TO BE STATED THEREIN OR NECESSARY IN ORDER TO
MAKE THE STATEMENTS THEREIN, IN THE LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY
WERE MADE, NOT MISLEADING.
NO EVENT OR CIRCUMSTANCE HAS OCCURRED OR INFORMATION
EXISTS WITH RESPECT TO THE COMPANY OR ANY OF ITS SUBSIDIARIES OR ITS OR THEIR
BUSINESS, PROPERTIES, PROSPECTS, OPERATIONS OR FINANCIAL CONDITIONS, WHICH,
UNDER APPLICABLE LAW, RULE OR REGULATION, REQUIRES PUBLIC DISCLOSURE OR
ANNOUNCEMENT BY THE COMPANY BUT WHICH HAS NOT BEEN SO PUBLICLY ANNOUNCED OR
DISCLOSED.
THE COMPANY ACKNOWLEDGES AND AGREES THAT NO BUYER MAKES OR HAS MADE
ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED
HEREBY OTHER THAN THOSE SPECIFICALLY SET FORTH IN SECTION 2.
4.
COVENANTS.
(A)
BEST EFFORTS.
EACH PARTY SHALL USE ITS
BEST EFFORTS TIMELY TO SATISFY EACH OF THE COVENANTS AND THE CONDITIONS TO BE
SATISFIED BY IT AS PROVIDED IN SECTIONS 5, 6 AND 7 OF THIS AGREEMENT.
19
(B)
FORM D AND BLUE SKY.
THE COMPANY AGREES TO
FILE A FORM D WITH RESPECT TO THE SECURITIES AS REQUIRED UNDER REGULATION D AND
TO PROVIDE A COPY THEREOF TO EACH BUYER PROMPTLY AFTER SUCH FILING.
THE
COMPANY, ON OR BEFORE THE CLOSING DATE, SHALL TAKE SUCH ACTION AS THE COMPANY
SHALL REASONABLY DETERMINE IS NECESSARY IN ORDER TO OBTAIN AN EXEMPTION FOR OR
TO QUALIFY THE SECURITIES FOR SALE TO THE BUYERS AT THE CLOSING PURSUANT TO THIS
AGREEMENT UNDER APPLICABLE SECURITIES OR "BLUE SKY" LAWS OF THE STATES OF THE
UNITED STATES (OR TO OBTAIN AN EXEMPTION FROM SUCH QUALIFICATION), AND SHALL
PROVIDE EVIDENCE OF ANY SUCH ACTION SO TAKEN TO THE BUYERS ON OR PRIOR TO THE
CLOSING DATE.
THE COMPANY SHALL MAKE ALL FILINGS AND REPORTS RELATING TO THE
OFFER AND SALE OF THE SECURITIES REQUIRED UNDER APPLICABLE SECURITIES OR "BLUE
SKY" LAWS OF THE STATES OF THE UNITED STATES FOLLOWING THE CLOSING DATE.
(C)
REPORTING STATUS.
UNTIL THE EARLIER OF
(I) THE DATE ON WHICH THE INVESTORS (AS DEFINED IN THE REGISTRATION RIGHTS
AGREEMENT) SHALL HAVE SOLD ALL THE CONVERSION SHARES AND NONE OF THE NOTES ARE
OUTSTANDING AND (II) THE DATE ON WHICH THE BUYERS MAY SELL ALL OF THE NOTES,
CONVERSION SHARES WITHOUT RESTRICTION PURSUANT TO RULE 144 AND WITHOUT THE
REQUIREMENT TO BE IN COMPLIANCE WITH RULE 144(C)(1) (OR ANY SUCCESSOR THERETO)
PROMULGATED UNDER THE 1933 ACT (THE "REPORTING PERIOD"), THE COMPANY SHALL
TIMELY FILE ALL REPORTS REQUIRED TO BE FILED WITH THE SEC PURSUANT TO THE 1934
ACT, AND THE COMPANY SHALL NOT TERMINATE ITS STATUS AS AN ISSUER REQUIRED TO
FILE REPORTS UNDER THE 1934 ACT EVEN IF THE 1934 ACT OR THE RULES AND
REGULATIONS THEREUNDER WOULD NO LONGER REQUIRE OR OTHERWISE PERMIT SUCH
TERMINATION, AND THE COMPANY SHALL TAKE ALL ACTIONS NECESSARY TO MAINTAIN ITS
ELIGIBILITY TO REGISTER THE CONVERSION SHARES FOR RESALE BY THE BUYERS ON
FORM S-3.
(D)
USE OF PROCEEDS.
THE COMPANY WILL USE THE
PROCEEDS FROM THE SALE OF THE SECURITIES FOR (I) THE REPAYMENT OF INDEBTEDNESS
AS SET FORTH