ON THE ELIGIBLE MARKET AND SHALL NOT HAVE BEEN SUSPENDED FROM TRADING
ON SUCH EXCHANGE OR MARKET (OTHER THAN SUSPENSIONS OF NOT MORE THAN TWO DAYS AND
OCCURRING PRIOR TO THE APPLICABLE DATE OF DETERMINATION DUE TO BUSINESS
ANNOUNCEMENTS BY THE COMPANY) NOR SHALL DELISTING OR SUSPENSION BY SUCH EXCHANGE
OR MARKET BEEN THREATENED OR PENDING EITHER (A) IN WRITING BY SUCH EXCHANGE OR
MARKET OR (B) BY FALLING BELOW THE MINIMUM LISTING MAINTENANCE REQUIREMENTS OF
SUCH EXCHANGE OR MARKET; (III) ON EACH DAY DURING THE EQUITY CONDITIONS
MEASURING PERIOD, THE COMPANY SHALL HAVE DELIVERED CONVERSION SHARES UPON
CONVERSION OF THE SHARES OF SERIES A PREFERRED STOCK AND COMMON SHARES UPON
EXERCISE OF THE WARRANTS TO THE HOLDERS ON A TIMELY BASIS AS SET FORTH IN
SECTION 3(C)(II) HEREOF AND SECTION 1(A) OF THE WARRANTS; (IV) ANY APPLICABLE
COMMON SHARES TO BE ISSUED IN CONNECTION WITH THE EVENT REQUIRING DETERMINATION
MAY BE ISSUED IN FULL WITHOUT VIOLATING SECTION 6 HEREOF, SECTION 14 HEREOF OR
THE RULES OR REGULATIONS OF THE APPLICABLE ELIGIBLE MARKET; (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; (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 COMMON SHARES ISSUABLE UPON
CONVERSION OF THE SHARES OF SERIES A PREFERRED STOCK AND COMMON SHARES ISSUABLE
UPON
5
EXERCISE OF THE WARRANTS NOT TO BE ELIGIBLE FOR SALE WITHOUT RESTRICTION
PURSUANT TO RULE 144(K) AND ANY APPLICABLE STATE SECURITIES LAWS; (VIII) THE
HOLDERS SHALL NOT BE IN POSSESSION OF MATERIAL NON-PUBLIC INFORMATION PROVIDED
TO THEM BY THE COMPANY OR ANY OF ITS AFFILIATES; AND (IX) 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.
(XX)
"EXCLUDED SECURITIES" MEANS COMMON SHARES
ISSUED OR DEEMED TO BE ISSUED BY THE COMPANY, OR OPTIONS: (A) IN CONNECTION WITH
AN APPROVED SHARE PLAN OR AS CONSIDERATION IN AN APPROVED ACQUISITION AND COMMON
SHARES THAT MAY BE ISSUED AS PART OF AN EARN-OUT PURSUANT TO AN APPROVED
ACQUISITION (THE "EARN-OUT SHARES"); PROVIDED, HOWEVER, THAT THE COMMON SHARES
OR EARN-OUT SHARES ISSUED OR DEEMED ISSUED AS CONSIDERATION IN ANY SUCH APPROVED
ACQUISITION MUST BE ISSUED FOR CONSIDERATION NO LESS THAN 85% OF THE ARITHMETIC
AVERAGE OF THE WEIGHTED AVERAGE PRICE