FREE OF PREEMPTIVE RIGHTS, A
18
SUFFICIENT NUMBER OF SHARES OF COMMON STOCK FOR THE PURPOSE OF ENABLING THE
COMPANY TO ISSUE SHARES PURSUANT TO THIS AGREEMENT AND WARRANT SHARES PURSUANT
TO ANY EXERCISE OF THE WARRANTS.
4.6 LISTING OF COMMON STOCK. PROMPTLY FOLLOWING THE DATE HEREOF, THE COMPANY
SHALL TAKE ALL NECESSARY ACTION TO CAUSE THE SHARES AND THE WARRANT SHARES TO BE
APPROVED FOR INCLUSION IN THE NASDAQ CAPITAL MARKET.
FURTHER, IF THE COMPANY
APPLIES TO HAVE ITS COMMON STOCK OR OTHER SECURITIES TRADED ON ANY OTHER TRADING
MARKET, IT SHALL INCLUDE IN SUCH APPLICATION THE SHARES AND THE WARRANT SHARES
AND WILL TAKE SUCH OTHER ACTION AS IS NECESSARY TO CAUSE SUCH COMMON STOCK TO BE
SO LISTED.
THE COMPANY WILL USE COMMERCIALLY REASONABLE EFFORTS TO CONTINUE THE
LISTING AND TRADING OF ITS COMMON STOCK ON THE NASDAQ CAPITAL MARKET AND, IN
ACCORDANCE, THEREWITH, WILL USE COMMERCIALLY REASONABLE EFFORTS TO COMPLY IN ALL
RESPECTS WITH THE COMPANY'S REPORTING, FILING AND OTHER OBLIGATIONS APPLICABLE
TO ISSUERS WHOSE SECURITIES ARE LISTED ON SUCH MARKET.
4.7 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. 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 TO TREAT
FOR THE COMPANY THE PURCHASERS AS A CLASS AND SHALL NOT IN ANY WAY BE CONSTRUED
AS THE PURCHASERS ACTING IN CONCERT OR AS A GROUP WITH RESPECT TO THE PURCHASE,
DISPOSITION OR VOTING OF SECURITIES OR OTHERWISE.
4.8 NO NET SHORT POSITION.
EACH PURCHASER AGREES, SEVERALLY AND NOT JOINTLY
WITH ANY OTHER PURCHASERS, THAT IT OR ANY PERSON ACTING AT THE REQUEST OR
DIRECTION OF PURCHASER, WILL NOT
USE THE SHARES OR THE WARRANT SHARES TO COVER
ANY SHORT SALES (AS HEREINAFTER DEFINED) IF DOING SO WOULD BE IN VIOLATION OF
APPLICABLE SECURITIES LAWS.
FOR PURPOSES OF THIS SECTION 4.8, A "SHORT SALE" BY
ANY PURCHASER SHALL MEAN A SALE OF COMMON STOCK BY SUCH PURCHASER THAT IS MARKED
AS A SHORT SALE AND THAT IS MADE AT A TIME WHEN THERE IS NO EQUIVALENT
OFFSETTING LONG POSITION IN COMMON STOCK HELD BY SUCH PURCHASER, INCLUDING,
WITHOUT LIMITATION, ALL "SHORT SALES" AS DEFINED IN RULE 200 PROMULGATED UNDER
REGULATION SHO UNDER THE EXCHANGE ACT, WHETHER OR NOT AGAINST THE BOX, AND ALL
TYPES OF DIRECT AND INDIRECT STOCK PLEDGES, FORWARD SALES CONTRACTS, OPTIONS,
PUTS, CALLS, SHORT SALES, SWAPS, "PUT EQUIVALENT POSITIONS" (AS DEFINED IN RULE
16A-1(H) UNDER THE EXCHANGE ACT) AND SIMILAR ARRANGEMENTS (INCLUDING ON A TOTAL
RETURN BASIS) AND SALES AND OTHER TRANSACTIONS THROUGH NON-US BROKER DEALERS OR
FOREIGN REGULATED BROKERS.
ARTICLE V.
MISCELLANEOUS
5.1 FEES AND EXPENSES.
THE COMPANY AND THE PURCHASERS SHALL EACH BEAR THEIR OWN
EXPENSES IN CONNECTION WITH THE NEGOTIATION, PREPARATION, EXECUTION,