AND ANY OTHER REPRESENTATIONS AND
WARRANTIES MADE BY THE COMPANY IN ARTICLE III OF THE INVESTMENT AGREEMENT AND
STOCK PURCHASE AGREEMENTS TO THE EXTENT RELATING TO THE WARRANTS, ARE TRUE AND
ACCURATE IN ALL RESPECTS AND NOT MISLEADING IN ANY RESPECT.
11.
COVENANTS.
11.1
RESERVATION OF COMMON STOCK FOR ISSUANCE ON EXERCISE OF WARRANTS.
THE COMPANY COVENANTS THAT IT WILL AT ALL TIMES RESERVE AND KEEP AVAILABLE, FREE
FROM PREEMPTIVE RIGHTS, OUT OF ITS AUTHORIZED BUT UNISSUED COMMON STOCK, SOLELY
FOR THE PURPOSE OF ISSUE UPON EXERCISE OF WARRANTS AS HEREIN PROVIDED, SUCH
NUMBER OF SHARES OF COMMON STOCK AS SHALL THEN BE ISSUABLE UPON THE EXERCISE OF
ALL WARRANTS ISSUABLE HEREUNDER PLUS SUCH NUMBER OF SHARES OF COMMON STOCK AS
SHALL THEN BE ISSUABLE UPON THE EXERCISE OF OTHER OUTSTANDING WARRANTS, OPTIONS
AND RIGHTS (WHETHER OR NOT VESTED), THE SETTLEMENT OF ANY FORWARD SALE, SWAP OR
OTHER DERIVATIVE CONTRACT, AND THE CONVERSION OF ALL OUTSTANDING CONVERTIBLE
SECURITIES OR OTHER INSTRUMENTS CONVERTIBLE INTO COMMON STOCK OR RIGHTS TO
ACQUIRE COMMON STOCK. THE COMPANY COVENANTS THAT ALL SHARES OF COMMON STOCK
WHICH SHALL BE ISSUABLE SHALL, UPON SUCH ISSUE, BE DULY AND VALIDLY ISSUED AND
FULLY PAID AND NON-ASSESSABLE.
11.2
NOTICE OF DISTRIBUTIONS.
AT ANY TIME WHEN THE COMPANY DECLARES ANY
DISTRIBUTION ON ITS COMMON STOCK, IT SHALL GIVE NOTICE TO THE HOLDERS OF ALL THE
THEN OUTSTANDING WARRANTS OF ANY SUCH DECLARATION NOT LESS THAN 15 DAYS PRIOR TO
THE RELATED RECORD DATE FOR PAYMENT OF THE DISTRIBUTION SO DECLARED.
11.3
CANCELLATION OF WARRANTS.
UPON THE EFFECTIVENESS OF THE PLAN AND IN
ACCORDANCE WITH THE INVESTMENT AGREEMENT AND/OR STOCK PURCHASE AGREEMENTS, AS
APPLICABLE, THE WARRANTS, REGARDLESS OF WHETHER OR NOT VESTED, SHALL BE
CANCELLED FOR NO CONSIDERATION AND ALL RIGHTS UNDER THIS AGREEMENT AND THE
WARRANTS SHALL THEREUPON TERMINATE.
12.
MISCELLANEOUS.
12.1
MONEY AND OTHER PROPERTY DEPOSITED WITH THE WARRANT AGENT.
ANY
MONEYS, SECURITIES OR OTHER PROPERTY WHICH AT ANY TIME SHALL BE DEPOSITED BY THE
COMPANY OR ON ITS BEHALF WITH THE WARRANT AGENT PURSUANT TO THIS AGREEMENT SHALL
BE AND ARE HEREBY ASSIGNED, TRANSFERRED AND SET OVER TO THE WARRANT AGENT IN
TRUST FOR THE PURPOSE FOR WHICH SUCH MONEYS, SECURITIES OR OTHER PROPERTY SHALL
HAVE BEEN DEPOSITED; BUT SUCH MONEYS, SECURITIES OR OTHER PROPERTY NEED NOT BE
SEGREGATED FROM OTHER FUNDS, SECURITIES OR OTHER PROPERTY EXCEPT TO THE EXTENT
REQUIRED BY LAW. THE WARRANT AGENT SHALL DISTRIBUTE ANY MONEY DEPOSITED WITH IT
FOR PAYMENT AND DISTRIBUTION TO A
37
HOLDER TO AN ACCOUNT DESIGNATED BY SUCH HOLDER IN SUCH AMOUNT AS IS APPROPRIATE.
ANY MONEY DEPOSITED WITH THE WARRANT AGENT FOR PAYMENT AND DISTRIBUTION TO THE
HOLDERS THAT REMAINS UNCLAIMED FOR TWO YEARS AFTER THE DATE THE MONEY WAS
DEPOSITED WITH THE WARRANT AGENT SHALL BE PAID TO THE COMPANY.
THE WARRANT
AGENT SHALL NOT BE UNDER ANY LIABILITY FOR INTEREST ON ANY MONIES AT ANY TIME
RECEIVED BY IT PURSUANT TO ANY OF THE PROVISIONS OF THIS AGREEMENT.
12.2
PAYMENT OF TAXES.
THE COMPANY SHALL