ANY
MATERIAL, NONPUBLIC INFORMATION REGARDING THE COMPANY OR ANY OF ITS SUBSIDIARIES
FROM AND AFTER THE FILING OF THE 8-K FILING WITH THE COMPANY WITHOUT THE EXPRESS
WRITTEN CONSENT OF SUCH PURCHASER. SUBJECT TO THE FOREGOING, NEITHER THE COMPANY
NOR ANY PURCHASER SHALL ISSUE ANY PRESS RELEASES OR ANY OTHER PUBLIC STATEMENTS
WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED HEREBY; PROVIDED, HOWEVER, THAT
THE COMPANY SHALL BE ENTITLED, WITHOUT THE PRIOR APPROVAL OF ANY PURCHASER, TO
MAKE ANY OTHER
16
PRESS RELEASE OR OTHER PUBLIC DISCLOSURE WITH RESPECT TO SUCH TRANSACTIONS (I)
IN SUBSTANTIAL CONFORMITY WITH THE 8-K FILING AND CONTEMPORANEOUSLY THEREWITH,
AND (II) AS IS REQUIRED BY APPLICABLE LAW AND REGULATIONS, INCLUDING THE
APPLICABLE RULES AND REGULATIONS OF THE AMERICAN STOCK EXCHANGE (PROVIDED THAT
IN THE CASE OF CLAUSE (I) ABOVE, EACH PURCHASER SHALL BE NOTIFIED BY THE COMPANY
(ALTHOUGH THE CONSENT OF SUCH PURCHASER SHALL NOT BE REQUIRED) IN CONNECTION
WITH ANY SUCH PRESS RELEASE OR OTHER PUBLIC DISCLOSURE PRIOR TO ITS RELEASE).
SECTION 3.10
DELIVERY OF SECURITIES. AT CLOSING
OR AS SOON THEREAFTER AS REASONABLY POSSIBLE (BUT IN ANY EVENT NO LATER THAN
FIVE BUSINESS DAYS IMMEDIATELY FOLLOWING THE CLOSING DATE), THE COMPANY SHALL
DELIVER TO EACH PURCHASER CERTIFICATES REPRESENTING THE SHARES (IN SUCH
DENOMINATIONS AS EACH PURCHASER MAY REQUEST), AND THE ORIGINAL WARRANTS AND
AIRS, ACQUIRED BY SUCH PURCHASER AT THE CLOSING.
SECTION 3.11
NO SHORTING OF STOCK. EACH PURCHASER
REPRESENTS AND WARRANTS TO THE COMPANY THAT, DURING THE PERIOD BEGINNING ON THE
DATE SUCH PURCHASER WAS INITIALLY CONTACTED BY THE COMPANY OR AN AGENT THEREOF
WITH RESPECT TO A PROSPECTIVE INVESTMENT IN THE COMPANY AND ENDING ON THE DATE
HEREOF, SUCH PURCHASER HAS NOT SOLD SHORT (OR ENTERED INTO ANY OTHER SIMILAR
HEDGING TRANSACTION WITH RESPECT TO) THE SHARES OF THE COMPANY'S COMMON STOCK.
EACH PURCHASER, SEVERALLY AND NOT JOINTLY WITH THE OTHER PURCHASERS, UNDERSTANDS
AND ACKNOWLEDGES THAT THE COMMISSION CURRENTLY TAKES THE POSITION THAT COVERAGE
OF SHORT SALES OF SHARES OF THE COMMON STOCK "AGAINST THE BOX" WITH THE
SECURITIES PURCHASED HEREUNDER PRIOR TO THE EFFECTIVE DATE OF THE REGISTRATION
STATEMENT IS A VIOLATION OF SECTION 5 OF THE SECURITIES ACT, AS SET FORTH IN
ITEM 65, SECTION 5 UNDER SECTION A, OF THE MANUAL OF PUBLICLY AVAILABLE
TELEPHONE INTERPRETATIONS, DATED JUNE 1997, COMPILED BY THE OFFICE OF CHIEF
COUNSEL, DIVISION OF CORPORATE FINANCE. ACCORDINGLY, EACH PURCHASER HEREBY
AGREES (ON BEHALF OF ITSELF OR ANY PERSON OVER WHICH IT HAS DIRECT CONTROL) NOT
TO USE ANY OF THE SECURITIES TO COVER ANY SHORT SALES, HEDGING OR SIMILAR
TRANSACTIONS WITH THE SAME ECONOMIC EFFECT AS A SHORT SALE, MADE PRIOR TO THE
EFFECTIVE DATE OF THE REGISTRATION STATEMENT. ADDITIONALLY, EACH PURCHASER,
SEVERALLY AND NOT JOINTLY WITH THE OTHER PURCHASERS, AGREES TO COMPLY WITH
REGULATION M UNDER THE FEDERAL SECURITIES LAWS.
SECTION 3.12
SUBSEQUENT FINANCINGS.
(a)
Until the first anniversary of the Closing
Date, the Company hereby grants to each Purchaser (but not its assigns) that (A)
still owns Shares purchased hereunder immediately prior to the