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) EACH PURCHASER SHALL BE
CONSULTED BY THE COMPANY IN CONNECTION WITH ANY SUCH PRESS RELEASE OR OTHER
PUBLIC DISCLOSURE PRIOR TO ITS RELEASE).
EACH PRESS RELEASE DISSEMINATED DURING
THE 6 MONTHS PRECEDING THE DATE OF THIS AGREEMENT DID NOT AT THE TIME OF RELEASE
CONTAIN ANY UNTRUE STATEMENT OF A MATERIAL FACT OR OMIT TO STATE A MATERIAL FACT
REQUIRED TO BE STATED THEREIN OR NECESSARY IN ORDER TO MAKE THE STATEMENTS
THEREIN, IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY ARE MADE, NOT
MISLEADING.
4.7
USE OF PROCEEDS.
EXCEPT AS SET FORTH ON SCHEDULE 4.8, THE
COMPANY SHALL USE THE NET PROCEEDS FROM THE SALE OF THE SECURITIES HEREUNDER FOR
WORKING CAPITAL PURPOSES AND NOT (I) FOR THE SATISFACTION OF ANY PORTION OF THE
COMPANY'S DEBT (OTHER THAN PAYMENT OF TRADE PAYABLES, AND ACCRUED EXPENSES IN
THE ORDINARY COURSE OF THE COMPANY'S BUSINESS AND PRIOR PRACTICES), (II) TO
REDEEM ANY COMPANY EQUITY OR EQUITY-EQUIVALENT SECURITIES, OR (III) TO SETTLE
ANY OUTSTANDING LITIGATION.
4.8
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 AFFILIATES (A "RELATED PERSON") BECOMES
INVOLVED IN ANY CAPACITY IN ANY PROCEEDING BROUGHT BY OR AGAINST ANY PERSON IN
CONNECTION WITH OR AS A RESULT OF THE TRANSACTIONS CONTEMPLATED BY THE
TRANSACTION DOCUMENTS, THE COMPANY WILL INDEMNIFY AND HOLD HARMLESS SUCH
PURCHASER OR RELATED PERSON FOR ITS REASONABLE LEGAL AND OTHER EXPENSES
(INCLUDING THE COSTS OF ANY INVESTIGATION, PREPARATION AND TRAVEL) AND FOR ANY
LOSSES INCURRED IN CONNECTION THEREWITH, AS SUCH EXPENSES OR LOSSES ARE
INCURRED, EXCLUDING ONLY LOSSES THAT RESULT DIRECTLY FROM SUCH PURCHASER'S OR
RELATED PERSON'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
IN ADDITION, THE
COMPANY SHALL INDEMNIFY AND HOLD HARMLESS EACH PURCHASER AND RELATED PERSON FROM
AND AGAINST ANY AND ALL LOSSES, AS INCURRED, ARISING OUT OF OR RELATING TO ANY
BREACH BY THE COMPANY OF ANY OF THE REPRESENTATIONS, WARRANTIES OR COVENANTS
MADE BY THE COMPANY IN THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT, OR ANY
ALLEGATION BY A THIRD PARTY THAT, IF TRUE, WOULD CONSTITUTE SUCH A BREACH.
THE
CONDUCT OF ANY PROCEEDINGS FOR WHICH INDEMNIFICATION IS AVAILABLE UNDER THIS
PARAGRAPH SHALL BE GOVERNED BY SECTION 6.4(C) BELOW.
THE INDEMNIFICATION
OBLIGATIONS OF THE COMPANY UNDER THIS PARAGRAPH SHALL BE IN ADDITION TO ANY
LIABILITY THAT THE COMPANY MAY OTHERWISE HAVE AND SHALL BE BINDING UPON AND
INURE TO
16
THE BENEFIT OF ANY SUCCESSORS, ASSIGNS, HEIRS AND PERSONAL REPRESENTATIVES OF
THE PURCHASERS AND ANY SUCH RELATED PERSONS.
THE COMPANY ALSO AGREES THAT
NEITHER THE PURCHASERS NOR ANY RELATED PERSONS SHALL HAVE ANY LIABILITY TO THE
COMPANY OR ANY PERSON ASSERTING CLAIMS