GIVE INSTRUCTIONS TO ANY TRANSFER AGENT OF THE COMPANY THAT ENLARGE
THE RESTRICTIONS ON TRANSFER SET FORTH IN THIS SECTION.
CERTIFICATES FOR
WARRANT SHARES OR ISSUED SHARES SUBJECT TO THE LEGEND REMOVAL HEREUNDER SHALL BE
TRANSMITTED BY THE TRANSFER AGENT OF THE COMPANY TO THE PURCHASERS BY CREDITING
THE ACCOUNT OF THE PURCHASER'S PRIME BROKER WITH THE DEPOSITORY TRUST COMPANY.
(D)
IN ADDITION TO THE PURCHASERS' OTHER AVAILABLE REMEDIES, THE
COMPANY SHALL PAY TO EACH PURCHASER, IN CASH, AS PARTIAL LIQUIDATED DAMAGES AND
NOT AS A PENALTY, FOR EACH $1,000 OF WARRANT SHARES OR ISSUED SHARES (BASED ON
THE VWAP OF THE COMMON STOCK ON THE DATE SUCH SECURITIES ARE SUBMITTED TO THE
COMPANY'S TRANSFER AGENT) DELIVERED FOR REMOVAL OF THE RESTRICTIVE LEGEND AND
SUBJECT TO THIS SECTION 4.1(D), $10 PER TRADING DAY (INCREASING TO $20 PER
TRADING DAY 5 TRADING DAYS AFTER SUCH DAMAGES HAVE BEGUN TO ACCRUE) FOR EACH
TRADING DAY AFTER THE LEGEND REMOVAL DATE UNTIL SUCH CERTIFICATE IS DELIVERED
WITHOUT A LEGEND.
NOTHING HEREIN SHALL LIMIT EACH PURCHASER'S RIGHT TO PURSUE
ACTUAL DAMAGES FOR THE COMPANY'S FAILURE TO DELIVER CERTIFICATES REPRESENTING
ANY SECURITIES AS REQUIRED BY THE TRANSACTION DOCUMENTS, AND EACH PURCHASER
SHALL HAVE THE RIGHT TO PURSUE ALL REMEDIES AVAILABLE TO IT AT LAW OR IN EQUITY
INCLUDING, WITHOUT LIMITATION, A DECREE OF SPECIFIC PERFORMANCE AND/OR
INJUNCTIVE RELIEF.
(E)
EACH PURCHASER, SEVERALLY AND NOT JOINTLY WITH THE OTHER
PURCHASERS, AGREES THAT THE REMOVAL OF THE RESTRICTIVE LEGEND FROM CERTIFICATES
REPRESENTING SECURITIES AS SET FORTH IN THIS SECTION 4.1 IS PREDICATED UPON THE
COMPANY'S RELIANCE THAT SUCH PURCHASER WILL SELL ANY SECURITIES PURSUANT TO
EITHER THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, INCLUDING ANY
APPLICABLE PROSPECTUS DELIVERY REQUIREMENTS, OR AN EXEMPTION THEREFROM.
4.2
ACKNOWLEDGMENT OF DILUTION.
THE COMPANY ACKNOWLEDGES THAT THE
ISSUANCE OF THE SECURITIES MAY RESULT IN DILUTION OF THE OUTSTANDING SHARES OF
COMMON STOCK, WHICH DILUTION MAY BE SUBSTANTIAL UNDER CERTAIN MARKET
CONDITIONS.
THE COMPANY FURTHER ACKNOWLEDGES THAT ITS OBLIGATIONS UNDER THE
TRANSACTION DOCUMENTS, INCLUDING WITHOUT LIMITATION ITS OBLIGATION TO ISSUE THE
WARRANT SHARES PURSUANT TO THE TRANSACTION DOCUMENTS, ARE UNCONDITIONAL AND
ABSOLUTE AND NOT SUBJECT TO ANY RIGHT OF SET OFF, COUNTERCLAIM, DELAY OR
REDUCTION, REGARDLESS OF THE EFFECT OF ANY SUCH DILUTION OR ANY CLAIM THE
COMPANY MAY HAVE AGAINST ANY PURCHASER AND REGARDLESS OF THE DILUTIVE EFFECT
THAT SUCH ISSUANCE MAY HAVE ON THE OWNERSHIP OF THE OTHER STOCKHOLDERS OF THE
COMPANY.
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4.3
FURNISHING OF INFORMATION.
EXCEPT FOR THE PREFERRED STOCK
OFFERING, AS LONG AS ANY PURCHASER OWNS SECURITIES, THE COMPANY COVENANTS TO
TIMELY FILE (OR OBTAIN EXTENSIONS IN RESPECT THEREOF AND FILE WITHIN THE
APPLICABLE GRACE PERIOD) ALL REPORTS REQUIRED TO BE FILED BY THE COMPANY AFTER
THE DATE HEREOF PURSUANT TO THE EXCHANGE ACT.
AS LONG AS ANY PURCHASER OWNS
SECURITIES, IF THE COMPANY IS NOT REQUIRED TO FILE REPORTS PURSUANT TO THE
EXCHANGE ACT, IT WILL PREPARE AND FURNISH TO SUCH PURCHASER AND MAKE PUBLICLY
AVAILABLE IN ACCORDANCE WITH RULE 144(C) SUCH INFORMATION AS IS REQUIRED