REQUIRED
BY THE SEC OR APPLICABLE LAW WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED
HEREBY AND PROVIDE COPIES THEREOF TO THE INVESTORS PROMPTLY AFTER FILING.
INVESTORS COMPANY SHALL, AT LEAST TWO TRADING DAYS PRIOR TO THE FILING OR
DISSEMINATION OF ANY DISCLOSURE REQUIRED BY THIS PARAGRAPH, PROVIDE A COPY
THEREOF TO THE INVESTORS FOR THEIR REVIEW.
THE COMPANY AND THE INVESTORS SHALL
CONSULT WITH EACH OTHER IN ISSUING ANY PRESS RELEASES OR OTHERWISE MAKING PUBLIC
STATEMENTS OR FILINGS AND OTHER COMMUNICATIONS WITH THE SEC OR ANY REGULATORY
AGENCY OR TRADING MARKET WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED HEREBY,
AND NEITHER PARTY SHALL ISSUE ANY SUCH PRESS RELEASE OR OTHERWISE MAKE ANY SUCH
PUBLIC STATEMENT, FILING OR OTHER COMMUNICATION WITHOUT THE PRIOR CONSENT OF THE
OTHER, EXCEPT IF SUCH DISCLOSURE IS REQUIRED BY LAW, IN WHICH CASE THE
DISCLOSING PARTY SHALL PROMPTLY PROVIDE THE OTHER PARTY WITH PRIOR NOTICE OF
SUCH PUBLIC STATEMENT, FILING OR OTHER COMMUNICATION.
NOTWITHSTANDING THE
FOREGOING, THE COMPANY SHALL NOT PUBLICLY DISCLOSE THE NAME OF ANY INVESTOR, OR
INCLUDE THE NAME OF ANY INVESTOR IN ANY PRESS RELEASE WITHOUT THE PRIOR WRITTEN
CONSENT OF SUCH INVESTOR.
EXCEPT AS REQUIRED UNDER THE TRANSACTION DOCUMENTS,
THE COMPANY SHALL NOT, AND SHALL CAUSE EACH OF ITS SUBSIDIARIES AND ITS AND EACH
OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS NOT TO, PROVIDE
ANY INVESTOR WITH ANY MATERIAL NONPUBLIC INFORMATION REGARDING THE COMPANY OR
ANY OF ITS SUBSIDIARIES FROM AND AFTER THE ISSUANCE OF THE ABOVE REFERENCED
PRESS RELEASE WITHOUT THE EXPRESS WRITTEN CONSENT OF SUCH INVESTOR.
4.6
USE OF PROCEEDS.
WITHIN TWO BUSINESS DAYS OF THE CLOSING, THE COMPANY
SHALL USE THE NET PROCEEDS FROM THE SALE OF THE SECURITIES TO REDEEM THE
OUTSTANDING PRINCIPAL AMOUNT, PLUS ALL ACCRUED AND UNPAID INTEREST ON SUCH
PRINCIPAL AMOUNT (THE "REDEMPTION"), UNDER (A) THE 2006 SENIOR SECURED NOTE AND
(B) THAT CERTAIN PROMISSORY NOTE, DATED MARCH 23, 2006, AS AMENDED ON MARCH 27,
2007 AND ATTACHED HERETO AS EXHIBIT E (THE "2006 PROMISSORY NOTE", AND TOGETHER
WITH THE 2006 SENIOR SECURED NOTE, THE "2006 NOTES").
THE COMPANY SHALL USE THE
REMAINING NET PROCEEDS FROM THE SALE OF THE SECURITIES FOR WORKING CAPITAL AND
GENERAL CORPORATE PURPOSES.
PENDING USE FOR WORKING CAPITAL AND GENERAL
CORPORATE PURPOSES, THE COMPANY INTENDS TO INVEST THE NET PROCEEDS FROM THIS
OFFERING IN SHORT-TERM, INTEREST-BEARING, INVESTMENT-GRADE SECURITIES, OR AS
OTHERWISE PURSUANT TO THE COMPANY'S CUSTOMARY INVESTMENT POLICIES.
4.7
.
SHORT SALES.
THE INVESTOR REPRESENTS, WARRANTS AND AGREES THAT, SINCE
THE DATE ON WHICH ANY OF THE COMPANY OR FIRST CONTACTED THE INVESTOR ABOUT THE
POTENTIAL SALE OF THE SECURITIES, IT HAS NOT ENGAGED IN ANY TRANSACTIONS IN THE
SECURITIES OF THE COMPANY (INCLUDING, WITHOUT LIMITATION, ANY SHORT SALES
INVOLVING THE COMPANY'S SECURITIES).
SUCH INVESTOR COVENANTS THAT IT WILL NOT
ENGAGE IN ANY TRANSACTIONS IN THE SECURITIES OF THE COMPANY (INCLUDING SHORT
SALES) PRIOR TO THE TIME THAT THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT
ARE PUBLICLY DISCLOSED.
SUCH INVESTOR FURTHER COVENANTS THAT IT WILL NOT ENGAGE
IN ANY SHORT SALES IN