Common use of SALES OF ADDITIONAL SHARES Clause in Contracts

SALES OF ADDITIONAL SHARES. The Company shall not, directly or indirectly, without the prior written consent of the Purchaser, offer, sell, offer to sell, contract to sell or otherwise dispose of any shares of its capital stock or any security or other instrument convertible into or exchangeable for shares of Common Stock, in each case for a period of two- hundred and seventy (270) days after the later of (A) the Initial Closing Date, (B) any Supplemental Closing Date (as defined in the Supplemental Warrant) or (C) the date on which a registration statement relating to Common Stock issuable upon conversion of any of the Initial Shares, the Initial Warrants, the Additional Shares, or the Additional Warrants is declared effective by the Securities and Exchange Commission (the "Lock-Up Period"), except that the Company (i) may issue securities for the aggregate consideration of at least ten million dollars ($10,000,000) in connection with a bona fide, firm commitment, underwritten public offering under the Securities Act; (ii) may issue shares of Common Stock which are issued in connection with a bona fide transaction involving the acquisition of another business entity or segment of any such entity by the Company by merger, asset, purchase, stock purchase or otherwise; (iii) may issue Common Stock in connection with a stock split, stock dividend or similar recapitalization of the Company which affects all holders of the Company's Common Stock on an equivalent basis, in each case, without the prior written consent of the Purchaser and (iv) may issue up to one million (1,000,000) shares of Common Stock at an aggregate price of at least eight dollars ($8.00) per share pursuant to that Confidential Private Placement Memorandum of the Company, dated February 9, 2000 (the "PPM Offering"). In addition, the Company agrees that it will not cause any shares of its capital stock that are issued in connection with a transaction of the type contemplated by clause (ii) (or upon the conversion or exercise of other securities that are issued in connection with such transaction) or that were issued in connection with financing, acquisition or other transaction that occurred prior or subsequent to the date of this Agreement, including, the PPM Offering, to be covered by a registration statement that is filed with the Commission or declared effective by the Commission until the later to occur of (A) the expiration of the Lock- Up Period or (B) the registration statement filed by the Company pursuant to its obligations under the Registration Rights Agreement has been effective under the Securities Act for a period of at least two hundred seventy (270) days, during which two hundred seventy (270) day period the Company shall not have notified the Purchaser that such registration statement or the prospectus included in such registration statement includes an untrue statement of a material fact or omits to state a material fact required to be stated therein in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Notwithstanding anything herein to the contrary, the Company may register the fifty thousand (50,000) shares of Common Stock, described on Schedule 4(h) attached hereto, on the registration statement which the Company shall file pursuant to its obligations under the Registration Rights Agreement, provided, however, that in the event that the Commission challenges the inclusion of such shares, the Company shall remove them from such registration statement.

SALES OF ADDITIONAL SHARES. The Company shall not, directly or indirectly, without the prior written consent of the Purchaser, offer, sell, offer to sell, contract to sell or otherwise dispose of any shares of its capital stock or any security or other instrument convertible into or exchangeable for shares of Common Stock, in each case for a period commencing on the date hereof and ending on the earlier of two- (i) one hundred and seventy eighty (270180) days after the later of (A) the Initial Closing Date, (B) any Supplemental Closing Date (as defined in the Supplemental Warrant) or (C) the date on which a registration statement relating to Common Stock issuable upon conversion of any of the Initial SharesWarrants and the Debentures, the Initial Warrants, the Additional Shares, or the Additional Warrants is declared effective by the Securities and Exchange Commission or (ii) the date on which Purchaser shall have converted all of the Debentures into Common Stock (the "Lock-Up Period"), except that the Company (i) may issue securities for the aggregate consideration of at least ten $7.5 million dollars ($10,000,000) in connection with a bona fide, firm commitment, underwritten public offering under the Securities Act; and (ii) may issue shares of Common Stock which are issued in connection with a bona fide transaction involving upon the acquisition exercise or conversion of another business entity or segment of any such entity by the Company by mergercurrently outstanding options, asset, purchase, stock purchase or otherwisewarrants and other convertible securities; (iii) may issue options to purchase up to 1,000,000 shares of its Common Stock to its directors, officers and employees in connection with a its existing stock split, stock dividend or similar recapitalization of the Company which affects all holders of the Company's Common Stock on an equivalent basis, in each case, without the prior written consent of the Purchaser and (iv) may issue up to one million (1,000,000) shares of Common Stock at an aggregate price of at least eight dollars ($8.00) per share pursuant to that Confidential Private Placement