Our common stock could be delisted from the Nasdaq Capital Market which would cause us to
become ineligible to use Form S-3 for the registration of the resale of our securities held by
certain of our security holders.
Historically, the price of our common stock has traded below $1.00 per share. If the price of
our common stock declines below $1.00 per share for 30 consecutive trading days, we may fail to
meet Nasdaqs maintenance criteria, which may result in the delisting of our common stock from the
Nasdaq Capital Market.
In the event of such delisting, trading, if any, in our common stock may then continue to be
conducted in the non-Nasdaq over-the-counter market in what are commonly referred to as the
electronic bulletin board and the ''pink sheets. As a result, an investor may find it more
difficult to dispose of or obtain accurate quotations as to the market value of our common stock.
In addition, we would be subject to a Rule promulgated by the SEC that, if we fail to meet criteria
set forth in such Rule, imposes various practice requirements on broker-dealers who sell securities
governed by the Rule to persons other than established customers and accredited investors. For
these types of transactions, the broker-dealer must make a special suitability determination for
the purchaser and have received the purchasers written consent to the transactions prior to the
sale. Consequently, the Rule may have a material adverse effect on the ability of broker-dealers to
sell our securities, which may materially affect the ability of stockholders to sell our securities
in the secondary market.
A delisting from the Nasdaq Capital Market will also make us ineligible to use Form S-3 to
register the sale of shares of our common stock or to register the resale of our securities held by
certain of our security holders with the SEC, thereby making it more difficult and expensive for us
to register our common stock or other securities and raise additional capital. We are a party to
certain registration rights agreements, which require us to maintain the effectiveness of
registration statements relating to the resale of shares of common stock issuable upon the exercise
of outstanding warrants. If we are ineligible to use Form S-3, we will need to file new
registration statements on some other permitted Form and maintaining the effectiveness of such
registration statements may be more difficult, expensive and time-consuming.
Our certificate of incorporation, our bylaws, our shareholder rights plan and Delaware law make it
difficult for a third party to acquire us, despite the possible benefit to our stockholders.
Provisions of our certificate of incorporation, our bylaws, our shareholder rights plan and
Delaware law could make it more difficult for a third party to acquire us, even if doing so would
be beneficial to our stockholders. For example, our certificate of incorporation provides for a
classified board of directors, meaning that only approximately one-third of our directors may be
subject to re-election at each annual stockholder meeting. Our certificate of incorporation also
permits our Board of Directors to issue one or more series of preferred stock, which may have
rights and preferences superior to those of the common stock. The ability to issue preferred stock
could have the effect of delaying or preventing a third party from acquiring us. We have also
adopted a shareholder rights plan. These provisions could discourage takeover attempts and could
materially adversely affect the price of our stock. In addition, because we are incorporated in
Delaware, we are governed by the provisions of Section 203 of the Delaware General Corporation Law,
which may prohibit large stockholders from consummating a merger with, or acquisition of us. These
provisions may prevent a merger or acquisition that would be attractive to stockholders and could
limit the price that investors would be willing to pay in the future for our common stock.
There are limitations on the liabilities of our directors and executive officers.
Pursuant to our bylaws and under Delaware law, our directors are not liable to us or our
stockholders for monetary damages for breach of fiduciary duty, except for liability for breach of
a directors duty of loyalty, acts or omissions by a director not in good faith or which involve
intentional misconduct or a knowing violation of law, or any transaction in which a director has
derived an improper personal benefit.