AGREES THAT,
FOLLOWING THE TERMINATION OF THE EXISTING CONFIDENTIALITY AGREEMENTS BETWEEN THE
COMPANY AND THE PURCHASERS, NEITHER IT NOR ANY OTHER PERSON ACTING ON ITS BEHALF
WILL PROVIDE ANY PURCHASER OR ITS AGENTS OR COUNSEL WITH ANY INFORMATION THAT
THE COMPANY BELIEVES CONSTITUTES MATERIAL NON-PUBLIC
17
INFORMATION, UNLESS PRIOR THERETO SUCH PURCHASER SHALL HAVE EXECUTED A WRITTEN
AGREEMENT REGARDING THE CONFIDENTIALITY AND USE OF SUCH INFORMATION.
THE
COMPANY UNDERSTANDS AND CONFIRMS THAT EACH PURCHASER SHALL BE RELYING ON THE
FOREGOING REPRESENTATIONS IN EFFECTING TRANSACTIONS IN SECURITIES OF THE
COMPANY.
A DEFINITIVE PROXY STATEMENT WILL BE DELIVERED IN CONNECTION WITH THE
TORNADO TRANSACTION THAT WILL PUBLICLY DISCLOSE ALL OF THE MATERIAL WRITTEN
INFORMATION HERETOFORE PROVIDED TO THE PURCHASERS.
4.6
USE OF PROCEEDS.
THE COMPANY SHALL USE THE NET PROCEEDS FROM THE
SALE OF THE SHARES HEREUNDER FOR PAYMENT OF A PORTION OF THE CASH CONSIDERATION
TO BE PAID TO TORNADO STOCKHOLDERS IN THE MERGER AND FOR WORKING CAPITAL
PURPOSES FOLLOWING THE TORNADO TRANSACTION.
4.7
RESERVATION OF STOCK.
AS OF THE DATE HEREOF, THE COMPANY HAS
RESERVED AND THE COMPANY SHALL CONTINUE TO RESERVE AND KEEP AVAILABLE AT ALL
TIMES, FREE OF PREEMPTIVE RIGHTS, A SUFFICIENT NUMBER OF SHARES OF COMMON STOCK
FOR THE PURPOSE OF ENABLING THE COMPANY TO ISSUE SHARES PURSUANT TO THIS
AGREEMENT.
4.8
LISTING OF COMMON STOCK.
THE COMPANY HEREBY AGREES TO USE
COMMERCIALLY REASONABLY EFFORTS TO MAINTAIN THE LISTING OF THE COMMON STOCK ON
THE TRADING MARKET, AND AS SOON AS REASONABLY PRACTICABLE FOLLOWING THE CLOSING
(BUT NOT LATER THAN THE EARLIER OF THE EFFECTIVE DATE APPLICABLE TO SUCH SHARES
AND THE THREE (3) MONTH ANNIVERSARY OF THE CLOSING DATE) TO LIST THE APPLICABLE
SHARES ON THE 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 THE COMMON STOCK SOLD HEREUNDER.
4.9
SHORT SALES.
THE PURCHASER AGREES THAT BEGINNING ON THE DATE
HEREOF UNTIL AT LEAST SIXTY (60) DAYS FROM THE CLOSING, THE PURCHASER WILL NOT
ENTER INTO ANY SHORT SALES.
4.10
TERMINATION FEE.
UPON RECEIPT OF ANY TERMINATION FEE UNDER THE
TERMS OF THE TORNADO MERGER AGREEMENT, THE COMPANY SHALL PAY TO EACH THE
PURCHASER ONE PERCENT (1%) OF SUCH PURCHASER'S INVESTMENT AMOUNT, NET OF ANY
COSTS AND EXPENSES INCURRED BY THE COMPANY IN THE COLLECTION OF ANY SUCH
TERMINATION FEE, TO THE EXTENT THAT THE COMPANY HAS SUFFICIENT FUNDS TO PAY SUCH
AMOUNTS AFTER PAYMENT OF ANY SUCH COLLECTION COSTS AND EXPENSES.
4.11
NO REGISTRATION.
THE COMPANY AGREES NOT TO ISSUE ANY SECURITIES
PURSUANT TO ANY REGISTRATION STATEMENT OR REGISTER FOR RESALE ON BEHALF OF
OTHERS ANY SECURITIES PRIOR TO THE EFFECTIVE DATE, EXCEPT FOR (I) SECURITIES
SUBJECT TO A REGISTRATION STATEMENT ON FORM S-8, (II) THE RESALE OF SHARES OF
COMMON STOCK UNDERLYING OUTSTANDING WARRANTS, AND (III) SECURITIES ISSUED IN
CONNECTION WITH AN ACQUISITION BY THE COMPANY, WHETHER BY MERGER, CONSOLIDATION,
SALE OF ASSETS, SALE OR EXCHANGE OF STOCK OR OTHERWISE.
ARTICLE V.
MISCELLANEOUS
5.1