OTHER
PUBLIC DISCLOSURE AND SHALL IN NO EVENT MAKE ANY SUCH PUBLIC DISCLOSURE IF THE
COMPANY CERTIFIES TO SUCH PURCHASER IN WRITING THAT SUCH INFORMATION DOES NOT
CONSTITUTE MATERIAL, NONPUBLIC INFORMATION.
NO PURCHASER SHALL HAVE ANY
LIABILITY TO THE COMPANY, ITS SUBSIDIARIES, OR ANY OF ITS OR THEIR RESPECTIVE
OFFICERS, DIRECTORS, EMPLOYEES, STOCKHOLDERS OR AGENTS FOR ANY SUCH DISCLOSURE,
EXCEPT TO THE EXTENT THAT THEIR ACTIONS CONSTITUTE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT.
SUBJECT TO THE FOREGOING, NEITHER THE COMPANY NOR ANY PURCHASER
SHALL ISSUE ANY PRESS RELEASES OR ANY OTHER PUBLIC STATEMENTS WITH RESPECT TO
THE TRANSACTIONS CONTEMPLATED HEREBY; PROVIDED, HOWEVER, THAT THE COMPANY SHALL
BE ENTITLED, WITHOUT THE PRIOR APPROVAL OF ANY PURCHASER, TO MAKE ANY PRESS
RELEASE OR OTHER PUBLIC DISCLOSURE WITH RESPECT TO SUCH TRANSACTIONS (I) IN
SUBSTANTIAL CONFORMITY WITH THE 8-K FILING AND CONTEMPORANEOUSLY THEREWITH AND
(II) AS IS REQUIRED BY APPLICABLE LAW AND REGULATIONS (PROVIDED THAT IN THE CASE
OF CLAUSE (I) THE PURCHASERS SHALL BE CONSULTED BY THE COMPANY IN CONNECTION
WITH ANY SUCH PRESS RELEASE OR OTHER PUBLIC DISCLOSURE PRIOR TO ITS RELEASE).
NOTWITHSTANDING THE FOREGOING, THE COMPANY SHALL NOT PUBLICLY DISCLOSE THE NAME
OF ANY PURCHASER, OR INCLUDE THE NAME OF ANY PURCHASER IN ANY FILING WITH THE
COMMISSION OR ANY REGULATORY AGENCY OR TRADING MARKET, WITHOUT THE PRIOR WRITTEN
CONSENT OF SUCH PURCHASER, EXCEPT TO THE EXTENT SUCH DISCLOSURE (BUT NOT ANY
DISCLOSURE AS TO THE CONTROLLING PERSONS THEREOF) IS REQUIRED BY LAW OR TRADING
MARKET REGULATIONS, IN WHICH CASE THE COMPANY SHALL PROVIDE THE PURCHASERS WITH
PRIOR NOTICE OF SUCH DISCLOSURE. NOTWITHSTANDING ANYTHING TO THE CONTRARY
HEREIN, (A) THE DELIVERY BY THE COMPANY OF THE NOTICE PURSUANT TO SECTION 4.7(C)
SHALL NOT BE DEEMED A BREACH BY THE COMPANY OF ANY PROVISION IN THIS SECTION
4.8, (II) ANY BREACH BY THE COMPANY OF THE PROVISIONS IN THIS SECTION 4.8 SHALL
NOT CONSTITUTE A TRIGGERING EVENT IF SUCH BREACH DIRECTLY RESULTED FROM THE
PURCHASER'S BAD FAITH SOLICITATION OF MATERIAL, NONPUBLIC INFORMATION AND (III)
THE COMPANY SHALL NOT BE IN BREACH OF THIS SECTION TO THE EXTENT THAT THE
PURCHASER RECEIVES MATERIAL, NONPUBLIC INFORMATION THROUGH SOLICITATION OF SUCH
INFORMATION FROM PERSONS THAT ARE NOT EXECUTIVE OFFICERS OR DIRECTORS OF THE
COMPANY.
4.9
USE OF PROCEEDS.
THE COMPANY SHALL USE THE
NET PROCEEDS FROM THE SALE OF THE SECURITIES HEREUNDER FOR WORKING CAPITAL
PURPOSES AND NOT FOR THE SATISFACTION OF ANY PORTION OF THE COMPANY'S DEBT
(OTHER THAN PAYMENT OF TRADE PAYABLES, EQUIPMENT OPERATING LEASES AND ACCRUED
EXPENSES IN THE ORDINARY COURSE OF THE COMPANY'S BUSINESS AND PRIOR PRACTICES),
TO REPURCHASE ANY COMPANY EQUITY OR EQUITY-EQUIVALENT SECURITIES OR TO SETTLE
ANY OUTSTANDING LITIGATION.
THIS SECTION 4.9 SHALL NOT APPLY TO ANY AVAILABLE
CASH ON HAND ON THE DATE HEREOF (BEFORE GIVING EFFECT TO THE NET PROCEEDS FROM
THE SALE OF THE SHARES) OR ANY FUTURE FINANCINGS.
4.10
REIMBURSEMENT.
IF ANY PURCHASER OR ANY OF ITS
AFFILIATES OR ANY OFFICER, DIRECTOR, PARTNER, CONTROLLING PERSON, EMPLOYEE OR
AGENT OF A PURCHASER OR ANY OF ITS