TO THE EFFECT OF THE FOREGOING AND, UPON RECEIPT OF SUCH SUSPENSION
NOTICE, THE INVESTOR WILL REFRAIN FROM SELLING ANY WARRANT SHARES PURSUANT TO
THE SECOND REGISTRATION STATEMENT (A "SUSPENSION") UNTIL THE INVESTOR'S RECEIPT
OF COPIES OF A SUPPLEMENTED OR AMENDED SECOND PROSPECTUS PREPARED AND FILED BY
THE COMPANY, OR UNTIL IT IS ADVISED IN WRITING BY THE COMPANY THAT THE CURRENT
SECOND PROSPECTUS MAY BE USED, AND HAS RECEIVED COPIES OF ANY ADDITIONAL OR
SUPPLEMENTAL FILINGS THAT ARE INCORPORATED OR DEEMED INCORPORATED BY REFERENCE
IN ANY SUCH SECOND PROSPECTUS.
IN THE EVENT OF ANY SUSPENSION, THE COMPANY WILL
USE ITS COMMERCIALLY REASONABLE EFFORTS TO CAUSE THE USE OF THE SECOND
PROSPECTUS SO SUSPENDED TO BE RESUMED AS SOON AS REASONABLY PRACTICABLE AFTER
THE DELIVERY OF A SUSPENSION NOTICE TO EACH HOLDER, AND IN NO EVENT SHALL THE
COMPANY BE PERMITTED TO SUSPEND THE USE OF THE SECOND REGISTRATION STATEMENT OR
THE SECOND PROSPECTUS PURSUANT TO (V) ABOVE FOR A PERIOD EXCEEDING NINETY (90)
DAYS IN ANY 365-DAY PERIOD.
IN ADDITION TO AND WITHOUT LIMITING ANY OTHER
REMEDIES (INCLUDING, WITHOUT LIMITATION, AT LAW OR AT EQUITY) AVAILABLE TO THE
INVESTOR, SUCH HOLDER SHALL BE ENTITLED TO SPECIFIC PERFORMANCE IN THE EVENT
THAT THE COMPANY FAILS TO COMPLY WITH THE PROVISIONS OF THIS SECTION 7.4(A).
(B)
AS LONG AS A SUSPENSION IS NOT THEN IN
EFFECT, EACH HOLDER MAY SELL WARRANT SHARES UNDER THE SECOND REGISTRATION
STATEMENT.
UPON RECEIPT OF A REQUEST THEREFOR, THE COMPANY WILL PROVIDE AN
ADEQUATE NUMBER OF CURRENT SECOND PROSPECTUSES TO SUCH HOLDER AND TO SUPPLY
COPIES TO ANY OTHER PARTIES REQUIRING SUCH SECOND PROSPECTUSES.
17
(C)
THE INVESTOR AGREES THAT IT WILL NOTIFY THE
COMPANY IN THE EVENT THAT IT HAS SOLD WARRANT SHARES PURSUANT TO THE SECOND
REGISTRATION STATEMENT, IN WHICH CASE THE COMPANY WILL PROVIDE INSTRUCTIONS TO
THE COMPANY'S TRANSFER AGENT SO THAT THE WARRANT SHARES MAY BE PROPERLY
TRANSFERRED.
7.5.
TRANSFER RESTRICTIONS.
FROM AND AFTER A
REGISTRATION TRIGGER DATE, THE INVESTOR SHALL NOT SELL, ASSIGN, PLEDGE, TRANSFER
OR OTHERWISE DISPOSE OF OR ENCUMBER ANY WARRANT SHARES THAT, AT THE TIME OF SUCH
SALE, CONSTITUTE "RESTRICTED SECURITIES" (AS SUCH TERM IS USED IN RULE 144),
UNLESS THE TRANSFEREE (THE "TRANSFEREE") AGREES IN WRITING TO BE BOUND BY THE
TERMS OF THIS AGREEMENT, IN WHICH CASE SUCH TRANSFEREE WILL BE DEEMED TO BE AN
"INVESTOR" FOR PURPOSES HEREOF, AND EXCEPT (I) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN WHICH CASE THE INVESTOR
SHALL NOTIFY THE COMPANY THAT IT HAS SOLD WARRANT SHARES PURSUANT TO SUCH
REGISTRATION STATEMENT (A "NOTICE OF SUBSEQUENT SALE"), OR (II) PURSUANT TO AN
AVAILABLE EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT AND APPLICABLE
STATE SECURITIES LAWS AND, IF REQUESTED BY THE COMPANY, UPON DELIVERY BY SUCH
INVESTOR OF AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY TO THE
EFFECT THAT THE PROPOSED TRANSFER IS EXEMPT FROM REGISTRATION UNDER THE
SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. THE COMPANY MAY, AND MAY
INSTRUCT ANY TRANSFER AGENT