Memorandum of the Company, dated February 9, 2000 (the "PPM Offering")option plans. In addition, the Company agrees that it will not cause any shares of its capital stock that are issued in connection with a transaction of the type contemplated by such clause (ii) (or upon the conversion or exercise of other securities that are issued in connection with such transaction) or that were issued in connection with any financing, acquisition or other transaction that occurred prior or subsequent to the date of this Agreement, including, the PPM Offering, agreement to be covered by a registration statement that is filed with the Commission or declared effective by the Commission until the later to occur of (A) the expiration of the Lock- Lock-Up Period or (B) the registration statement filed by the Company pursuant to its obligations under the Registration Rights Agreement has been effective under the Securities Act for a period of at least two one-hundred seventy and eighty (270180) days, during which two hundred seventy (270) day period the Company shall not have notified the Purchaser that such registration statement or the prospectus included in such registration statement includes an untrue statement of a material fact or omits to state a material fact required to be stated therein in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Notwithstanding anything herein to the contrary, the Company may register the fifty thousand (50,000) shares of Common Stock, described on Schedule 4(h) attached hereto, on the registration statement which the Company shall file pursuant to its obligations under the Registration Rights Agreement, provided, however, that in the event that the Commission challenges the inclusion of such shares, the Company shall remove them from such registration statement.

SALES OF ADDITIONAL SHARES. The Company shall not, directly or indirectly, without the prior written consent of the Purchaser, offer, sell, offer to sell, contract to sell or otherwise dispose of any shares of its capital stock securities or any security or other instrument convertible into or exchangeable for shares of Common Stockits capital stock, in each case case, for a period of two- hundred and seventy (270) days after ending on the later of (Ax) 180 days after the Initial Closing Date, (B) any Supplemental Closing Date (as defined in the Supplemental Warrant) date of this Agreement or (Cy) 180 days after the date on which a registration statement relating to Common Stock issuable upon conversion of any of the Initial Shares, the Initial Warrants, the Additional Shares, or the Additional Warrants is Registration Statement has been declared effective by the Securities and Exchange Commission (the "Lock-Up Period"), except that the Company may (i) may issue securities for the aggregate consideration of at least ten $8 million dollars ($10,000,000) in connection with a bona fide, firm commitment, underwritten public offering under the Securities Act; (ii) issue securities for the aggregate consideration of at least $8 million in connection with a private placement involving a bona fide placement agent; provided, however, that such securities may not be exercisable or convertible at a floating rate or at a discount to the market price; (iii) issue shares of Common Stock which are issued in connection with a bona fide transaction involving the acquisition of another business entity or segment of any such entity by the Company by merger, asset, asset purchase, stock purchase or otherwise; (iiiiv) issue shares of Common Stock in exchange for $1.1 million in debt outstanding to ____________, provided, however, that such debt may only be exchanged for or converted to Common Stock at no less than market price at the time of such exchange or conversion; (v) issue shares of Common Stock to directors, officers, employees or consultants of the Company for the primary purpose of soliciting or retaining their services in an aggregate amount, together with any New Options (as defined below) vesting or becoming exercisable during the Lock-Up Period, not to exceed 500,000 shares; (vi) issue shares of Common Stock upon the exercise or conversion of currently outstanding options, warrants and other convertible securities and up to 500,000 shares of Common Stock underlying New Options as provided in clause (vii) below; (vii) issue options to purchase shares of its Common Stock to its directors, officers, employees and consultants in connection with its existing stock option plans; provided, that, during the Lock-Up Period, only New Options to purchase not more than 500,000 shares of Common Stock may vest or become exercisable; (viii) issue Common Stock in connection with a stock split, stock dividend or similar recapitalization of the Company which affects all holders of the Company's Common Stock on an equivalent basis, in each case, without the prior written consent of the Purchaser and (iv) may issue up to one million (1,000,000) shares of Common Stock at an aggregate price of at least eight dollars ($8.00) per share pursuant to that Confidential Private Placement Memorandum of the Company, dated February 9, 2000 (the "PPM Offering")Purchaser. In addition, the Company agrees that it will not cause any shares of its capital stock that are issued in connection with a transaction of the type contemplated by clause (ii) above (or upon the conversion or exercise of other securities that are issued in connection with such transaction) or that were issued in connection with any financing, acquisition or other transaction that occurred prior or subsequent to the date of this Agreement, including, the PPM Offering, to be covered by a registration