PARTY WILL USE ITS BEST EFFORTS TO SATISFY IN
A TIMELY FASHION EACH OF THE CONDITIONS TO BE SATISFIED BY IT UNDER ARTICLES VI
AND VII OF THIS AGREEMENT.
4.2
FORM D; BLUE SKY LAWS.
THE COMPANY WILL TIMELY FILE A NOTICE OF
SALE OF SECURITIES ON FORM D WITH RESPECT TO THE SECURITIES, AS REQUIRED UNDER
REGULATION D.
THE COMPANY WILL, ON OR BEFORE THE CLOSING DATE, TAKE SUCH ACTION
AS IT REASONABLY DETERMINES TO BE NECESSARY TO QUALIFY THE SECURITIES FOR SALE
TO THE INVESTORS UNDER THIS AGREEMENT UNDER APPLICABLE SECURITIES (OR "BLUE
SKY") LAWS OF THE STATES OF THE UNITED STATES (OR TO OBTAIN AN EXEMPTION FROM
SUCH QUALIFICATION).
4.3
CONTINUED ELIGIBILITY TO USE FORM S-3.
THROUGHOUT THE
REGISTRATION PERIOD (AS DEFINED IN THE REGISTRATION RIGHTS AGREEMENT), THE
COMPANY WILL TIMELY FILE ALL REPORTS, SCHEDULES, FORMS, STATEMENTS AND OTHER
DOCUMENTS REQUIRED TO BE FILED BY IT WITH THE SEC UNDER THE REPORTING
REQUIREMENTS OF THE EXCHANGE ACT, AND THE COMPANY WILL NOT TERMINATE ITS STATUS
AS AN ISSUER REQUIRED TO FILE REPORTS UNDER THE EXCHANGE ACT EVEN IF THE
EXCHANGE ACT OR THE RULES AND REGULATIONS THEREUNDER WOULD PERMIT SUCH
TERMINATION.
THE COMPANY WILL TAKE ALL REASONABLY NECESSARY ACTION TO CONTINUE
TO MEET, THE "REGISTRANT ELIGIBILITY" REQUIREMENTS SET FORTH IN THE GENERAL
INSTRUCTIONS TO FORM S-3 TO ENABLE THE REGISTRATION OF THE REGISTRABLE
SECURITIES AS DEFINED IN THE REGISTRATION RIGHTS AGREEMENT.
4.4
EXPENSES.
THE COMPANY AND EACH INVESTOR IS LIABLE FOR, AND WILL
PAY, ITS OWN EXPENSES INCURRED IN CONNECTION WITH THE NEGOTIATION, PREPARATION,
EXECUTION AND DELIVERY OF THIS AGREEMENT AND THE OTHER AGREEMENTS TO BE EXECUTED
IN CONNECTION HEREWITH, INCLUDING, WITHOUT LIMITATION, ATTORNEYS' AND
CONSULTANTS' FEES AND EXPENSES; PROVIDED, THAT IF THE TRANSACTIONS CONTEMPLATED
HEREBY ARE CONSUMMATED, THE COMPANY WILL PAY REASONABLE FEES AND EXPENSES OF ONE
SPECIAL COUNSEL TO THE INVESTORS, NOT TO EXCEED $30,000.
4.5
FINANCIAL INFORMATION.
AS LONG AS AN INVESTOR OWNS ANY OF THE
SECURITIES OR WARRANT SHARES, THE FINANCIAL STATEMENTS OF THE COMPANY WILL BE
PREPARED IN ACCORDANCE WITH UNITED STATES
10
generally accepted accounting principles, consistently applied, and will fairly
present in all material respects the consolidated financial position of the
Company and results of its operations and cash flows as of, and for the periods
covered by, such financial statements (subject, in the case of unaudited
statements, to normal year-end audit adjustments).
4.6
NOTIFICATION OF CERTAIN MATTERS.
PRIOR TO THE CLOSING, EACH PARTY
HERETO SHALL GIVE PROMPT NOTICE TO THE OTHER PARTY OF THE OCCURRENCE, OR
NON-OCCURRENCE, OF ANY EVENT WHICH WOULD BE LIKELY TO CAUSE ANY REPRESENTATION
AND WARRANTY HEREIN TO BE UNTRUE OR INACCURATE, OR ANY COVENANT, CONDITION OR
AGREEMENT HEREIN NOT TO BE COMPLIED WITH OR SATISFIED.
4.7
COMPLIANCE WITH LAW.
AS LONG AS AN INVESTOR OWNS ANY OF THE
SECURITIES OR WARRANT SHARES, THE COMPANY WILL CONDUCT ITS BUSINESS IN
COMPLIANCE WITH ALL APPLICABLE LAWS, RULES AND REGULATIONS OF THE JURISDICTIONS
IN WHICH IT IS CONDUCTING BUSINESS, INCLUDING, WITHOUT LIMITATION, ALL
APPLICABLE LOCAL, STATE