SUCH PURCHASER.
IF THE
COMPANY BREACHES THE FOREGOING COVENANT, THEN IN ADDITION TO ANY OTHER REMEDY
PROVIDED HEREIN OR IN THE TRANSACTION DOCUMENTS, A PURCHASER SHALL PROVIDE
NOTICE TO THE COMPANY AND AN OPPORTUNITY FOR THE COMPANY TO MAKE ANY DISCLOSURE
REQUIRED BY REGULATION FD IN CONNECTION WITH SUCH DISCLOSURE TO THE PURCHASER,
AND IF THE COMPANY FAILS TO MAKE SUCH TIMELY DISCLOSURE REQUIRED BY REGULATION
FD, THEN SUCH PURCHASER SHALL HAVE THE RIGHT TO MAKE A PUBLIC DISCLOSURE, IN THE
FORM OF A PRESS RELEASE, PUBLIC ADVERTISEMENT OR OTHERWISE, OF SUCH MATERIAL
NONPUBLIC INFORMATION WITHOUT THE PRIOR APPROVAL BY THE COMPANY, ITS
SUBSIDIARIES, OR ANY OF ITS OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES
OR AGENTS.
NO PURCHASER SHALL HAVE ANY LIABILITY TO THE COMPANY, ITS
SUBSIDIARIES, OR ANY OF ITS OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES,
SHAREHOLDERS OR AGENTS FOR ANY SUCH DISCLOSURE.
SUBJECT TO THIS PARAGRAPH,
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 DOCUMENTS FILED CONTEMPORANEOUSLY THEREWITH OR (II) AS IS REQUIRED BY
APPLICABLE LAW AND REGULATIONS (PROVIDED THAT IN THE CASE OF CLAUSE (II) EACH
19
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 12 MONTHS PRECEDING THE DATE OF THIS AGREEMENT DID NOT
AT THE TIME OF RELEASE CONTAIN ANY UNTRUE STATEMENT OF A MATERIAL FACT.
4.7
USE OF PROCEEDS.
EXCEPT AS SET FORTH ON
SCHEDULE 4.7, 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 CONSISTENT WITH 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, WILLFUL MISCONDUCT OR VIOLATION OF APPLICABLE
SECURITIES LAWS.
IN ADDITION, THE COMPANY SHALL INDEMNIFY AND HOLD HARMLESS
EACH