statement that is filed with the Commission or declared effective by the Commission until the later to occur of (A) the expiration of the Lock- Up Period or (B) the a registration statement covering the Warrants and the Common Stock underlying the Debentures and the Warrants that was filed by the Company pursuant to its obligations under the Registration Rights Agreement has been effective for at least 180 days; except for any registration statement as may be filed in connection with a bona fide, firm commitment underwritten public offering under the Securities Act for a period of at least two hundred seventy (270) days, during which two hundred seventy (270) day period the Company shall not have notified the Purchaser that such registration statement or the prospectus included in such registration statement includes an untrue statement of a material fact or omits to state a material fact required to be stated therein in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Notwithstanding anything herein to the contrary, the Company may register the fifty thousand (50,000) shares of Common Stock, described on Schedule 4(h) attached hereto, on the registration statement which the Company shall file pursuant to its obligations under the Registration Rights Agreement, provided, however, that in the event that the Commission challenges the inclusion of such shares, the Company shall remove them from such registration statementAct.

SALES OF ADDITIONAL SHARES. The Company shall not, directly or indirectly, without the prior written consent of the Purchaser, offer, sell, offer to sell, contract to sell or otherwise dispose of any shares of its capital stock securities or any security or other instrument convertible into or exchangeable for shares of Common Stockits capital stock (each a "Capital Issuance Event"), in each case case, for a period of two- beginning on the date hereof and ending two hundred and seventy (270) days after the later of (A) the Initial Closing Date, (B) any Supplemental Closing Date Registration Statement (as defined in the Supplemental WarrantRegistration Rights Agreement) or (C) the date on which a registration statement relating to Common Stock issuable upon conversion of any of the Initial Shares, the Initial Warrants, the Additional Shares, or the Additional Warrants is declared effective by the Securities and Exchange Commission (the "Lock-Up Period"), except that the Company may (i) may issue securities for the aggregate consideration of at least ten $15 million dollars ($10,000,000) in connection with a bona fide, firm commitment, underwritten public offering under the Securities Act; (ii) may issue shares of Common Stock which are issued in connection with a bona fide transaction involving the acquisition of another business entity or segment of any such entity by the Company by merger, asset, purchase, stock purchase or otherwise; and (iii) may issue Common common Stock in connection with a stock split, stock dividend or similar recapitalization of the Company which affects all holders of the Company's Common Stock on an equivalent basis, in each case, without the prior written consent of the Purchaser and (iv) may issue up to one million (1,000,000) shares Purchaser. Upon the occurrence of Common Stock a Capital Issuance Event in violation of this Section 4h, at an aggregate the option of the Purchaser, the Company shall redeem the Debentures at a redemption price of at least eight dollars one hundred twenty percent ($8.00120%) per share pursuant to that Confidential Private Placement Memorandum of the Company, dated February 9, 2000 principal amount hereof plus accrued and unpaid interest thereon. The Company shall give the Purchaser five (5) days prior written notice of the "PPM Offering")occurrence of a Capital Issuance Event in violation of this Section 4h. In addition, the Company agrees that it will not cause any shares of its capital stock that are issued in connection with a transaction of the type contemplated by clause (ii) (or upon the conversion or exercise of other securities that are issued in connection with such transaction) or that were issued in connection with financing, acquisition or other transaction that occurred prior or subsequent to the date of this Agreement, including, the PPM Offering, Agreement to be covered by a registration statement that is filed with the Commission or declared effective by the Commission until prior to the later to occur of (A) time that the expiration of Debentures and the Lock- Up Period Warrants and Common Stock issuable upon conversion or (B) the exercise thereof are covered by a registration statement filed by the Company pursuant to its obligations under the Registration Rights Agreement has been effective under the Securities Act for a period of at least two one hundred seventy eighty (270180) days, days during which two one hundred seventy eighty (270180) day period the Company shall has not have notified the Purchaser that such registration statement or the prospectus included in such registration statement includes an untrue statement of a material fact or omits to state a material fact required to be stated therein in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Notwithstanding anything herein to the contrary, the Company may register the fifty thousand (50,000) shares of Common Stock, described on Schedule 4(h) attached hereto, on the registration statement which the Company shall file pursuant to its obligations under the Registration Rights Agreement, provided, however, that in the event that the Commission challenges the inclusion of such shares, the Company shall remove them from such registration statement.

