IS REQUIRED BY LAW OR TRADING
MARKET REGULATIONS, IN WHICH CASE THE COMPANY SHALL PROVIDE THE PURCHASERS WITH
PRIOR NOTICE OF SUCH DISCLOSURE PERMITTED UNDER THIS SUBCLAUSE (II).
4.5
SHAREHOLDER RIGHTS PLAN.
NO CLAIM WILL BE
MADE OR ENFORCED BY THE COMPANY OR, WITH THE CONSENT OF THE COMPANY, ANY OTHER
PERSON, THAT ANY PURCHASER IS AN "ACQUIRING PERSON" UNDER ANY CONTROL SHARE
ACQUISITION, BUSINESS COMBINATION, POISON PILL (INCLUDING ANY DISTRIBUTION UNDER
A RIGHTS AGREEMENT) OR SIMILAR ANTI-TAKEOVER PLAN OR ARRANGEMENT IN EFFECT OR
HEREAFTER ADOPTED BY THE COMPANY, OR THAT ANY PURCHASER COULD BE DEEMED TO
TRIGGER THE PROVISIONS OF ANY SUCH PLAN OR ARRANGEMENT, BY VIRTUE OF RECEIVING
SECURITIES UNDER THE TRANSACTION DOCUMENTS OR UNDER ANY OTHER AGREEMENT BETWEEN
THE COMPANY AND THE PURCHASERS.
4.6
NON-PUBLIC INFORMATION.
EXCEPT WITH RESPECT
TO THE MATERIAL TERMS AND CONDITIONS OF THE TRANSACTIONS CONTEMPLATED BY THE
TRANSACTION DOCUMENTS, THE COMPANY COVENANTS AND AGREES THAT NEITHER IT NOR ANY
OTHER PERSON ACTING ON ITS BEHALF 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.
4.7
USE OF PROCEEDS.
EXCEPT AS SET FORTH ON
SCHEDULE 4.7 ATTACHED HERETO, THE COMPANY SHALL USE THE NET PROCEEDS FROM THE
SALE OF THE SECURITIES HEREUNDER FOR WORKING CAPITAL PURPOSES AND SHALL NOT USE
SUCH PROCEEDS FOR THE SATISFACTION OF ANY PORTION OF THE COMPANY'S DEBT (OTHER
THAN PAYMENT OF TRADE PAYABLES IN THE ORDINARY COURSE OF THE COMPANY'S BUSINESS
AND PRIOR PRACTICES), OR TO REDEEM ANY COMMON STOCK OR COMMON STOCK EQUIVALENTS
(EXCEPT PURSUANT TO ARTICLE XI OR AS PROVIDED IN SECTION 2.1(C) HEREIN) OR TO
SETTLE ANY OUTSTANDING LITIGATION.
4.8
[RESERVED].
4.9
INDEMNIFICATION OF PURCHASERS.
SUBJECT TO
THE PROVISIONS OF THIS SECTION 4.9, THE COMPANY WILL INDEMNIFY AND HOLD EACH
PURCHASER AND ITS DIRECTORS, OFFICERS, SHAREHOLDERS, MEMBERS, PARTNERS,
EMPLOYEES AND AGENTS (AND ANY OTHER PERSONS WITH A FUNCTIONALLY EQUIVALENT ROLE
OF A PERSON HOLDING SUCH TITLES NOTWITHSTANDING A LACK OF SUCH TITLE OR ANY
OTHER TITLE), EACH PERSON WHO CONTROLS SUCH PURCHASER (WITHIN THE MEANING OF
SECTION 15 OF THE SECURITIES ACT AND SECTION 20 OF THE EXCHANGE ACT), AND THE
DIRECTORS, OFFICERS, SHAREHOLDERS, AGENTS, MEMBERS, PARTNERS OR EMPLOYEES (AND
ANY OTHER PERSONS WITH A FUNCTIONALLY EQUIVALENT ROLE OF A PERSON HOLDING SUCH
TITLES NOTWITHSTANDING A LACK OF SUCH TITLE OR ANY OTHER TITLE) OF SUCH
CONTROLLING PERSONS (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 THAT ANY SUCH PURCHASER
PARTY MAY SUFFER OR INCUR AS A RESULT OF OR RELATING TO (A) ANY BREACH OF ANY OF
THE REPRESENTATIONS, WARRANTIES, COVENANTS OR AGREEMENTS MADE BY