of credit, shelf takedown, or
similar financing arrangement) resulting in net proceeds to the Company of in
excess of $15,000,000, (iv) shares of Common Stock issued as consideration for
the acquisition of another company or business in which the shareholders of the
Company do not have an ownership interest, which acquisition has been approved
by the Board of Directors of the Company, or (v) Securities pursuant to the
exercise of conversion or purchase rights pursuant to issued and outstanding
convertible securities, options or warrants, including the warrants to be issued
to the agent, the co-agent and any sub-agents in connection with this
transaction.
Notwithstanding the foregoing, no Additional Shares shall be
issued without the prior approval of the shareholders of the Proposal, as
further described in Section 4.13.
4.8
LIMITATION ON ISSUANCE OF FUTURE PRICED SECURITIES.
DURING THE SIX MONTHS
FOLLOWING THE SECOND CLOSING DATE, THE COMPANY SHALL NOT ISSUE ANY "FUTURE
PRICED SECURITIES" AS SUCH TERM IS DESCRIBED BY NASD IM-4350-1.
4.9
INDEMNIFICATION OF INVESTORS.
IN ADDITION TO THE INDEMNITY PROVIDED IN
THE REGISTRATION RIGHTS AGREEMENT, THE COMPANY WILL INDEMNIFY AND HOLD THE
INVESTORS AND THEIR DIRECTORS, OFFICERS, SHAREHOLDERS, PARTNERS, EMPLOYEES AND
AGENTS (EACH, AN "INVESTOR 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 (COLLECTIVELY, "LOSSES") THAT ANY
SUCH INVESTOR PARTY MAY SUFFER OR INCUR AS A RESULT OF OR RELATING TO ANY
MISREPRESENTATION, BREACH OR INACCURACY OF ANY REPRESENTATION, WARRANTY,
COVENANT OR AGREEMENT MADE BY THE COMPANY IN ANY TRANSACTION DOCUMENT.
IN
ADDITION TO THE INDEMNITY CONTAINED HEREIN, THE COMPANY WILL REIMBURSE EACH
INVESTOR PARTY FOR ITS REASONABLE LEGAL AND OTHER EXPENSES (INCLUDING THE COST
OF ANY INVESTIGATION, PREPARATION AND TRAVEL IN CONNECTION THEREWITH) INCURRED
IN CONNECTION THEREWITH, AS SUCH EXPENSES ARE INCURRED.
4.10
NON-PUBLIC INFORMATION.
THE COMPANY COVENANTS AND AGREES THAT
NEITHER IT NOR ANY OTHER PERSON ACTING ON ITS BEHALF WILL PROVIDE ANY INVESTOR
OR ITS AGENTS OR COUNSEL WITH ANY INFORMATION THAT THE COMPANY BELIEVES
CONSTITUTES MATERIAL NON-PUBLIC INFORMATION, UNLESS PRIOR THERETO SUCH INVESTOR
SHALL HAVE EXECUTED A WRITTEN AGREEMENT REGARDING THE CONFIDENTIALITY AND USE OF
SUCH INFORMATION.
THE COMPANY UNDERSTANDS AND CONFIRMS THAT EACH INVESTOR SHALL
BE RELYING ON THE FOREGOING REPRESENTATIONS IN EFFECTING TRANSACTIONS IN
SECURITIES OF THE COMPANY.
IN THE EVENT THAT IN ORDER TO COMPLY WITH ITS
OBLIGATIONS UNDER SECTION 4.3, THE COMPANY IN WRITING REQUESTS AN INVESTOR TO
ENTER INTO A WRITTEN CONFIDENTIALITY AGREEMENT REGARDING
20
information which the Company desires to disclose to such Investor and which the
Company believes is material and non-public (the parties agreeing that the
information to be disclosed pursuant to such an agreement shall only be material
and non-public for up to 10 days from the date of such agreement) and such
Investor informs the Company that it would not be willing to enter into such
confidentiality agreement, then such Investor shall be deemed to have waived its
participation