IS IDENTICAL TO THE DISCLOSURE PREVIOUSLY APPROVED
IN WRITING BY THE PURCHASER.
4.4
SHAREHOLDER RIGHTS PLAN.
NO CLAIM WILL BE MADE OR ENFORCED BY THE
COMPANY OR, WITH THE CONSENT OF THE COMPANY, ANY OTHER PERSON, THAT THE
PURCHASER IS AN "ACQUIRING PERSON"
19
UNDER ANY CONTROL SHARE ACQUISITION, BUSINESS COMBINATION, POISON PILL
(INCLUDING ANY DISTRIBUTION UNDER A RIGHTS AGREEMENT) OR SIMILAR ANTI-TAKEOVER
PLAN OR ARRANGEMENT IN EFFECT OR HEREAFTER ADOPTED BY THE COMPANY, OR THAT THE
PURCHASER COULD BE DEEMED TO TRIGGER THE PROVISIONS OF ANY SUCH PLAN OR
ARRANGEMENT, BY VIRTUE OF RECEIVING SHARES UNDER THE TRANSACTION DOCUMENTS OR
UNDER ANY OTHER AGREEMENT BETWEEN THE COMPANY AND THE PURCHASER.
4.5
NON-PUBLIC INFORMATION.
EXCEPT WITH RESPECT TO THE MATERIAL TERMS
AND CONDITIONS OF THE TRANSACTIONS CONTEMPLATED BY THE TRANSACTION DOCUMENTS,
THE COMPANY COVENANTS AND AGREES THAT NEITHER IT NOR ANY OTHER PERSON ACTING ON
ITS BEHALF WILL PROVIDE THE PURCHASER OR ITS AGENTS OR COUNSEL WITH ANY
INFORMATION THAT THE COMPANY BELIEVES CONSTITUTES MATERIAL NON-PUBLIC
INFORMATION, UNLESS PRIOR THERETO THE PURCHASER SHALL HAVE EXECUTED A WRITTEN
AGREEMENT REGARDING THE CONFIDENTIALITY AND USE OF SUCH INFORMATION.
THE
COMPANY UNDERSTANDS AND CONFIRMS THAT THE PURCHASER SHALL BE RELYING ON THE
FOREGOING COVENANT IN EFFECTING TRANSACTIONS IN SECURITIES OF THE COMPANY.
4.6
USE OF PROCEEDS.
THE COMPANY SHALL USE THE NET PROCEEDS FROM THE
SALE OF THE SHARES HEREUNDER FOR WORKING CAPITAL PURPOSES AND SHALL NOT USE SUCH
PROCEEDS FOR (A) THE SATISFACTION OF ANY PORTION OF THE COMPANY'S DEBT (OTHER
THAN PAYMENT OF TRADE PAYABLES IN THE ORDINARY COURSE OF THE COMPANY'S BUSINESS
AND PRIOR PRACTICES) OR (B) THE REDEMPTION OF ANY COMMON STOCK OR COMMON STOCK
EQUIVALENTS.
4.7
INDEMNIFICATION OF PURCHASER.
SUBJECT TO THE PROVISIONS OF THIS
SECTION 4.7, THE COMPANY WILL INDEMNIFY AND HOLD THE PURCHASER AND ITS
DIRECTORS, OFFICERS, SHAREHOLDERS, MEMBERS, PARTNERS, EMPLOYEES AND AGENTS (AND
ANY OTHER PERSONS WITH A FUNCTIONALLY EQUIVALENT ROLE OF A PERSON HOLDING SUCH
TITLES NOTWITHSTANDING A LACK OF SUCH TITLE OR ANY OTHER TITLE), EACH PERSON WHO
CONTROLS THE PURCHASER (WITHIN THE MEANING OF SECTION 15 OF THE SECURITIES ACT
AND SECTION 20 OF THE EXCHANGE ACT), AND THE DIRECTORS, OFFICERS, SHAREHOLDERS,
AGENTS, MEMBERS, PARTNERS OR EMPLOYEES (AND ANY OTHER PERSONS WITH A
FUNCTIONALLY EQUIVALENT ROLE OF A PERSON HOLDING SUCH TITLES NOTWITHSTANDING A
LACK OF SUCH TITLE OR ANY OTHER TITLE) OF SUCH CONTROLLING PERSONS (EACH, A
"PURCHASER PARTY") HARMLESS FROM ANY AND ALL LOSSES, LIABILITIES, OBLIGATIONS,
CLAIMS, CONTINGENCIES, DAMAGES, COSTS AND EXPENSES, INCLUDING ALL JUDGMENTS,
AMOUNTS PAID IN SETTLEMENTS, COURT COSTS AND REASONABLE ATTORNEYS' FEES AND
COSTS OF INVESTIGATION THAT ANY PURCHASER PARTY MAY SUFFER OR INCUR
(COLLECTIVELY, "LOSSES") AS A RESULT OF OR RELATING TO (A) ANY BREACH OF ANY OF
THE REPRESENTATIONS OR WARRANTIES MADE BY THE COMPANY IN THIS AGREEMENT OR IN
THE OTHER TRANSACTION DOCUMENTS (WITHOUT REGARD TO ANY "MATERIALITY" OR MATERIAL
ADVERSE EFFECT" QUALIFIERS CONTAINED THEREIN), TO THE EXTENT THAT THE AMOUNT OF
THE LOSSES ARISING FROM ALL SUCH BREACHES EXCEEDS $500,000, (B) ANY