SECURITIES
LAWS; AND (VIII) THE COMPANY OTHERWISE SHALL HAVE BEEN IN MATERIAL COMPLIANCE
WITH AND SHALL NOT HAVE MATERIALLY BREACHED ANY PROVISION, COVENANT,
REPRESENTATION OR WARRANTY OF ANY TRANSACTION DOCUMENT.
6
(XXV)
"EQUITY INTERESTS" MEANS CAPITAL STOCK AND ALL WARRANTS, OPTIONS OR
OTHER RIGHTS TO ACQUIRE CAPITAL STOCK.
(XXVI)
"EXCLUDED SECURITIES" MEANS ANY COMMON STOCK ISSUED OR ISSUABLE OR
DEEMED TO BE ISSUED IN ACCORDANCE WITH SECTION 2(F) HEREOF BY THE COMPANY: (I)
IN CONNECTION WITH ANY APPROVED STOCK PLAN; (II) UPON CONVERSION OF THE
PREFERRED SHARES; (III) UPON EXERCISE OF THE WARRANTS (AS DEFINED IN THE
SECURITIES PURCHASE AGREEMENT), (IV) PURSUANT TO A BONA FIDE FIRM COMMITMENT
UNDERWRITTEN PUBLIC OFFERING WITH A NATIONALLY RECOGNIZED UNDERWRITER WHICH
GENERATES GROSS PROCEEDS TO THE COMPANY IN EXCESS OF $50,000,000 (OTHER THAN AN
"AT-THE-MARKET OFFERING" AS DEFINED IN RULE 415(A)(4) UNDER THE 1933 ACT AND
"EQUITY LINES"); (V) IN CONNECTION WITH ANY STRATEGIC ACQUISITION OR TRANSACTION
WHETHER THROUGH AN ACQUISITION OF STOCK OR A MERGER OF ANY BUSINESS, ASSETS OR
TECHNOLOGIES THE PRIMARY PURPOSE OF WHICH IS NOT TO RAISE EQUITY CAPITAL; (VI)
UPON CONVERSION, EXERCISE OR EXCHANGE OF ANY OPTIONS OR CONVERTIBLE SECURITIES
WHICH ARE OUTSTANDING ON THE DAY IMMEDIATELY PRECEDING THE SUBSCRIPTION DATE,
PROVIDED THAT SUCH ISSUANCE OF COMMON