THEIR RESPECTIVE COUNSEL.
(6)
ANY OFFERED SECURITIES NOT
ACQUIRED BY THE BUYERS OR OTHER PERSONS IN ACCORDANCE WITH
SECTION 4(O)(III)(3) ABOVE MAY NOT BE ISSUED, SOLD OR EXCHANGED UNTIL THEY ARE
AGAIN OFFERED TO THE BUYERS UNDER THE PROCEDURES SPECIFIED IN THIS AGREEMENT.
(7)
THE COMPANY AND THE BUYERS
AGREE THAT IF ANY BUYER ELECTS TO PARTICIPATE IN THE OFFER, NEITHER THE
SECURITIES PURCHASE AGREEMENT (THE "SUBSEQUENT
23
PLACEMENT AGREEMENT") WITH RESPECT TO SUCH OFFER NOR ANY OTHER TRANSACTION
DOCUMENTS RELATED THERETO (COLLECTIVELY, THE "SUBSEQUENT PLACEMENT DOCUMENTS")
SHALL INCLUDE ANY TERM OR PROVISIONS WHEREBY ANY BUYER SHALL BE REQUIRED TO
AGREE TO ANY RESTRICTIONS IN TRADING AS TO ANY SECURITIES OF THE COMPANY OWNED
BY SUCH BUYER PRIOR TO SUCH SUBSEQUENT PLACEMENT.
(8)
NOTWITHSTANDING ANYTHING TO
THE CONTRARY IN THIS SECTION 4(O) AND UNLESS OTHERWISE AGREED TO BY THE BUYERS,
THE COMPANY SHALL EITHER CONFIRM IN WRITING TO THE BUYERS THAT THE TRANSACTION
WITH RESPECT TO THE SUBSEQUENT PLACEMENT HAS BEEN ABANDONED OR SHALL PUBLICLY
DISCLOSE ITS INTENTION TO ISSUE THE OFFERED SECURITIES, IN EITHER CASE IN SUCH A
MANNER SUCH THAT THE BUYERS WILL NOT BE IN POSSESSION OF MATERIAL NON-PUBLIC
INFORMATION, BY THE TENTH (10TH) BUSINESS DAY FOLLOWING DELIVERY OF THE OFFER
NOTICE. IF BY THE TENTH (10TH) BUSINESS DAY FOLLOWING DELIVERY OF THE OFFER
NOTICE NO PUBLIC DISCLOSURE REGARDING A TRANSACTION WITH RESPECT TO THE OFFERED
SECURITIES HAS BEEN MADE, AND NO NOTICE REGARDING THE ABANDONMENT OF SUCH
TRANSACTION HAS BEEN RECEIVED BY THE BUYERS, SUCH TRANSACTION SHALL BE DEEMED TO
HAVE BEEN ABANDONED AND THE BUYERS SHALL NOT BE DEEMED TO BE IN POSSESSION OF
ANY MATERIAL, NON-PUBLIC INFORMATION WITH RESPECT TO THE COMPANY. SHOULD THE
COMPANY DECIDE TO PURSUE SUCH TRANSACTION WITH RESPECT TO THE OFFERED
SECURITIES, THE COMPANY SHALL PROVIDE EACH BUYER WITH ANOTHER OFFER NOTICE AND
EACH BUYER WILL AGAIN HAVE THE RIGHT OF PARTICIPATION SET FORTH IN THIS
SECTION 4(O)(III). THE COMPANY SHALL NOT BE PERMITTED TO DELIVER MORE THAN ONE
SUCH OFFER NOTICE TO THE BUYERS IN ANY 60 DAY PERIOD.
(9)
THE RESTRICTIONS CONTAINED IN
SUBSECTIONS (II) AND (III) OF THIS SECTION 4(O) SHALL NOT APPLY IN CONNECTION
WITH THE ISSUANCE OF ANY EXCLUDED SECURITIES (AS DEFINED IN THE CERTIFICATE OF
DESIGNATIONS).
5.
REGISTER; TRANSFER AGENT INSTRUCTIONS.
(A)
REGISTER. THE COMPANY SHALL MAINTAIN AT ITS
PRINCIPAL EXECUTIVE OFFICES (OR SUCH OTHER OFFICE OR AGENCY OF THE COMPANY AS IT
MAY DESIGNATE BY NOTICE TO EACH HOLDER OF SECURITIES), A REGISTER FOR THE
PREFERRED SHARES AND THE WARRANTS IN WHICH THE COMPANY SHALL RECORD THE NAME AND
ADDRESS OF THE PERSON IN WHOSE NAME THE PREFERRED SHARES AND THE WARRANTS HAVE
BEEN ISSUED (INCLUDING THE NAME AND ADDRESS OF EACH TRANSFEREE), THE NUMBER OF
PREFERRED SHARES HELD BY SUCH PERSON, THE NUMBER OF CONVERSION SHARES ISSUABLE
UPON CONVERSION OF THE PREFERRED SHARES AND WARRANT SHARES ISSUABLE UPON
EXERCISE OF THE WARRANTS HELD BY SUCH PERSON. THE COMPANY SHALL KEEP THE
REGISTER OPEN AND AVAILABLE AT ALL TIMES DURING BUSINESS HOURS