SUCH ACTION SO TAKEN TO THE BUYERS ON OR PRIOR TO THE
CLOSING DATE.
THE COMPANY SHALL MAKE ALL FILINGS AND REPORTS RELATING TO THE
OFFER AND SALE OF THE SECURITIES REQUIRED UNDER APPLICABLE SECURITIES OR "BLUE
SKY" LAWS OF THE STATES OF THE UNITED STATES FOLLOWING THE CLOSING DATE.
(C)
REPORTING STATUS.
UNTIL THE DATE ON WHICH
THE INVESTORS (AS DEFINED IN THE REGISTRATION RIGHTS AGREEMENT) SHALL HAVE SOLD
ALL THE CONVERSION SHARES AND WARRANT SHARES AND NONE OF THE PREFERRED SHARES OR
WARRANTS IS OUTSTANDING, (THE "REPORTING PERIOD"), THE COMPANY SHALL FILE ALL
REPORTS REQUIRED TO BE FILED WITH THE SEC PURSUANT TO THE 1934 ACT, AND
15
THE COMPANY SHALL NOT TERMINATE ITS STATUS AS AN ISSUER REQUIRED TO FILE REPORTS
UNDER THE 1934 ACT EVEN IF THE 1934 ACT OR THE RULES AND REGULATIONS THEREUNDER
WOULD OTHERWISE PERMIT SUCH TERMINATION.
(D)
USE OF PROCEEDS.
THE COMPANY WILL USE THE
PROCEEDS FROM THE SALE OF THE SECURITIES FOR WORKING CAPITAL PURPOSES.
(E)
FINANCIAL INFORMATION.
THE COMPANY AGREES
TO SEND THE FOLLOWING TO EACH INVESTOR DURING THE REPORTING PERIOD UNLESS THE
FOLLOWING ARE FILED WITH THE SEC THROUGH EDGAR AND ARE AVAILABLE TO THE PUBLIC
THROUGH THE EDGAR SYSTEM, WITHIN ONE (1) BUSINESS DAY AFTER THE FILING THEREOF
WITH THE SEC, A COPY OF ITS ANNUAL REPORTS ON FORM 10-K, ITS QUARTERLY REPORTS
ON FORM 10-Q, ANY CURRENT REPORTS ON FORM 8-K AND ANY REGISTRATION STATEMENTS
(OTHER THAN ON FORM S-8) OR AMENDMENTS FILED PURSUANT TO THE 1933 ACT; PROVIDED,
THAT IN NO CASE WILL THE COMPANY BE REQUIRED TO FURNISH ANY EXHIBITS TO SUCH
REPORTS OR OTHER MATERIALS THAT ARE SUBJECT TO A CONFIDENTIAL TREATMENT
REQUEST.
"BUSINESS DAY" MEANS ANY DAY OTHER THAN SATURDAY, SUNDAY OR OTHER DAY
ON WHICH COMMERCIAL BANKS IN THE CITY OF NEW YORK ARE AUTHORIZED OR REQUIRED BY
LAW TO REMAIN CLOSED.
(F)
LISTING.
THE COMPANY SHALL PROMPTLY
SECURE THE LISTING OF ALL OF THE REGISTRABLE SECURITIES (AS DEFINED IN THE
REGISTRATION RIGHTS AGREEMENT) UPON EACH NATIONAL SECURITIES EXCHANGE AND
AUTOMATED QUOTATION SYSTEM, IF ANY, UPON WHICH SHARES OF COMMON STOCK ARE THEN
LISTED (SUBJECT TO OFFICIAL NOTICE OF ISSUANCE) AND SHALL MAINTAIN, SO LONG AS
ANY OTHER SHARES OF COMMON STOCK SHALL BE SO LISTED, SUCH LISTING OF ALL
REGISTRABLE SECURITIES FROM TIME TO TIME ISSUABLE UNDER THE TERMS OF THE
TRANSACTION DOCUMENTS.
THE COMPANY SHALL MAINTAIN THE COMMON STOCK'S
AUTHORIZATION FOR QUOTATION ON THE PRINCIPAL MARKET OR THE NASDAQ SMALLCAP
MARKET.
NEITHER THE COMPANY NOR ANY OF ITS SUBSIDIARIES SHALL TAKE ANY ACTION
WHICH WOULD BE REASONABLY EXPECTED TO RESULT IN THE COMMON STOCK NOT BEING
LISTED ON THE PRINCIPAL MARKET OR THE NASDAQ SMALLCAP MARKET.
THE COMPANY SHALL
PAY ALL FEES AND EXPENSES IN CONNECTION WITH SATISFYING ITS OBLIGATIONS UNDER
THIS SECTION 4(F).
(G)
FEES.
SUBJECT TO SECTION 8 BELOW, AT THE
CLOSING, THE COMPANY SHALL PAY BAYSTAR CAPITAL II, L.P. OR ITS DESIGNEE(S) FOR
ITS REASONABLE, ACCOUNTABLE EXPENSES IN CONNECTION WITH THE TRANSACTIONS
CONTEMPLATED HEREBY IN AN