MAY BE SUBJECT.
4.9
GOVERNMENTAL CONSENTS.
NO (A) CONSENT, APPROVAL, ORDER OR
AUTHORIZATION OF, OR (B) REGISTRATION, QUALIFICATION, DESIGNATION, DECLARATION
OR FILING WITH, ANY FEDERAL, STATE, OR LOCAL ADMINISTRATIVE, REGULATORY OR
GOVERNMENTAL AUTHORITY (EACH, A "GOVERNMENTAL AUTHORITY") OR ANY OTHER PERSON
(INCLUDING WITHOUT LIMITATION THE APPROVAL OR CONSENT OF ANY SHAREHOLDERS OF THE
COMPANY ("SHAREHOLDER APPROVAL") PURSUANT TO ANY RULE, REGULATION OR REQUIREMENT
OF THE AMERICAN STOCK EXCHANGE ("AMEX") OR UNDER THE CALIFORNIA GENERAL
CORPORATION LAW) IS REQUIRED IN CONNECTION WITH THE EXECUTION AND DELIVERY OF
THIS AGREEMENT, THE ISSUANCE AND SALE OF THE SECURITIES, THE CONSUMMATION OF THE
OTHER TRANSACTIONS CONTEMPLATED HEREBY, OR THE PERFORMANCE BY THE COMPANY OF ITS
OBLIGATIONS HEREUNDER EXCEPT FOR (I) COMPLIANCE WITH THE REQUIREMENTS OF THE
AMEX (WHICH, FOR AVOIDANCE OF DOUBT, DOES NOT REQUIRE SHAREHOLDER APPROVAL),
(II) COMPLIANCE WITH THE NOTICE FILING REQUIRED BY RULE 506 UNDER REGULATION D
OF THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND ANY
SECURITIES AND BLUE SKY LAWS IN THE STATES AND OTHER JURISDICTIONS IN WHICH
SHARES OF COMMON STOCK ARE OFFERED AND/OR SOLD, WHICH COMPLIANCE WILL BE TIMELY
EFFECTED IN ACCORDANCE WITH SUCH REQUIREMENTS AND LAWS AND (III) THE FILING OF A
REGISTRATION STATEMENT AND ALL AMENDMENTS THERETO WITH THE SEC, AND CAUSING SUCH
REGISTRATION STATEMENT TO BECOME AND REMAIN EFFECTIVE, AS CONTEMPLATED BY
SECTION 8.1 OF THIS AGREEMENT.
4.10
NO COMPANY MATERIAL ADVERSE CHANGE.
SINCE DECEMBER 31, 2002, THERE
HAS NOT BEEN A COMPANY MATERIAL ADVERSE CHANGE OR ANY EVENT, CONDITION OR
OCCURRENCE WHICH COULD REASONABLY BE EXPECTED TO HAVE A COMPANY MATERIAL ADVERSE
CHANGE.
4.11
LISTING; MAINTENANCE OF LISTING.
THE COMMON STOCK IS TRADED ON
AMEX.
THE COMPANY HAS OBTAINED LISTING APPROVAL FROM THE AMEX (AND ANY OTHER
SECURITIES EXCHANGE UPON WHICH THE COMMON STOCK IS LISTED) FOR THE LISTING OF
THE COMMON STOCK PURCHASED HEREUNDER (AND ALL WARRANT SHARES).
ALL SUCH
SECURITIES WILL BE APPROVED FOR LISTING ON THE AMEX (AND ANY OTHER SECURITIES
EXCHANGE UPON WHICH THE COMMON STOCK IS LISTED) IMMEDIATELY UPON THE
EFFECTIVENESS OF THE REGISTRATION STATEMENT REQUIRED TO BE FILED BY THE COMPANY
PURSUANT TO SECTION 8 HEREOF (THE "REGISTRATION STATEMENT").
FOR SO LONG AS THE
COMPANY IS OBLIGATED TO KEEP AND MAINTAIN THE EFFECTIVENESS OF THE REGISTRATION
STATEMENT, THE COMPANY WILL USE ITS REASONABLE BEST EFFORTS TO MAINTAIN ITS
LISTING ON THE AMEX; PROVIDED, HOWEVER, THAT THIS SECTION 4.11 SHALL NOT
PROHIBIT THE COMPANY FROM LISTING THE COMMON STOCK ON THE NASDAQ NATIONAL
MARKET, PROVIDED, THAT THE COMPANY TAKES APPROPRIATE ACTIONS TO ENSURE THAT ALL
SHARES
9
OF COMMON STOCK PURCHASED HEREUNDER (AND THE WARRANT SHARES) ALSO ARE LISTED ON
THE NASDAQ NATIONAL MARKET UPON AND AT ALL TIMES DURING THE EFFECTIVENESS OF THE
REGISTRATION STATEMENT.
4.12
BOARD MATTERS.
(A)
MDS NOMINEE.
FOR SO LONG AS THE MDS PARTIES (AS DEFINED BELOW)
ARE THE "BENEFICIAL OWNERS" (AS DEFINED IN RULE 13D-3 OF THE EXCHANGE ACT) OF A
NUMBER OF SHARES OF COMMON STOCK EQUAL TO AT LEAST 25% OF THE AGGREGATE NUMBER
OF SHARES