RESULT OF THE LOSSES REFERRED TO ABOVE SHALL BE
DEEMED TO INCLUDE, SUBJECT TO THE LIMITATIONS SET FORTH IN SECTIONS 7.1 AND 7.2,
ANY LEGAL OR OTHER FEES, CHARGES OR EXPENSES REASONABLY INCURRED BY SUCH PARTY
IN CONNECTION WITH ANY INVESTIGATION OR PROCEEDING.
ARTICLE VIII
AFFIRMATIVE COVENANTS
The Company hereby covenants and agrees with the Purchasers as follows:
8.1
PRESERVATION OF EXISTENCE.
BETWEEN THE DATE HEREOF AND EITHER (I)
IF STOCKHOLDER APPROVAL OF THE SECOND TRANCHE CLOSING IS NOT OBTAINED AT THE
STOCKHOLDERS MEETING, THE DATE OF THE STOCKHOLDERS MEETING (UNLESS ROCKPORT AND
NGP REQUEST THAT THE COMPANY SEEK STOCKHOLDER APPROVAL AGAIN IN ACCORDANCE WITH
SECTION 8.2(B), IN WHICH CASE THE RELEVANT DATE SHALL BE THE DATE OF SUCH
SUBSEQUENT STOCKHOLDERS MEETING) AND (II) IF STOCKHOLDER APPROVAL OF THE SECOND
TRANCHE CLOSING IS OBTAINED AT THE STOCKHOLDERS MEETING, THE SECOND TRANCHE
CLOSING DATE, THE COMPANY AND EACH SUBSIDIARY SHALL:
(A)
PRESERVE AND MAINTAIN IN FULL FORCE AND EFFECT ITS EXISTENCE AND
GOOD STANDING UNDER THE LAWS OF ITS JURISDICTION OF FORMATION OR ORGANIZATION;
(B)
PRESERVE AND MAINTAIN IN FULL FORCE AND EFFECT ALL MATERIAL
RIGHTS, PRIVILEGES, QUALIFICATIONS, APPLICATIONS, LICENSES AND FRANCHISES
NECESSARY IN THE NORMAL CONDUCT OF ITS BUSINESS;
42
(C)
USE ITS REASONABLE BEST EFFORTS TO PRESERVE ITS BUSINESS
ORGANIZATION;
(D)
CONDUCT ITS BUSINESS IN THE ORDINARY COURSE IN ACCORDANCE WITH
SOUND BUSINESS PRACTICES, KEEP ITS PROPERTIES IN GOOD WORKING ORDER AND
CONDITION (NORMAL WEAR AND TEAR EXCEPTED), AND FROM TIME TO TIME MAKE ALL NEEDED
REPAIRS TO, RENEWALS OF OR REPLACEMENTS OF ITS PROPERTIES SO THAT THE EFFICIENCY
OF ITS BUSINESS OPERATION SHALL BE REASONABLY MAINTAINED AND PRESERVED;
(E)
TAKE ALL REASONABLE ACTIONS TO PROTECT AND MAINTAIN THE COMPANY
INTELLECTUAL PROPERTY, INCLUDING, WITHOUT LIMITATION, PROSECUTING ALL PENDING
APPLICATIONS FOR PATENTS OR REGISTRATION OF TRADEMARKS AND COPYRIGHTS AND
MAINTAINING, TO THE EXTENT PERMITTED BY LAW, EACH PATENT OR REGISTRATION OWNED
BY THE COMPANY OR ANY SUBSIDIARY;
(F)
COMPLY IN ALL MATERIAL RESPECTS WITH ALL REQUIREMENTS OF LAW AND
WITH THE DIRECTIONS OF ANY GOVERNMENTAL AUTHORITY HAVING JURISDICTION OVER THE
COMPANY OR ANY SUBSIDIARY OR ITS BUSINESS OR PROPERTY, AND SHALL NOT TAKE ANY
ACTION DESIGNED TO OR THAT MIGHT REASONABLY BE EXPECTED TO CAUSE OR RESULT IN
UNLAWFUL MANIPULATION OF THE PRICE OF THE COMMON STOCK TO FACILITATE THE SALE OR
RESALE OF THE PURCHASED SHARES, THE WARRANTS, THE ADDITIONAL WARRANTS (IF
APPLICABLE) OR THE UNDERLYING SHARES;
(G)
FILE OR CAUSE TO BE FILED IN A TIMELY MANNER ALL REPORTS,
APPLICATIONS, ESTIMATES AND LICENSES THAT SHALL BE REQUIRED BY A GOVERNMENTAL
AUTHORITY;
(H)
CONDUCT ITS BUSINESS IN A MANNER SUCH THAT THE REPRESENTATIONS AND
WARRANTIES OF THE COMPANY CONTAINED IN ARTICLE III SHALL CONTINUE TO BE TRUE AND
CORRECT IN ALL MATERIAL RESPECTS ON AND AS OF THE SECOND TRANCHE CLOSING DATE AS
IF MADE ON AND AS OF THE SECOND TRANCHE CLOSING DATE, AND SHALL NOT UNDERTAKE,
WITHOUT THE WRITTEN CONSENT OF THE PURCHASERS, ANY OF THE ACTIONS SPECIFIED IN
THE LAST TWO SENTENCES OF SECTION 3.12;