BE INTEGRATED WITH THE OFFER OR SALE OF THE SECURITIES FOR PURPOSES OF THE
RULES AND REGULATIONS OF ANY TRADING MARKET.
4.4
RESERVATION OF SECURITIES.
THE COMPANY SHALL MAINTAIN A RESERVE
FROM ITS DULY AUTHORIZED SHARES OF COMMON STOCK FOR ISSUANCE PURSUANT TO THE
TRANSACTION DOCUMENTS IN SUCH AMOUNT AS MAY BE REQUIRED TO FULFILL ITS
OBLIGATIONS IN FULL UNDER THE TRANSACTION DOCUMENTS.
IN THE EVENT THAT AT ANY
TIME THE THEN AUTHORIZED SHARES OF COMMON STOCK ARE INSUFFICIENT FOR THE COMPANY
TO SATISFY ITS OBLIGATIONS IN FULL UNDER THE TRANSACTION DOCUMENTS, THE COMPANY
SHALL PROMPTLY TAKE SUCH ACTIONS AS MAY BE REQUIRED TO INCREASE THE NUMBER OF
AUTHORIZED SHARES.
4.5
SUBSEQUENT PLACEMENTS.
(A)
EXCEPT WITH RESPECT TO THE EXCLUDED STOCK, FROM THE DATE HEREOF
UNTIL THE EFFECTIVE DATE, THE COMPANY WILL NOT, DIRECTLY OR INDIRECTLY, OFFER,
SELL, GRANT ANY OPTION TO PURCHASE, OR OTHERWISE DISPOSE OF (OR ANNOUNCE ANY
OFFER, SALE, GRANT OR ANY OPTION TO PURCHASE OR OTHER DISPOSITION OF) ANY OF ITS
OR THE SUBSIDIARIES' EQUITY OR EQUITY EQUIVALENT SECURITIES, INCLUDING WITHOUT
LIMITATION ANY DEBT, PREFERRED STOCK OR OTHER INSTRUMENT OR SECURITY THAT IS, AT
ANY TIME DURING ITS LIFE AND UNDER ANY CIRCUMSTANCES, CONVERTIBLE INTO OR
EXCHANGEABLE OR EXERCISABLE FOR COMMON STOCK OR COMMON STOCK EQUIVALENTS (ANY
SUCH OFFER, SALE, GRANT, DISPOSITION OR ANNOUNCEMENT BEING REFERRED TO AS A
"SUBSEQUENT PLACEMENT").
(B)
FROM THE EFFECTIVE DATE UNTIL THE ONE YEAR ANNIVERSARY THEREOF,
THE COMPANY WILL NOT, DIRECTLY OR INDIRECTLY, EFFECT ANY SUBSEQUENT PLACEMENT
UNLESS THE COMPANY SHALL HAVE FIRST COMPLIED WITH THIS SECTION 4.5(B).
(I)
THE COMPANY SHALL DELIVER TO EACH PURCHASER A WRITTEN NOTICE (THE
"OFFER") OF ANY PROPOSED OR INTENDED ISSUANCE OR SALE OR EXCHANGE OF THE
SECURITIES BEING OFFERED (THE "OFFERED SECURITIES") IN A SUBSEQUENT PLACEMENT,
WHICH OFFER SHALL (W) IDENTIFY AND DESCRIBE THE OFFERED SECURITIES, (X) DESCRIBE
THE PRICE AND OTHER TERMS UPON WHICH THEY ARE TO BE ISSUED, SOLD OR EXCHANGED,
AND THE NUMBER OR AMOUNT OF THE OFFERED
15
SECURITIES TO BE ISSUED, SOLD OR EXCHANGED, (Y) IDENTIFY THE PERSONS OR ENTITIES
TO WHICH OR WITH WHICH THE OFFERED SECURITIES ARE TO BE OFFERED, ISSUED, SOLD OR
EXCHANGED AND (Z) OFFER TO ISSUE AND SELL TO OR EXCHANGE WITH EACH PURCHASER (A)
A PRO RATA PORTION OF THE GREATER OF (1) ALL OF THE OFFERED SECURITIES BUT NOT
EXCEEDING $10 MILLION OF SUCH OFFERED SECURITIES AND (2) 50% OF THE OFFERED
SECURITIES, BASED ON SUCH PURCHASER'S PRO RATA PORTION OF THE AGGREGATE PURCHASE
PRICE PAID BY THE PURCHASERS FOR ALL OF THE SHARES PURCHASED HEREUNDER (THE
"BASIC AMOUNT"), AND (B) WITH RESPECT TO EACH PURCHASER THAT ELECTS TO PURCHASE
ITS BASIC AMOUNT, ANY ADDITIONAL PORTION OF THE OFFERED SECURITIES ATTRIBUTABLE
TO THE BASIC AMOUNTS OF OTHER PURCHASERS AS SUCH PURCHASER SHALL INDICATE IT
WILL PURCHASE OR ACQUIRE SHOULD THE OTHER PURCHASERS SUBSCRIBE FOR LESS THAN
THEIR BASIC AMOUNTS (THE "UNDERSUBSCRIPTION AMOUNT").
(II)
TO ACCEPT AN OFFER, IN WHOLE OR IN PART, A
PURCHASER MUST DELIVER A WRITTEN NOTICE TO