WITH THE SEC.
(O)
STOCKHOLDER APPROVAL.
THE COMPANY SHALL
PROVIDE EACH STOCKHOLDER ENTITLED TO VOTE AT A SPECIAL OR ANNUAL MEETING OF
SHAREHOLDERS OF THE COMPANY (THE "STOCKHOLDER MEETING"), WHICH INITIALLY SHALL
BE PROMPTLY CALLED AND HELD NOT LATER THAN DECEMBER 31, 2006 (THE "STOCKHOLDER
MEETING DEADLINE"), A PROXY STATEMENT, SUBSTANTIALLY IN THE FORM WHICH HAS BEEN
PREVIOUSLY REVIEWED BY THE BUYERS AND SCHULTE ROTH & ZABEL LLP AT THE EXPENSE OF
THE COMPANY, SOLICITING EACH SUCH STOCKHOLDER'S AFFIRMATIVE VOTE AT THE
STOCKHOLDER MEETING FOR APPROVAL OF RESOLUTIONS (THE "RESOLUTIONS") PROVIDING
FOR THE COMPANY'S ISSUANCE OF ALL OF THE SECURITIES AS DESCRIBED IN THE
TRANSACTION DOCUMENTS IN ACCORDANCE WITH APPLICABLE LAW AND THE RULES AND
REGULATIONS OF THE PRINCIPAL MARKET (SUCH AFFIRMATIVE APPROVAL BEING REFERRED TO
HEREIN AS THE "STOCKHOLDER APPROVAL" AND THE DATE SUCH APPROVAL IS OBTAINED, THE
"STOCKHOLDER APPROVAL DATE"), AND THE COMPANY SHALL USE ITS REASONABLE BEST
EFFORTS TO SOLICIT ITS STOCKHOLDERS' APPROVAL OF THE RESOLUTIONS AND TO CAUSE
THE BOARD TO RECOMMEND TO THE STOCKHOLDERS THAT THEY APPROVE THE RESOLUTIONS.
THE COMPANY SHALL BE OBLIGATED TO SEEK TO OBTAIN THE STOCKHOLDER APPROVAL BY THE
STOCKHOLDER MEETING DEADLINE.
IF, DESPITE THE COMPANY'S REASONABLE BEST
EFFORTS, THE STOCKHOLDER APPROVAL IS NOT OBTAINED ON OR PRIOR TO THE STOCKHOLDER
MEETING DEADLINE, THE COMPANY SHALL SOLICIT STOCKHOLDER APPROVAL AT THE ANNUAL
STOCKHOLDERS MEETING EACH YEAR AND USE ITS REASONABLE BEST EFFORTS TO OBTAIN
SUCH STOCKHOLDER APPROVAL UNTIL STOCKHOLDER APPROVAL IS OBTAINED.
(P)
WITHHOLDING TAXES.
ON EACH DIVIDEND DATE
(AS DEFINED IN THE CERTIFICATE OF DESIGNATIONS), IF THE COMPANY DOES NOT HAVE
CURRENT OR ACCUMULATED "EARNINGS AND PROFITS" WITHIN THE MEANING OF SECTIONS 301
AND 312 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, THROUGH SUCH DIVIDEND
DATE, THE COMPANY SHALL NOT WITHHOLD ANY AMOUNT OF THE APPLICABLE DIVIDEND (AS
DEFINED IN THE CERTIFICATE OF DESIGNATIONS) IN RESPECT OF U.S. FEDERAL INCOME
TAX.
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ON OR PRIOR TO ANY SUCH DIVIDEND DATE, THE COMPANY SHALL DELIVER A TRANSMITTAL
LETTER TO THE BUYER OR THE BUYER'S PRIME BROKER INDICATING WHETHER THE COMPANY
BELIEVES IT MUST WITHHOLD ANY AMOUNT OF SUCH DIVIDEND, WHETHER THE COMPANY HAS
ANY "EARNINGS OR PROFITS" AND THE CALCULATIONS, IN REASONABLE DETAIL, SUPPORTING
SUCH CALCULATIONS.
(Q)
LOCK-UP AGREEMENTS.
THE COMPANY SHALL NOT
AMEND, WAIVE OR MODIFY ANY OF THE LOCK-UP AGREEMENTS OR THE EXISTING LOCK-UP
AGREEMENTS (EACH AS DEFINED BELOW) WITHOUT THE WRITTEN CONSENT OF THE REQUIRED
HOLDERS (AS DEFINED IN THE CERTIFICATE OF DESIGNATIONS).
(R)
TRADING IN COMMON STOCK.
FOR SO LONG AS
SUCH BUYER OWNS ANY SECURITIES, SUCH BUYER SHALL NOT MAINTAIN A NET SHORT
POSITION.
FOR PURPOSES OF THIS SECTION, A "NET SHORT POSITION" BY A PERSON
MEANS A POSITION WHEREBY SUCH PERSON HAS EXECUTED ONE OR MORE SALES OF COMMON
STOCK THAT IS MARKED AS A SHORT SALE AND THAT IS EXECUTED AT A TIME WHEN SUCH
BUYER HAS NO EQUIVALENT OFFSETTING LONG POSITION IN THE COMMON STOCK OR CONTRACT
FOR THE FOREGOING.
FOR PURPOSES OF DETERMINING WHETHER A BUYER HAS AN
EQUIVALENT