HEREBY (THE "PRESS RELEASE") ON THE DAY OF THE CLOSING (BUT IN NO EVENT LATER
THAN TWO (2) HOURS AFTER THE CLOSING); PROVIDED, HOWEVER, THAT IF CLOSING OCCURS
AFTER 4:00 P.M. EASTERN TIME ON ANY TRADING DAY, THE COMPANY SHALL ISSUE THE
PRESS RELEASE NO LATER THAN 9:00 A.M. EASTERN TIME ON THE FIRST TRADING DAY
FOLLOWING THE CLOSING DATE.
THE COMPANY SHALL ALSO FILE WITH THE COMMISSION A
CURRENT REPORT ON FORM 8-K (THE "FORM 8-K") DESCRIBING THE MATERIAL TERMS OF THE
TRANSACTIONS CONTEMPLATED HEREBY (AND ATTACHING AS EXHIBITS THERETO THIS
AGREEMENT, THE NOTE, THE REGISTRATION RIGHTS AGREEMENT AND THE FORM OF WARRANT)
AS SOON AS PRACTICABLE FOLLOWING THE CLOSING DATE BUT IN NO EVENT MORE THAN
THREE (3) TRADING DAYS FOLLOWING THE CLOSING DATE, WHICH PRESS RELEASE AND FORM
8-K SHALL BE SUBJECT TO PRIOR REVIEW AND COMMENT BY COUNSEL TO THE PURCHASERS.
"TRADING DAY" MEANS ANY DAY DURING WHICH THE PRINCIPAL EXCHANGE ON WHICH THE
COMMON STOCK IS TRADED SHALL BE OPEN FOR TRADING.
SECTION 3.12
DISCLOSURE OF MATERIAL 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; PROVIDED, HOWEVER, NOTHING HEREIN SHALL EXCUSE SUCH PURCHASER FROM
COMPLIANCE WITH ALL APPLICABLE FEDERAL AND STATE SECURITIES LAWS REGARDING THE
PURCHASE OR SALE OF SECURITIES WHILE IN POSSESSION OF MATERIAL NON-PUBLIC
INFORMATION.
SECTION 3.13
PLEDGE OF SECURITIES.
THE COMPANY ACKNOWLEDGES AND
AGREES THAT, SUBJECT TO COMPLIANCE WITH APPLICABLE FEDERAL AND STATE SECURITIES
LAWS, THE SECURITIES MAY BE PLEDGED BY A PURCHASER IN CONNECTION WITH A BONA
FIDE MARGIN AGREEMENT OR OTHER LOAN OR FINANCING ARRANGEMENT THAT IS SECURED BY
THE SECURITIES.
SUBJECT TO COMPLIANCE WITH APPLICABLE FEDERAL AND STATE
SECURITIES LAWS, THE PLEDGE OF SECURITIES SHALL NOT BE DEEMED TO BE A TRANSFER,
SALE OR ASSIGNMENT OF THE SECURITIES HEREUNDER, AND NO PURCHASER EFFECTING A
PLEDGE OF THE SECURITIES SHALL BE REQUIRED TO PROVIDE THE COMPANY WITH ANY
NOTICE THEREOF OR OTHERWISE MAKE ANY DELIVERY TO THE COMPANY PURSUANT TO THIS
AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT; PROVIDED THAT A PURCHASER AND ITS
PLEDGEE SHALL BE REQUIRED TO COMPLY WITH THE PROVISIONS OF ARTICLE V HEREOF IN
ORDER TO EFFECT A SALE, TRANSFER OR ASSIGNMENT OF SECURITIES TO SUCH PLEDGEE AND
WITH ALL APPLICABLE FEDERAL AND STATE SECURITIES LAWS. AT THE PURCHASERS'
EXPENSE, THE COMPANY HEREBY AGREES TO EXECUTE AND DELIVER SUCH DOCUMENTATION AS
A PLEDGEE OF THE SECURITIES MAY REASONABLY REQUEST IN CONNECTION WITH A PLEDGE
OF THE SECURITIES TO SUCH PLEDGEE BY A PURCHASER.
18
SECTION 3.14
REGISTRATION STATEMENTS.
EXCEPT IN CONNECTION WITH A
PERMITTED FINANCING, THE COMPANY SHALL NOT FILE ANY REGISTRATION