ALL ACTION NECESSARY TO AT ALL TIMES HAVE AUTHORIZED, AND RESERVED FOR THE
PURPOSE OF ISSUANCE, NO LESS THAN 130% OF THE NUMBER OF SHARES OF COMPANY COMMON
STOCK ISSUABLE UPON CONVERSION OF, OR AS PAYMENT FOR INTEREST ON, THE NOTES.
(R)
AVII.
AT THE CLOSING, THE COMPANY SHALL
DELIVER TO EACH BUYER A TRUE, CORRECT AND COMPLETE COPY OF EACH PROSPECTUS
PURSUANT TO THE AVII REGISTRATION STATEMENTS.
ANY TRANSFER OF THE AVII SHARES
BY THE COMPANY TO THE BUYERS SHALL BE MADE PURSUANT TO THE AVII REGISTRATION
STATEMENTS, RULE 144(K) OR OTHER METHOD ACCEPTABLE TO HOLDERS OF AT LEAST A
20
MAJORITY OF THE AGGREGATE PRINCIPAL AMOUNT THE NOTES THEN OUTSTANDING.
THE
COMPANY HEREBY AGREES TO USE ITS REASONABLE BEST EFFORTS TO CAUSE AVII (I)
UNLESS RULE 144(K) IS AVAILABLE AND TO BE USED IN ORDER TO TRANSFER THE AVII
SHARES BY THE COMPANY TO THE BUYERS, UNTIL THE DATE THAT THE COMPANY SHALL HAVE
TRANSFERRED THE AVII SHARES TO THE BUYERS OR NONE OF THE WARRANTS IS
OUTSTANDING, TO KEEP EACH AVII REGISTRATION STATEMENT CONTINUOUSLY EFFECTIVE
UNDER THE 1933 ACT AND, IF AND WHEN THE COMPANY DEEMS IT NECESSARY, USE
REASONABLE BEST EFFORTS TO CAUSE AVII TO FILE ONE OR MORE PROSPECTUS SUPPLEMENTS
PURSUANT TO RULE 424(B) AND (II) SO LONG AS ANY OTHER SHARES OF AVII COMMON
STOCK SHALL BE LISTED ON THE PRINCIPAL MARKET, TO MAINTAIN THE AUTHORIZATION FOR
QUOTATION ON THE PRINCIPAL MARKET OF THE AVII SHARES.
THE COMPANY SHALL TAKE
ALL ACTIONS NECESSARY SUCH THAT THE AVII SHARES SHALL REMAIN FREE OF ANY LIEN.
(S)
TRANSFER OF AVII SHARES.
UPON TRANSFER OF
ANY AVII SHARES TO A BUYER PURSUANT TO THE TERMS OF THE TRANSACTION DOCUMENTS,
THE COMPANY SHALL TAKE ALL ACTIONS NECESSARY TO TRANSFER TO BUYER, IN ACCORDANCE
WITH THE APPLICABLE TERMS OF THE TRANSACTION DOCUMENTS, THE AVII SHARES FREE AND
CLEAR OF ALL LIENS OR RESTRICTIONS SUCH THAT AFTER SUCH TRANSFER THE AVII SHARES
WILL BE UNRESTRICTED AND FREELY TRADABLE BY THE BUYER.
IN CONNECTION WITH THE
FOREGOING, THE COMPANY SHALL (I) CAUSE WILSON, SONSINI, GOODRICH & ROSATI, PC OR
OTHER COUNSEL REASONABLY ACCEPTABLE TO HOLDERS OF NOTES REPRESENTING AT LEAST A
MAJORITY OF THE AGGREGATE PRINCIPAL AMOUNT OF THE NOTES THEN OUTSTANDING TO
DELIVER TO THE TRANSFER AGENT OF AVII ANY NECESSARY LEGAL OPINION, AND (II) USE
REASONABLE BEST EFFORTS TO TAKE ANY OTHER ACTIONS REASONABLY REQUESTED BY ANY
BUYER IN CONNECTION WITH ANY SUCH TRANSFER.
(T)
ADDITIONAL ISSUANCES OF SECURITIES.
(I)
FOR PURPOSES OF THIS SECTION 4(T), THE
FOLLOWING DEFINITIONS SHALL APPLY.
(1)
"COMMON STOCK EQUIVALENTS" MEANS,
COLLECTIVELY, OPTIONS AND CONVERTIBLE SECURITIES.
(2)
"CONVERTIBLE SECURITIES" MEANS ANY STOCK OR
SECURITIES (OTHER THAN OPTIONS) CONVERTIBLE INTO OR EXERCISABLE OR EXCHANGEABLE
FOR COMMON STOCK.
(3)
"OPTIONS" MEANS ANY RIGHTS, WARRANTS OR
OPTIONS TO SUBSCRIBE FOR OR PURCHASE COMMON STOCK OR CONVERTIBLE SECURITIES.
(II)
FROM THE DATE HEREOF UNTIL THE DATE THE
REGISTRATION STATEMENT CONTEMPLATED BY THE REGISTRATION RIGHTS AGREEMENT IS
DECLARED EFFECTIVE (THE "EFFECTIVE DATE"), THE COMPANY WILL NOT, DIRECTLY OR