due by the taxing authority of any jurisdiction, and the officers of the
Company know of no basis for any such claim.
(T)
DISCLOSURE.
THE REPRESENTATIONS AND
WARRANTIES OF THE COMPANY CONTAINED IN THIS SECTION 3 AS OF THE DATE HEREOF AND
AS OF THE CLOSING DATE, AS QUALIFIED BY THE DISCLOSURE SCHEDULES, DO NOT CONTAIN
ANY UNTRUE STATEMENT OF A MATERIAL FACT OR OMIT TO STATE A MATERIAL FACT
REQUIRED TO BE STATED THEREIN OR NECESSARY TO MAKE THE STATEMENTS THEREIN, IN
LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING.
4.
COVENANTS.
(A)
BEST EFFORTS.
EACH PARTY SHALL USE ITS
BEST EFFORTS TIMELY TO SATISFY EACH OF THE CONDITIONS TO BE SATISFIED BY IT AS
PROVIDED IN SECTIONS 5 AND 6 OF THIS AGREEMENT.
(B)
FORM D AND BLUE SKY.
THE COMPANY AGREES TO
FILE A FORM D WITH RESPECT TO THE SHARES AS REQUIRED UNDER REGULATION D AND TO
PROVIDE UPON REQUEST A COPY THEREOF TO A REQUESTING BUYER PROMPTLY AFTER SUCH
FILING.
THE COMPANY SHALL, ON OR BEFORE THE CLOSING DATE, TAKE SUCH ACTION AS
THE COMPANY SHALL REASONABLY DETERMINE IS NECESSARY IN ORDER TO OBTAIN AN
EXEMPTION FOR OR TO QUALIFY THE SHARES FOR SALE TO THE BUYERS PURSUANT TO THIS
AGREEMENT UNDER APPLICABLE SECURITIES OR "BLUE SKY" LAWS OF THE STATES OF THE
UNITED STATES, AND SHALL PROVIDE EVIDENCE OF ANY SUCH ACTION SO TAKEN TO THE
BUYER ON OR PRIOR TO THE CLOSING DATE.
THE COMPANY SHALL MAKE ALL FILINGS AND
REPORTS RELATING TO THE OFFER AND SALE OF THE SHARES REQUIRED UNDER APPLICABLE
SECURITIES OR "BLUE SKY" LAWS OF THE STATES OF THE UNITED STATES FOLLOWING THE
CLOSING DATE.
(C)
LISTING.
WITHIN THREE (3) BUSINESS DAYS
AFTER THE CLOSING DATE, THE COMPANY SHALL FILE WITH THE NASD A NOTIFICATION FORM
FOR THE LISTING OF ADDITIONAL SHARES WITH RESPECT TO THE SHARES AND THE LISTING
THEREOF ON THE NASDAQ SMALLCAP MARKET, IF REQUIRED.
(D)
LOCK-UP AGREEMENTS. WITHIN FIVE (5) BUSINESS
DAYS AFTER THE CLOSING DATE, EACH OF THE COMPANY'S NAMED EXECUTIVE OFFICERS AND
DIRECTORS (EXCLUDING FROST R.R. PRIOLEAU) SHALL HAVE ENTERED INTO AGREEMENTS
WITH APEX CAPITAL, LLC NOT TO SELL OR OTHERWISE TRANSFER OR DISPOSE OF ANY
SHARES OF THE COMPANY'S CAPITAL STOCK, EXCEPT AS OTHERWISE PERMITTED BY APEX
CAPITAL, LLC, UNTIL THE LATER TO OCCUR OF (I) 30 DAYS FOLLOWING THE CLOSING DATE
AND (II) THE EFFECTIVENESS OF THE REGISTRATION STATEMENT REGISTERING THE RESALE
OF THE SHARES; PROVIDED, HOWEVER, THAT EACH OF SUCH OFFICERS AND DIRECTORS SHALL
BE PERMITTED TO SELL OR OTHERWISE TRANSFER OR DISPOSE OF UP TO AN AGGREGATE OF
TEN PERCENT (10%) OF THEIR HOLDINGS (DETERMINED ON THE DATE HEREOF) OF THE
COMPANY'S COMMON STOCK, WITHOUT THE PRIOR CONSENT OF THE BUYERS.
SUCH AGREEMENT
SHALL BE IN SUBSTANTIALLY THE FORM ATTACHED HERETO AS EXHIBIT C.
(E)
EXPENSES; FEES.
EACH OF THE COMPANY AND
THE BUYERS SHALL BEAR ITS OWN EXPENSES, INCLUDING FEES AND COSTS OF ATTORNEYS,
ACCOUNTANTS AND FINANCIAL ADVISORS, INCURRED IN CONNECTION WITH THE TRANSACTIONS
CONTEMPLATED