ANNIVERSARY OF THE CLOSING DATE) TO LIST OR QUOTE
ALL OF THE SHARES AND WARRANT SHARES ON SUCH TRADING MARKET. THE COMPANY FURTHER
AGREES, IF THE COMPANY APPLIES TO HAVE THE COMMON STOCK TRADED ON ANY OTHER
TRADING MARKET, IT WILL INCLUDE IN SUCH APPLICATION ALL OF THE SHARES AND
WARRANT SHARES, AND WILL TAKE SUCH OTHER ACTION AS IS NECESSARY TO CAUSE ALL OF
THE SHARES AND WARRANT SHARES TO BE LISTED ON SUCH OTHER TRADING MARKET AS
PROMPTLY AS POSSIBLE.
THE COMPANY WILL TAKE ALL ACTION REASONABLY NECESSARY TO
CONTINUE THE LISTING OR QUOTATION AND TRADING OF ITS COMMON STOCK ON A TRADING
MARKET AND WILL COMPLY IN ALL RESPECTS WITH THE COMPANY'S REPORTING, FILING AND
OTHER OBLIGATIONS UNDER THE BYLAWS OR RULES OF THE TRADING MARKET.
4.12
EQUAL TREATMENT OF PURCHASERS.
NO CONSIDERATION
SHALL BE OFFERED OR PAID TO ANY PERSON TO AMEND OR CONSENT TO A WAIVER OR
MODIFICATION OF ANY PROVISION OF ANY OF THE TRANSACTION DOCUMENTS UNLESS THE
SAME CONSIDERATION IS ALSO OFFERED TO ALL OF THE PARTIES TO THE TRANSACTION
DOCUMENTS.
FOR CLARIFICATION PURPOSES, THIS PROVISION CONSTITUTES A SEPARATE
RIGHT
26
GRANTED TO EACH PURCHASER BY THE COMPANY AND NEGOTIATED SEPARATELY BY EACH
PURCHASER, AND IS INTENDED FOR THE COMPANY TO TREAT THE PURCHASERS AS A CLASS
AND SHALL NOT IN ANY WAY BE CONSTRUED AS THE PURCHASERS ACTING IN CONCERT OR AS
A GROUP WITH RESPECT TO THE PURCHASE, DISPOSITION OR VOTING OF SECURITIES OR
OTHERWISE.
4.13
[RESERVED].
4.14
SUBSEQUENT EQUITY SALES.
(A)
FROM THE DATE HEREOF UNTIL 45 DAYS AFTER
THE EFFECTIVE DATE, NEITHER THE COMPANY NOR ANY SUBSIDIARY SHALL ISSUE SHARES OF
COMMON STOCK OR COMMON STOCK EQUIVALENTS AT AN EFFECTIVE PER SHARE PURCHASE
PRICE THAT IS LOWER THAN THE PER SHARE PURCHASE PRICE, PROVIDED THAT, FOR
PURPOSES OF CLARITY, IF THE HOLDER OF THE COMMON STOCK OR COMMON STOCK
EQUIVALENTS SO ISSUED SHALL BE ENTITLED AT ANY TIME, WHETHER BY OPERATION OF
PURCHASE PRICE ADJUSTMENTS, RESET PROVISIONS, FLOATING CONVERSION, EXERCISE OR
EXCHANGE PRICES OR OTHERWISE, OR DUE TO WARRANTS, OPTIONS OR RIGHTS PER SHARE
THAT ARE ISSUED IN CONNECTION WITH SUCH ISSUANCE, TO RECEIVE SHARES OF COMMON
STOCK AT AN EFFECTIVE PER SHARE PURCHASE PRICE THAT IS LOWER THAN THE PER SHARE
PURCHASE PRICE, SUCH ISSUANCE SHALL BE DEEMED TO OCCURRED AT A PRICE THAT IS
LOWER THAN THE PER SHARE PURCHASE PRICE; PROVIDED, HOWEVER, THE 45 DAY PERIOD
SET FORTH IN THIS SECTION 4.14 SHALL BE EXTENDED FOR THE NUMBER OF TRADING DAYS
DURING SUCH PERIOD IN WHICH (I) TRADING IN THE COMMON STOCK IS SUSPENDED BY ANY
TRADING MARKET, OR (II) FOLLOWING THE EFFECTIVE DATE, THE REGISTRATION STATEMENT
IS NOT EFFECTIVE OR THE PROSPECTUS INCLUDED IN THE REGISTRATION STATEMENT MAY
NOT BE USED BY THE PURCHASERS FOR THE RESALE OF THE SHARES AND WARRANT SHARES.
(B)
FROM THE DATE HEREOF UNTIL THE DATE THAT IS
THE 12 MONTH ANNIVERSARY OF THE EFFECTIVE DATE, THE COMPANY SHALL BE PROHIBITED
FROM EFFECTING OR ENTERING INTO AN AGREEMENT TO