COMPANY, AS COMPENSATION
FOR THEIR SERVICES TO THE COMPANY OR ANY OF ITS DIRECT OR INDIRECT SUBSIDIARIES
PURSUANT TO ARRANGEMENTS APPROVED BY THE BOARD OF DIRECTORS OF THE COMPANY AND
CONSISTENT WITH PAST PRACTICE, (II) SECURITIES PURSUANT TO THE TRANSACTION
DOCUMENTS, (III) SHARES OF COMMON STOCK ISSUED AND SOLD IN A FIRM COMMITMENT
UNDERWRITTEN PUBLIC OFFERING (WHICH SHALL NOT INCLUDE AN EQUITY LINE OF CREDIT,
SHELF TAKEDOWN, OR SIMILAR FINANCING ARRANGEMENT) RESULTING IN NET PROCEEDS TO
THE COMPANY OF IN EXCESS OF $15,000,000, (IV) SHARES OF COMMON STOCK ISSUED AS
CONSIDERATION FOR THE ACQUISITION OF ANOTHER COMPANY OR BUSINESS IN WHICH THE
SHAREHOLDERS OF THE COMPANY DO NOT HAVE AN OWNERSHIP INTEREST, WHICH ACQUISITION
HAS BEEN APPROVED BY THE BOARD OF DIRECTORS OF THE COMPANY, OR (V) THE ISSUANCE
OF SECURITIES PURSUANT TO THE EXERCISE OF CONVERSION OR PURCHASE RIGHTS PURSUANT
TO ISSUED AND OUTSTANDING CONVERTIBLE SECURITIES, OPTIONS OR WARRANTS, INCLUDING
THE WARRANTS TO BE ISSUED TO THE AGENT, THE CO-AGENT AND ANY SUB-AGENTS IN
CONNECTION WITH THIS TRANSACTION.
18
4.4
INTEGRATION.
THE COMPANY SHALL NOT, AND SHALL USE ITS BEST EFFORTS TO
ENSURE THAT NO AFFILIATE OF THE COMPANY SHALL, SELL, OFFER FOR SALE OR SOLICIT
OFFERS TO BUY OR OTHERWISE NEGOTIATE IN RESPECT OF ANY SECURITY (AS DEFINED IN
SECTION 2 OF THE SECURITIES ACT) THAT WOULD BE INTEGRATED WITH THE OFFER OR SALE
OF THE SECURITIES IN A MANNER THAT WOULD REQUIRE THE REGISTRATION UNDER THE
SECURITIES ACT OF THE SALE OF THE SECURITIES TO THE INVESTORS, OR THAT WOULD BE
INTEGRATED WITH THE OFFER OR SALE OF THE SECURITIES FOR PURPOSES OF THE RULES
AND REGULATIONS OF ANY TRADING MARKET IN A MANNER THAT WOULD REQUIRE SHAREHOLDER
APPROVAL OF THE SALE OF THE SECURITIES TO THE INVESTORS.
4.5
SUBSEQUENT REGISTRATIONS.
OTHER THAN PURSUANT TO THE REGISTRATION
STATEMENT, PRIOR TO THE EFFECTIVE DATE, THE COMPANY MAY NOT FILE ANY
REGISTRATION STATEMENT (OTHER THAN ON FORM S-8)
WITH THE COMMISSION WITH
RESPECT TO ANY SECURITIES OF THE COMPANY.
4.6
SECURITIES LAWS DISCLOSURE; PUBLICITY.
BY 9:30 A.M. (NEW YORK TIME) ON
THE TRADING DAY FOLLOWING THE EXECUTION OF THIS AGREEMENT, AND ON EACH CLOSING
DATE, THE COMPANY SHALL ISSUE PRESS RELEASES IN A FORM APPROVED BY THE INVESTORS
DISCLOSING THE TRANSACTIONS CONTEMPLATED HEREBY AND THE APPLICABLE CLOSING.
ON
THE TRADING DAY FOLLOWING THE EXECUTION OF THIS AGREEMENT THE COMPANY WILL FILE
A CURRENT REPORT ON FORM 8-K DISCLOSING THE MATERIAL TERMS OF THE TRANSACTION
DOCUMENTS (AND ATTACH AS EXHIBITS THERETO THE TRANSACTION DOCUMENTS) AS WELL AS
ALL OF THE INFORMATION DESCRIBED IN SCHEDULE 3.1(AA), AND ON EACH CLOSING DATE
THE COMPANY WILL FILE AN ADDITIONAL CURRENT REPORT ON FORM 8-K TO DISCLOSE THE
APPLICABLE CLOSING.
IN ADDITION, THE COMPANY WILL MAKE SUCH OTHER FILINGS AND
NOTICES IN THE MANNER AND TIME REQUIRED BY THE COMMISSION AND THE TRADING MARKET
ON WHICH THE COMMON STOCK IS LISTED.
NOTWITHSTANDING THE FOREGOING, THE COMPANY
SHALL NOT PUBLICLY DISCLOSE THE NAME OF ANY INVESTOR, OR INCLUDE THE NAME OF ANY
INVESTOR IN