rights under Section 4.3 for a period of 20 days from the date of
such Investor's refusal (or the 20th day following the third Business Day on
which the Company shall have requested such agreement in writing in the event
such Investor fails to respond).
4.11
LISTING OF SECURITIES.
THE COMPANY AGREES, (I) IF THE COMPANY
APPLIES TO HAVE THE COMMON STOCK TRADED ON ANY OTHER TRADING MARKET, IT WILL
INCLUDE IN SUCH APPLICATION THE SHARES AND WARRANT SHARES, AND WILL TAKE SUCH
OTHER ACTION AS IS NECESSARY OR DESIRABLE TO CAUSE THE SHARES AND WARRANT SHARES
TO BE LISTED ON SUCH OTHER TRADING MARKET AS PROMPTLY AS POSSIBLE, AND (II) IT
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 MATERIAL RESPECTS
WITH THE COMPANY'S REPORTING, FILING AND OTHER OBLIGATIONS UNDER THE BYLAWS OR
RULES OF THE TRADING MARKET.
4.12
USE OF PROCEEDS.
THE COMPANY WILL USE THE NET PROCEEDS FROM THE
SALE OF THE SECURITIES HEREUNDER FOR WORKING CAPITAL PURPOSES AND FOR THOSE
PURPOSES SET FORTH ON SCHEDULE 4.12, AND NOT TO REDEEM ANY COMMON STOCK OR
COMMON STOCK EQUIVALENTS.
4.13
SHAREHOLDERS MEETING.
(A)
THE COMPANY WILL USE REASONABLE BEST EFFORTS TO PREPARE AND FILE
PRELIMINARY PROXY MATERIALS WITHIN 14 DAYS FOLLOWING THE INITIAL CLOSING AND
SHALL USE REASONABLE BEST EFFORTS TO HOLD A MEETING OF ITS SHAREHOLDERS (THE
"SHAREHOLDERS MEETING") NOT LATER THAN DECEMBER 14, 2004, FOR THE PURPOSE, AMONG
OTHERS, OF SEEKING APPROVAL OF THE COMPANY'S SHAREHOLDERS FOR THE ISSUANCE TO
THE INVESTORS OF THE SECURITIES PURSUANT TO THE TRANSACTION DOCUMENTS (THE
"PROPOSAL").
IN CONNECTION THEREWITH, THE COMPANY WILL USE ITS REASONABLE BEST
EFFORTS TO PROMPTLY PREPARE AND FILE WITH THE COMMISSION PROXY MATERIALS
(INCLUDING A PROXY STATEMENT AND FORM OF PROXY) FOR USE AT THE SHAREHOLDERS
MEETING AND, AFTER RECEIVING AND PROMPTLY RESPONDING TO ANY COMMENTS OF THE
COMMISSION THEREON, SHALL PROMPTLY MAIL SUCH PROXY MATERIALS TO THE SHAREHOLDERS
OF THE COMPANY.
THE COMPANY WILL COMPLY WITH SECTION 14(A) OF THE EXCHANGE ACT
AND THE RULES PROMULGATED THEREUNDER IN RELATION TO ANY PROXY STATEMENT (AS
AMENDED OR SUPPLEMENTED, THE "PROXY STATEMENT") AND ANY FORM OF PROXY TO BE SENT
TO THE SHAREHOLDERS OF THE COMPANY IN CONNECTION WITH THE SHAREHOLDERS MEETING,
AND THE PROXY STATEMENT SHALL NOT, ON THE DATE OF THE PROXY STATEMENT (OR ANY
AMENDMENT THEREOF OR SUPPLEMENT THERETO) IS FIRST MAILED TO SHAREHOLDERS OR AT
THE TIME OF THE SHAREHOLDERS MEETING, CONTAIN ANY UNTRUE STATEMENT OF A MATERIAL
FACT OR OMIT TO STATE ANY MATERIAL FACT NECESSARY IN ORDER TO MAKE THE
STATEMENTS MADE THEREIN NOT FALSE OR MISLEADING, OR OMIT TO STATE ANY MATERIAL
FACT NECESSARY TO CORRECT ANY STATEMENT IN ANY EARLIER COMMUNICATION WITH
RESPECT TO THE SOLICITATION OF PROXIES OR THE SHAREHOLDERS MEETING WHICH HAS
BECOME FALSE OR MISLEADING.
(B)
IN FURTHERANCE OF ITS OBLIGATIONS UNDER SECTION 4.13(A), THE COMPANY'S
BOARD OF DIRECTORS SHALL RECOMMEND TO THE COMPANY'S SHAREHOLDERS (AND NOT REVOKE
OR