SALES OF ADDITIONAL SHARES. The Company shall not, directly or indirectly, -------------------------- without the prior written consent of the Purchaser, offer, sell, offer to sell, contract to sell or otherwise dispose of any shares of its capital stock securities or any security or other instrument convertible into or exchangeable for shares of Common Stockits capital stock, in each case case, for a period of two- beginning on the date hereof and ending two hundred and seventy (270) days after the later of (A) the Initial Closing Date, (B) any Supplemental Closing Date initial Registration Statement (as defined in the Supplemental WarrantRegistration Rights Agreement) or (C) filed pursuant to the date on which a registration statement relating to Common Stock issuable upon conversion of any of the Initial Shares, the Initial Warrants, the Additional Shares, or the Additional Warrants Registration Rights Agreement is declared effective by the Securities and Exchange Commission (the "Lock-Up Period"), except -------------- that the Company may (i) may issue securities for the aggregate consideration of at least ten fifteen million dollars ($10,000,00015,000,000) in connection with a bona fide, firm commitment, underwritten public offering under the Securities Act; (ii) may issue shares of Common Stock which are issued in connection with a bona fide transaction involving the acquisition of another business entity or segment of any such entity by the Company by merger, asset, purchase, stock purchase or otherwiseotherwise or in connection with a transaction involving a strategic partner provided that the related issuance of Common Stock is at a price which is not less than ten percent (10%) of the Per Share Market Value (as defined in the Initial Debenture) at the time of closing of such transaction; (iii) may issue shares of Common Stock at a price which is not less than eighty percent (80%) of the Per Share Market Value at the time of closing of such issuance, provided that such issuance is at a price of not less than six dollars ($6.00) per share, and provided, further, that the Company may not grant any registration rights in connection with such shares issued in such issuance unless the Registration Statement (as defined in the Registration Rights Agreement) filed by the Company covering the Underlying Shares for the Initial Debentures, Initial Warrants and the Debentures and Warrants purchasable in Tranche I (as defined in the Registration Rights Agreement) pursuant to the Conditional Warrant has been effective for a period of not less than thirty (30) days; (iv) may issue shares of common stock to directors, officers, employees or consultants of the Company for the primary purpose of soliciting or retaining their services in an aggregate amount, together with any New Options (as defined below) vesting or becoming exercisable during the Lock Up Period; not to exceed one hundred ninety thousand nine hundred seventy five (190,975) shares; (v) may issue shares of Common Stock upon the exercise or conversion of currently outstanding options, warrants and other convertible securities and up to one hundred ninety thousand nine hundred seventy five (190,975) shares of Common Stock underlying New Options as provided in clause (vi) below; (vi) may issue options to purchase shares of its Common Stock to its directors, officers, employees and consultants in connection with its existing stock option plans ("New Options"); provided, that one hundred ninety thousand nine hundred seventy five (190,975) shares of Common Stock shall vest or become exercisable; and (vii) may issue Common Stock in connection with a stock split, stock dividend or similar recapitalization of the Company which affects all holders of the Company's Common Stock on an equivalent basis, in each case, without the prior written consent of the Purchaser and (iv) may issue up to one million (1,000,000) shares of Common Stock at an aggregate price of at least eight dollars ($8.00) per share pursuant to that Confidential Private Placement Memorandum of the Company, dated February 9, 2000 (the "PPM Offering")Purchaser. In addition, the Company agrees that it will not cause any shares of its capital stock that are issued in connection with a transaction of the type contemplated by clause (ii) (or upon the conversion or exercise of other securities that are issued in connection with such transaction) or that were issued in connection with financing, acquisition or other transaction that occurred prior or subsequent to the date of this Agreement, including, the PPM Offering, Agreement to be covered by a registration statement Registration Statement that is filed with the Commission or declared effective by the Commission until prior to the later to occur of (A) time that the expiration of Debentures and the Lock- Up Period Warrants and Common Stock issuable upon conversion or (B) the registration statement exercise thereof are covered by a Registration Statement filed by the Company pursuant to its obligations under the Registration Rights Agreement has been effective under the Securities Act for a period of at least two one hundred seventy eighty (270) days, during which two hundred seventy (270180) day