A PRE-NOTICE), MAY CONSTITUTE MATERIAL NON-PUBLIC
INFORMATION AS DEFINED BY U.S. SECURITIES LAW REGULATION FD; AND (II) AGREES (A)
TO KEEP SUCH INFORMATION CONFIDENTIAL (B) NOT TO DISCLOSE SUCH INFORMATION TO
ANY THIRD-PARTY UNLESS AND UNTIL SUCH INFORMATION IS MADE PUBLICLY AVAILABLE BY
THE COMPANY, (C) TO OTHERWISE COMPLY WITH REGULATION FD AND (D) TO REFRAIN FROM
TRADING IN THE COMPANY'S COMMON STOCK UNTIL SUCH INFORMATION IS MADE PUBLICLY
AVAILABLE (OTHER THAN AS A RESULT OF A BREACH OF THIS SECTION 4.8).
4.9
USE OF PROCEEDS.
EXCEPT AS SET FORTH ON
SCHEDULE 4.9 ATTACHED HERETO, 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 IN THE ORDINARY COURSE OF THE COMPANY'S BUSINESS AND PRIOR PRACTICES),
TO REDEEM COMMON STOCK OR COMMON STOCK EQUIVALENTS OR TO SETTLE ANY OUTSTANDING
LITIGATION.
PRIOR TO THE RECEIPT OF SHAREHOLDER APPROVAL, THE COMPANY SHALL NOT
DECLARE OR PAY ANY CASH DIVIDEND ON ITS SHARES OF COMMON STOCK WHILE ANY SHARES
OF PREFERRED STOCK REMAIN OUTSTANDING.
4.10
REIMBURSEMENT.
IF ANY PURCHASER BECOMES INVOLVED
IN ANY CAPACITY IN ANY PROCEEDING BY OR AGAINST ANY PERSON WHO IS A STOCKHOLDER
OF THE COMPANY (EXCEPT AS A RESULT OF SALES, PLEDGES, MARGIN SALES AND SIMILAR
TRANSACTIONS BY SUCH PURCHASER TO OR WITH ANY CURRENT
26
STOCKHOLDER), SOLELY AS A RESULT OF SUCH PURCHASER'S ACQUISITION OF THE
SECURITIES UNDER 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.
THE REIMBURSEMENT OBLIGATIONS OF THE
COMPANY UNDER THIS PARAGRAPH SHALL BE IN ADDITION TO ANY LIABILITY WHICH THE
COMPANY MAY OTHERWISE HAVE, SHALL EXTEND UPON THE SAME TERMS AND CONDITIONS TO
ANY AFFILIATES OF THE PURCHASERS WHO ARE ACTUALLY NAMED IN SUCH ACTION,
PROCEEDING OR INVESTIGATION, AND PARTNERS, DIRECTORS, AGENTS, EMPLOYEES AND
CONTROLLING PERSONS (IF ANY), AS THE CASE MAY BE, OF THE PURCHASERS AND ANY SUCH
AFFILIATE, AND SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF ANY SUCCESSORS,
ASSIGNS, HEIRS AND PERSONAL REPRESENTATIVES OF THE COMPANY, THE PURCHASERS AND
ANY SUCH AFFILIATE AND ANY SUCH PERSON.
THE COMPANY ALSO AGREES THAT NEITHER
THE PURCHASERS NOR ANY SUCH AFFILIATES, PARTNERS, DIRECTORS, AGENTS, EMPLOYEES
OR CONTROLLING PERSONS SHALL HAVE ANY LIABILITY TO THE COMPANY OR ANY PERSON
ASSERTING CLAIMS ON BEHALF OF OR IN RIGHT OF THE COMPANY SOLELY AS A RESULT OF
ACQUIRING THE SECURITIES UNDER THIS AGREEMENT, UNLESS SUCH ACTION IS BASED UPON
A BREACH OF SUCH PURCHASER'S REPRESENTATIONS, WARRANTIES OR COVENANTS UNDER THE
TRANSACTION DOCUMENTS.
4.11
INDEMNIFICATION OF PURCHASERS.
SUBJECT TO THE
PROVISIONS OF THIS SECTION 4.11, THE COMPANY WILL INDEMNIFY AND HOLD THE
PURCHASERS AND THEIR DIRECTORS, OFFICERS, SHAREHOLDERS, PARTNERS, EMPLOYEES AND
AGENTS (EACH, A "PURCHASER PARTY") HARMLESS FROM ANY AND ALL LOSSES,
LIABILITIES, OBLIGATIONS, CLAIMS, CONTINGENCIES, DAMAGES, COSTS AND EXPENSES,
INCLUDING