IS LESS THAN THE REQUIRED MINIMUM ON SUCH
DATE, THEN THE BOARD OF DIRECTORS SHALL USE COMMERCIALLY REASONABLE EFFORTS TO
AMEND THE COMPANY'S CERTIFICATE OR ARTICLES OF INCORPORATION TO INCREASE THE
NUMBER OF AUTHORIZED BUT UNISSUED SHARES OF COMMON STOCK TO AT LEAST THE
REQUIRED MINIMUM AT SUCH TIME, AS SOON AS POSSIBLE AND IN ANY EVENT NOT LATER
THAN THE 75TH DAY AFTER SUCH DATE.
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(C) THE COMPANY SHALL, IF APPLICABLE: (I) IN THE TIME AND MANNER REQUIRED BY THE
PRINCIPAL TRADING MARKET, PREPARE AND FILE WITH SUCH TRADING MARKET AN
ADDITIONAL SHARES LISTING APPLICATION COVERING A NUMBER OF SHARES OF COMMON
STOCK AT LEAST EQUAL TO THE REQUIRED MINIMUM ON THE DATE OF SUCH APPLICATION,
(II) TAKE ALL STEPS NECESSARY TO CAUSE SUCH SHARES OF COMMON STOCK TO BE
APPROVED FOR LISTING ON SUCH TRADING MARKET AS SOON AS POSSIBLE THEREAFTER,
(III) PROVIDE TO THE PURCHASERS EVIDENCE OF SUCH LISTING, AND (IV) MAINTAIN THE
LISTING OF SUCH COMMON STOCK ON ANY DATE AT LEAST EQUAL TO THE REQUIRED MINIMUM
ON SUCH DATE ON SUCH TRADING MARKET OR ANOTHER TRADING MARKET.
4.12 PARTICIPATION IN FUTURE FINANCING.
(A) FROM THE DATE HEREOF UNTIL THE DATE THAT IS THE 12 MONTH ANNIVERSARY OF THE
EFFECTIVE DATE, UPON ANY ISSUANCE BY THE COMPANY OR ANY OF ITS SUBSIDIARIES OF
COMMON STOCK OR COMMON STOCK EQUIVALENTS (A "SUBSEQUENT FINANCING"), EACH
PURCHASER SHALL HAVE THE RIGHT TO PARTICIPATE IN UP TO AN AMOUNT OF THE
SUBSEQUENT FINANCING EQUAL TO 50% OF THE SUBSEQUENT FINANCING (THE
"PARTICIPATION MAXIMUM") ON THE SAME TERMS, CONDITIONS AND PRICE PROVIDED FOR IN
THE SUBSEQUENT FINANCING.
(B) AT LEAST 5 TRADING DAYS PRIOR TO THE CLOSING OF THE SUBSEQUENT FINANCING,
THE COMPANY SHALL DELIVER TO EACH PURCHASER A WRITTEN NOTICE OF ITS INTENTION TO
EFFECT A SUBSEQUENT FINANCING ("PRE-NOTICE"), WHICH PRE-NOTICE SHALL ASK SUCH
PURCHASER IF IT WANTS TO REVIEW THE DETAILS OF SUCH FINANCING (SUCH ADDITIONAL
NOTICE, A "SUBSEQUENT FINANCING NOTICE").
UPON THE REQUEST OF A PURCHASER, AND
ONLY UPON A REQUEST BY SUCH PURCHASER, FOR A SUBSEQUENT FINANCING NOTICE, THE
COMPANY SHALL PROMPTLY, BUT NO LATER THAN 1 TRADING DAY AFTER SUCH REQUEST,
DELIVER A SUBSEQUENT FINANCING NOTICE TO SUCH PURCHASER.
THE SUBSEQUENT
FINANCING NOTICE SHALL DESCRIBE IN REASONABLE DETAIL THE PROPOSED TERMS OF SUCH
SUBSEQUENT FINANCING, THE AMOUNT OF PROCEEDS INTENDED TO BE RAISED THEREUNDER
AND THE PERSON OR PERSONS THROUGH OR WITH WHOM SUCH SUBSEQUENT FINANCING IS
PROPOSED TO BE EFFECTED AND SHALL INCLUDE A TERM SHEET OR SIMILAR DOCUMENT
RELATING THERETO AS AN ATTACHMENT.
(C) ANY PURCHASER DESIRING TO PARTICIPATE IN SUCH SUBSEQUENT FINANCING MUST
PROVIDE WRITTEN NOTICE TO THE COMPANY BY NOT LATER THAN 5:30 P.M. (NEW YORK CITY
TIME) ON THE 5TH TRADING DAY AFTER ALL OF THE PURCHASERS HAVE RECEIVED THE
PRE-NOTICE THAT THE PURCHASER IS WILLING TO PARTICIPATE IN THE SUBSEQUENT
FINANCING, THE AMOUNT OF THE PURCHASER'S PARTICIPATION, AND THAT THE PURCHASER
HAS SUCH FUNDS READY, WILLING, AND AVAILABLE FOR INVESTMENT ON THE TERMS SET
FORTH IN THE SUBSEQUENT