period during which the Company shall has not have notified the Purchaser that such registration statement Registration Statement or the prospectus included in such registration statement Registration Statement includes an untrue statement of a material fact or omits to state a material fact required to be stated therein in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Notwithstanding anything herein to the contrary, the Company may register the fifty thousand (50,000) shares of Common Stock, described on Schedule 4(h) attached hereto, on the registration statement which the Company shall file pursuant to its obligations under the Registration Rights Agreement, provided, however, that in the event that the Commission challenges the inclusion of such shares, the Company shall remove them from such registration statement.

SALES OF ADDITIONAL SHARES. The Company shall not, directly or indirectly, without the prior written consent of the Purchaser, offer, sell, offer to sell, contract to sell or otherwise dispose of any shares of its capital stock or any security or other instrument convertible into or exchangeable for shares of Common Stock, in each case for a period of two- two-hundred and seventy (270) days after the later of (A) the Initial Closing Date, (B) any Supplemental Closing Date (as defined in the Supplemental Warrant) or (C) the date on which a registration statement relating to Common Stock issuable upon conversion of any of the Initial Shares, the Initial Warrants, the Additional Shares, or the Additional Warrants is declared effective by the Securities and Exchange Commission (the "Lock-Up Period"), except that the Company (i) may issue securities for the aggregate consideration of at least ten seven million dollars ($10,000,0007,000,000) in connection with a bona fide, firm commitment, underwritten public offering under the Securities ActAct (it being acknowledged and agreed that equity line transactions, including, without limitation, ongoing warrant financing or any similar arrangements, shall not constitute a bona fide, firm commitment, underwritten public offering for purposes hereof); (ii) may issue shares of Common Stock which are issued in connection with a bona fide transaction involving the acquisition of another business entity or segment of any such entity by the Company by merger, asset, asset purchase, stock purchase or otherwise; (iii) may issue shares of Common Stock upon the exercise or conversion of currently outstanding options, warrants and other convertible securities identified on Schedule 3(b) hereto; (iv) may issue options to purchase shares of its Common Stock to its directors, officers, employees and consultants in connection with its stock option plans approved by the Board of Directors of the Company ("New Options"); provided, that, during the Lock-Up Period, New Options to purchase not more than 500,000 shares of Common Stock shall vest or become exercisable; and (v) may issue Common Stock in connection with a stock split, stock dividend or similar recapitalization of the Company which affects all holders of the Company's Common Stock on an equivalent basis, in each case, without the prior written consent of the Purchaser and (iv) may issue up to one million (1,000,000) shares of Common Stock at an aggregate price of at least eight dollars ($8.00) per share pursuant to that Confidential Private Placement Memorandum of the Company, dated February 9, 2000 (the "PPM Offering")Purchaser. In addition, the Company agrees that it will not cause any shares of its capital stock that are issued in connection with a transaction of the type contemplated by clause (ii) (or upon the conversion or exercise of other securities that are issued in connection with such transaction) or that were issued in connection with financing, acquisition or other transaction that occurred prior or subsequent to the date of this Agreement, including, the PPM Offering, Agreement to be covered by a registration statement that is filed with the Commission or declared effective by the Commission until the later to occur of (A) the expiration of the Lock- Lock-Up Period Period, or (B) the registration statement filed by the Company pursuant to its obligations under the Registration Rights Agreement has been effective under the Securities Act for a period of at least two hundred seventy (270) days, during days (which two hundred seventy (270) day period the Company shall need not have notified the Purchaser that such registration statement or the prospectus included in such registration statement includes an untrue statement consist of a material fact or omits to state a material fact required to be stated therein in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Notwithstanding anything herein to the contrary, the Company may register the fifty thousand (50,000) shares of Common Stock, described on Schedule 4(h) attached hereto, on the registration statement which the Company shall file pursuant to its obligations under the Registration Rights Agreement, provided, however, that in the event that the Commission challenges the inclusion of such shares, the Company shall remove them from such registration statementconsecutive days).

