RESTRICTIVE LEGEND SPECIFIED IN SECTION 5.1 OF THIS AGREEMENT.
THE COMPANY
WARRANTS THAT NO INSTRUCTION OTHER THAN THE IRREVOCABLE TRANSFER AGENT
INSTRUCTIONS REFERRED TO IN THIS SECTION 3.13 WILL BE GIVEN BY THE COMPANY TO
ITS TRANSFER AGENT AND THAT THE SHARES SHALL OTHERWISE BE FREELY TRANSFERABLE ON
THE BOOKS AND RECORDS OF THE COMPANY AS AND TO THE EXTENT PROVIDED IN THIS
AGREEMENT AND THE REGISTRATION RIGHTS AGREEMENT.
IF A PURCHASER PROVIDES THE
COMPANY WITH AN OPINION OF COUNSEL, IN A GENERALLY ACCEPTABLE FORM, TO THE
EFFECT THAT A PUBLIC SALE, ASSIGNMENT OR TRANSFER OF THE SHARES MAY BE MADE
WITHOUT REGISTRATION UNDER THE SECURITIES ACT OR THE PURCHASER PROVIDES THE
COMPANY WITH REASONABLE ASSURANCES THAT SUCH SHARES CAN BE SOLD PURSUANT TO RULE
144 WITHOUT ANY RESTRICTION AS TO THE NUMBER OF SECURITIES ACQUIRED AS OF A
PARTICULAR DATE THAT CAN THEN BE IMMEDIATELY SOLD, THE COMPANY SHALL PERMIT THE
TRANSFER, AND, IN THE CASE OF THE CONVERSION SHARES AND THE WARRANT SHARES
PROMPTLY INSTRUCT ITS TRANSFER AGENT TO ISSUE ONE OR MORE CERTIFICATES IN SUCH
NAME AND IN SUCH DENOMINATIONS AS SPECIFIED BY SUCH PURCHASER AND WITHOUT ANY
RESTRICTIVE LEGEND.
THE COMPANY ACKNOWLEDGES THAT A BREACH BY IT OF ITS
OBLIGATIONS UNDER THIS SECTION 3.13 WILL CAUSE IRREPARABLE HARM TO THE
PURCHASERS BY VITIATING THE INTENT AND PURPOSE OF THE TRANSACTION CONTEMPLATED
HEREBY.
ACCORDINGLY, THE COMPANY ACKNOWLEDGES THAT THE REMEDY AT LAW FOR A
BREACH OF ITS OBLIGATIONS UNDER THIS SECTION 3.13 WILL BE INADEQUATE AND AGREES,
IN THE EVENT OF A BREACH OR THREATENED BREACH BY THE COMPANY OF THE PROVISIONS
OF THIS SECTION 3.13, THAT THE PURCHASERS SHALL BE ENTITLED, IN ADDITION TO ALL
OTHER AVAILABLE REMEDIES, TO AN ORDER AND/OR INJUNCTION RESTRAINING ANY BREACH
AND REQUIRING IMMEDIATE ISSUANCE AND TRANSFER, WITHOUT THE NECESSITY OF SHOWING
ECONOMIC LOSS AND WITHOUT ANY BOND OR OTHER SECURITY BEING REQUIRED.
SECTION 3.14
DISPOSITION OF ASSETS.
SO LONG AS ANY PREFERRED SHARES
REMAIN OUTSTANDING, NEITHER THE COMPANY NOR ANY SUBSIDIARY SHALL SELL, TRANSFER
OR OTHERWISE DISPOSE OF ANY OF ITS PROPERTIES, ASSETS AND RIGHTS INCLUDING,
WITHOUT LIMITATION, ITS SOFTWARE AND INTELLECTUAL PROPERTY, TO ANY PERSON EXCEPT
FOR SALES TO CUSTOMERS IN THE ORDINARY COURSE OF BUSINESS OR WITH THE PRIOR
WRITTEN CONSENT OF THE HOLDERS OF A MAJORITY OF THE PREFERRED SHARES THEN
OUTSTANDING.
SECTION 3.15
REPORTING STATUS.
SO LONG AS A PURCHASER BENEFICIALLY
OWNS ANY OF THE SHARES, THE COMPANY SHALL TIMELY FILE ALL REPORTS REQUIRED TO BE
FILED WITH THE COMMISSION PURSUANT TO THE EXCHANGE ACT, AND THE COMPANY SHALL
NOT TERMINATE ITS STATUS AS AN ISSUER REQUIRED TO FILE REPORTS UNDER THE
EXCHANGE ACT EVEN IF THE EXCHANGE ACT OR THE RULES AND REGULATIONS THEREUNDER
WOULD PERMIT SUCH TERMINATION.
18
SECTION 3.16
DISCLOSURE OF TRANSACTION.
THE COMPANY SHALL ISSUE A
PRESS RELEASE DESCRIBING THE MATERIAL TERMS OF THE TRANSACTIONS CONTEMPLATED
HEREBY (THE "PRESS RELEASE") AS SOON AS PRACTICABLE AFTER THE CLOSING BUT IN NO
EVENT LATER THAN 9:00 A.M. EASTERN TIME ON THE FIRST TRADING