A SECOND SUBSEQUENT
FINANCING NOTICE, AND THE PURCHASERS WILL AGAIN HAVE THE RIGHT OF PARTICIPATION
SET FORTH ABOVE IN THIS SECTION 4.13, IF THE SUBSEQUENT FINANCING SUBJECT TO THE
INITIAL SUBSEQUENT FINANCING NOTICE IS NOT CONSUMMATED FOR ANY REASON ON
SUBSTANTIALLY THE TERMS SET FORTH IN SUCH SUBSEQUENT FINANCING NOTICE WITHIN 60
TRADING DAYS AFTER THE DATE OF THE INITIAL SUBSEQUENT FINANCING NOTICE.
(G)
NOTWITHSTANDING THE FOREGOING, THIS SECTION 4.13 SHALL NOT APPLY
IN RESPECT OF AN EXEMPT ISSUANCE.
4.14
SUBSEQUENT EQUITY SALES.
(A)
FROM THE DATE HEREOF UNTIL SUCH TIME AS NO PURCHASER HOLDS ANY OF
THE SECURITIES, THE COMPANY SHALL BE PROHIBITED FROM EFFECTING OR ENTERING INTO
AN AGREEMENT TO EFFECT ANY SUBSEQUENT FINANCING INVOLVING A "VARIABLE RATE
TRANSACTION".
THE TERM "VARIABLE RATE TRANSACTION" SHALL MEAN A TRANSACTION IN
WHICH (I) THE COMPANY ISSUES OR SELLS ANY DEBT OR EQUITY SECURITIES THAT ARE
CONVERTIBLE INTO, EXCHANGEABLE OR EXERCISABLE FOR, OR INCLUDE THE RIGHT TO
RECEIVE ADDITIONAL SHARES OF COMMON STOCK EITHER (A) AT A CONVERSION, EXERCISE
OR EXCHANGE RATE OR OTHER PRICE THAT IS BASED UPON AND/OR VARIES WITH THE
TRADING PRICES OF OR QUOTATIONS FOR THE SHARES OF COMMON STOCK AT ANY TIME AFTER
THE INITIAL ISSUANCE OF SUCH DEBT OR EQUITY SECURITIES, OR (B) WITH A
CONVERSION, EXERCISE OR EXCHANGE PRICE THAT IS SUBJECT TO BEING RESET AT SOME
FUTURE DATE AFTER THE INITIAL ISSUANCE OF SUCH DEBT OR EQUITY SECURITY OR UPON
THE OCCURRENCE OF SPECIFIED OR CONTINGENT EVENTS DIRECTLY OR INDIRECTLY RELATED
TO THE BUSINESS OF THE COMPANY OR THE MARKET FOR THE COMMON STOCK OR (II) ENTERS
INTO ANY AGREEMENT, INCLUDING, BUT NOT LIMITED TO, AN EQUITY LINE OF CREDIT,
WHEREBY THE COMPANY MAY SELL SECURITIES AT A FUTURE DETERMINED PRICE.
(B)
NOTWITHSTANDING THE FOREGOING, THIS SECTION 4.14 SHALL NOT APPLY
IN RESPECT OF (I) AN EXEMPT ISSUANCE, EXCEPT THAT NO VARIABLE RATE TRANSACTION
SHALL BE AN EXEMPT ISSUANCE, AND (II) AN ISSUANCE OF DEBENTURES AND WARRANTS ON
THE SAME TERMS AND CONDITIONS AS THE ISSUANCE OF DEBENTURES AND WARRANTS
HEREUNDER FOR GROSS PROCEEDS OF UP TO, IN THE AGGREGATE, THE DIFFERENCE BETWEEN
THE GROSS PROCEEDS RAISED HEREUNDER AND $2,200,000 DURING THE PERIOD COMMENCING
ON THE DATE HEREOF AND ENDING ON THE FILING DATE.
4.15
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. FURTHER, THE
COMPANY SHALL NOT MAKE ANY PAYMENT OF PRINCIPAL OR
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INTEREST ON THE DEBENTURES IN AMOUNTS WHICH ARE DISPROPORTIONATE TO THE
RESPECTIVE PRINCIPAL AMOUNTS OUTSTANDING ON THE DEBENTURES AT ANY APPLICABLE
TIME.
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 FOR THE COMPANY TO TREAT THE PURCHASERS AS A CLASS
AND SHALL NOT IN ANY WAY BE CONSTRUED AS THE