SALES OF ADDITIONAL SHARES. The Company shall not, directly or indirectly, without the prior written consent of the PurchaserWest End, offer, sell, offer to sell, contract to sell or otherwise dispose of any shares of its capital stock or any security or other instrument convertible into or exchangeable for shares of Common Stock, in each case for a period of two- two hundred and seventy (270) days after the later date of (A) the Initial Closing Date, (B) any Supplemental Closing Date (as defined in the Supplemental Warrant) or (C) the date on which a registration statement relating to Common Stock issuable upon conversion of any of the Initial Shares, the Initial Warrants, the Additional Shares, or the Additional Warrants is declared effective by the Securities and Exchange Commission this Agreement (the "Lock-Up Period"), except that the Company may (i) may issue securities for the aggregate consideration of at least ten $15.0 million dollars ($10,000,000) in connection with a bona fide, firm commitment, underwritten public offering under the Securities Act; (ii) may issue shares of Common Stock or securities convertible into, or exercisable for, shares of Common Stock which are issued in connection with a bona fide transaction involving the acquisition of another business entity or segment of any such entity by the Company by merger, asset, asset purchase, stock purchase or otherwise; (iii) may issue securities to directors, officers, employees or consultants of the Company for the primary purpose of soliciting or retaining their services; (iv) may issue shares of Common Stock upon the exercise or conversion of currently outstanding options, warrants and other convertible securities; (v) may issue options to purchase shares of its Common Stock to its directors, officers and employees in connection with its existing stock option plans; and (vi) may issue Common Stock in connection with a stock split, stock dividend or similar recapitalization of the Company which affects all holders of the Company's Common Stock on an equivalent basis, in each case, without the prior written consent of West End. Notwithstanding the Purchaser and (iv) forgoing, a transaction may issue up to one million (1,000,000) shares of Common Stock at an aggregate price of at least eight dollars ($8.00) per share only be effected pursuant to that Confidential Private Placement Memorandum clause (ii) above during the Lock-up Period without the prior written consent of West End if the proceeds to the Company from such a transaction are immediately used by the Company to effect an acquisition transaction of the Company, dated February 9, 2000 (the "PPM Offering")type contemplated by such clause. In addition, the Company agrees that it will not cause any shares of its capital stock that are issued in connection with a transaction of the type contemplated by such clause (ii) (or upon the conversion or exercise of other securities that are issued in connection with such transaction) or that were issued in connection with financing, acquisition or other transaction that occurred prior or subsequent to the date of this Agreement, including, the PPM Offering, to be covered by a registration statement that is filed with the Commission or declared effective by the Commission until the later earlier to occur of (Ay) the expiration of the Lock- Lock-Up Period or (Bz) the registration statement filed by the Company pursuant to its obligations under the Registration Rights Agreement has been effective under the Securities Act for a period of at least two hundred seventy ninety (27090) days, during which two hundred seventy (270) day period the Company shall not have notified the Purchaser that such registration statement or the prospectus included in such registration statement includes an untrue statement of a material fact or omits to state a material fact required to be stated therein in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Notwithstanding anything herein to the contrary, the Company may register the fifty thousand (50,000) shares of Common Stock, described on Schedule 4(h) attached hereto, on the registration statement which the Company shall file pursuant to its obligations under the Registration Rights Agreement, provided, however, that in the event that the Commission challenges the inclusion of such shares, the Company shall remove them from such registration statement.