THE REGISTRATION RIGHTS AGREEMENT AND THE FORM OF THE WARRANTS, IN
THE FORM REQUIRED BY THE EXCHANGE ACT.
4.9.
NON-PUBLIC INFORMATION.
THE COMPANY COVENANTS
AND AGREES THAT NEITHER IT NOR ANY OTHER PERSON ACTING ON ITS BEHALF HAS
PROVIDED OR WILL PROVIDE ANY PURCHASER OR ITS AGENTS OR COUNSEL WITH ANY
INFORMATION THAT THE COMPANY BELIEVES CONSTITUTES MATERIAL NON-PUBLIC
INFORMATION, UNLESS PRIOR THERETO SUCH PURCHASER SHALL HAVE EXECUTED A WRITTEN
AGREEMENT REGARDING THE CONFIDENTIALITY AND USE OF SUCH INFORMATION.
THE
COMPANY UNDERSTANDS AND CONFIRMS THAT EACH PURCHASER SHALL BE RELYING ON THE
FOREGOING REPRESENTATIONS IN EFFECTING TRANSACTIONS IN SECURITIES OF THE
COMPANY.
4.10.
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 AND ACCRUED EXPENSES IN THE ORDINARY COURSE OF THE
COMPANY'S BUSINESS AND PRIOR PRACTICES), TO REDEEM ANY COMPANY EQUITY OR
EQUITY-EQUIVALENT SECURITIES OR TO SETTLE ANY OUTSTANDING LITIGATION.
4.11.
INDEMNIFICATION OF PURCHASERS.
THE COMPANY WILL
INDEMNIFY AND HOLD THE PURCHASERS AND THEIR DIRECTORS, OFFICERS, SHAREHOLDERS,
MEMBERS, PARTNERS, EMPLOYEES AND AGENTS (EACH, A "PURCHASER 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 PURCHASER PARTY MAY SUFFER
OR INCUR AS A RESULT OF OR RELATING TO: (A) ANY MISREPRESENTATION, BREACH OR
INACCURACY, OR ANY ALLEGATION BY A THIRD PARTY THAT, IF TRUE, WOULD CONSTITUTE A
BREACH OR INACCURACY, OF ANY OF THE REPRESENTATIONS, WARRANTIES, COVENANTS OR
AGREEMENTS MADE BY THE COMPANY IN THIS AGREEMENT OR IN THE OTHER TRANSACTION
DOCUMENTS; OR (B) ANY CAUSE OF ACTION, SUIT OR CLAIM BROUGHT OR MADE AGAINST
SUCH PURCHASER PARTY AND ARISING SOLELY OUT OF OR SOLELY RESULTING FROM THE
EXECUTION, DELIVERY, PERFORMANCE OR ENFORCEMENT OF THIS AGREEMENT OR ANY OF THE
OTHER TRANSACTION DOCUMENTS AND WITHOUT CAUSATION BY ANY OTHER ACTIVITY,
OBLIGATION, CONDITION OR LIABILITY PERTAINING TO SUCH PURCHASER AND NOT TO THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. THE COMPANY WILL REIMBURSE SUCH
PURCHASER 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.
4.12.
SHAREHOLDERS RIGHTS PLAN.
IN THE EVENT THAT A
SHAREHOLDERS RIGHTS PLAN IS ADOPTED BY THE COMPANY, NO CLAIM WILL BE MADE OR
ENFORCED BY THE COMPANY OR ANY OTHER PERSON THAT ANY PURCHASER IS AN "ACQUIRING
PERSON" UNDER ANY SUCH PLAN OR IN ANY WAY COULD BE DEEMED TO TRIGGER THE
PROVISIONS OF SUCH PLAN BY VIRTUE OF RECEIVING SECURITIES UNDER THE TRANSACTION
DOCUMENTS.
4.13
ADDITIONAL CLOSINGS.
THE PURCHASERS AGREE THAT
UNTIL 5:00 PM ET ON FRIDAY, MAY 9, 2003, THE COMPANY MAY ISSUE AND SELL TO ONE
OR MORE OF THE PURCHASERS, OR TO ONE OR MORE NEW PURCHASERS, UP TO 1,000,000
ADDITIONAL SHARES OF ITS COMMON STOCK TOGETHER WITH