RESERVE AND
KEEP AVAILABLE AT ALL TIMES, FREE OF PREEMPTIVE RIGHTS, A SUFFICIENT NUMBER OF
SHARES OF COMMON STOCK FOR THE PURPOSE OF ENABLING THE COMPANY TO ISSUE SHARES
PURSUANT TO THIS AGREEMENT.
4.9
LISTING OF COMMON STOCK.
THE COMPANY HEREBY
AGREES TO USE BEST EFFORTS TO MAINTAIN THE LISTING OF THE COMMON STOCK ON A
TRADING MARKET. THE COMPANY FURTHER AGREES, IF THE COMPANY APPLIES TO HAVE THE
COMMON STOCK TRADED ON ANY OTHER TRADING MARKET, IT WILL INCLUDE IN SUCH
APPLICATION ALL OF THE SHARES AND WILL TAKE SUCH OTHER ACTION AS IS NECESSARY TO
CAUSE ALL OF THE SHARES TO BE LISTED ON SUCH OTHER TRADING MARKET AS PROMPTLY AS
POSSIBLE.
THE COMPANY WILL TAKE ALL ACTION REASONABLY NECESSARY TO CONTINUE THE
LISTING AND TRADING OF ITS COMMON STOCK ON A TRADING MARKET AND WILL COMPLY IN
ALL RESPECTS WITH THE COMPANY'S REPORTING, FILING AND OTHER OBLIGATIONS UNDER
THE BYLAWS OR RULES OF THE TRADING MARKET.
4.10
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.
4.11
SUBSEQUENT EQUITY SALES.
FROM THE DATE HEREOF
UNTIL 30 DAYS AFTER THE CLOSING DATE, NEITHER THE COMPANY NOR ANY SUBSIDIARY
SHALL ISSUE SHARES OF COMMON STOCK OR COMMON
18
STOCK EQUIVALENTS; WITHOUT THE PRIOR WRITTEN CONSENT OF EACH PURCHASER (SUCH
CONSENT NOT TO BE UNREASONABLY WITHHELD).
NOTWITHSTANDING THE FOREGOING, THIS
SECTION 4.11 SHALL NOT APPLY IN RESPECT OF AN EXEMPT ISSUANCE OR IN RESPECT OF
SHARES OF COMMON STOCK AND COMMON STOCK EQUIVALENTS WHICH THE COMPANY IS NOT
PERMITTED TO REGISTER UNDER THE SECURITIES ACT FOR AT LEAST 12 MONTHS FOLLOWING
THE CLOSING DATE.
4.12
APPROVAL OF SUBSEQUENT EQUITY SALES.
THE COMPANY
SHALL NOT ISSUE SHARES OF COMMON STOCK OR COMMON STOCK EQUIVALENTS IF SUCH
ISSUANCE WOULD REQUIRE SHAREHOLDER APPROVAL PURSUANT TO RULE 4350 OF THE NASD
MARKETPLACE RULES, UNLESS AND UNTIL SUCH SHAREHOLDER APPROVAL IS OBTAINED.
4.13
PARTICIPATION IN FUTURE FINANCING.
FROM THE DATE
HEREOF UNTIL 6 MONTHS AFTER THE CLOSING DATE, UPON ANY FINANCING BY THE COMPANY
OF ITS COMMON STOCK OR COMMON STOCK EQUIVALENTS (A "SUBSEQUENT FINANCING"), EACH
PURCHASER SHALL HAVE THE RIGHT TO PARTICIPATE IN UP TO 100% OF SUCH SUBSEQUENT
FINANCING (THE "PARTICIPATION MAXIMUM").
AT LEAST 5 TRADING DAYS PRIOR TO THE
CLOSING OF THE SUBSEQUENT FINANCING, THE COMPANY SHALL DELIVER TO EACH PURCHASER
A WRITTEN NOTICE OF ITS INTENTION TO EFFECT A SUBSEQUENT FINANCING
("PRE-NOTICE"), WHICH PRE-NOTICE SHALL ASK