OF THE NYSE LISTED
COMPANY MANUAL, AND (B) AMEND THE COMPANY'S ARTICLES OF INCORPORATION TO, AMONG
OTHER THINGS, INCREASE THE NUMBER OF AUTHORIZED SHARES OF COMMON STOCK TO AT
LEAST SUCH NUMBER AS SHALL BE SUFFICIENT TO PERMIT THE FULL CONVERSION OF THE
CONVERTIBLE PREFERRED STOCK INTO, AND THE FULL EXERCISE OF THE WARRANTS FOR,
COMMON STOCK.
IN CONNECTION WITH SUCH MEETING, THE COMPANY SHALL PROMPTLY
PREPARE AND FILE WITH THE SEC A PRELIMINARY PROXY STATEMENT, SHALL USE ITS
REASONABLE BEST EFFORTS TO RESPOND TO ANY COMMENTS OF THE SEC OR ITS STAFF AND
TO CAUSE A DEFINITIVE PROXY STATEMENT RELATED TO SUCH SHAREHOLDERS' MEETING TO
BE MAILED TO THE COMPANY'S SHAREHOLDERS, AND SHALL USE ITS REASONABLE BEST
EFFORTS TO SOLICIT PROXIES FOR SUCH SHAREHOLDER APPROVAL. IF AT ANY TIME PRIOR
TO SUCH SHAREHOLDERS' MEETING THERE SHALL OCCUR ANY EVENT THAT IS REQUIRED TO BE
SET FORTH IN AN AMENDMENT OR SUPPLEMENT TO THE PROXY STATEMENT, THE COMPANY
SHALL AS PROMPTLY AS PRACTICABLE PREPARE AND MAIL TO ITS SHAREHOLDERS SUCH AN
AMENDMENT OR SUPPLEMENT. IN THE EVENT THAT THE APPROVALS NECESSARY TO PERMIT THE
CONVERTIBLE PREFERRED STOCK AND WARRANTS TO BE CONVERTED OR EXERCISED INTO
COMMON STOCK ARE NOT OBTAINED AT SUCH SPECIAL SHAREHOLDERS MEETING, THE COMPANY
SHALL INCLUDE A PROPOSAL TO APPROVE SUCH ISSUANCE AT A MEETING OF ITS
SHAREHOLDERS NO LESS THAN ONCE IN EACH SUBSEQUENT ANNUAL PERIOD BEGINNING IN
2009 UNTIL SUCH APPROVAL IS OBTAINED.
(C)
EACH PURCHASER, ON THE ONE HAND, AND THE COMPANY, ON THE OTHER HAND,
AGREES, UPON REQUEST, TO FURNISH THE OTHER PARTY WITH ALL INFORMATION CONCERNING
ITSELF, ITS AFFILIATES, DIRECTORS, OFFICERS, PARTNERS AND SHAREHOLDERS AND SUCH
OTHER MATTERS AS MAY BE REASONABLY NECESSARY OR ADVISABLE IN CONNECTION WITH THE
PROXY STATEMENT IN CONNECTION WITH ANY SUCH SHAREHOLDERS MEETING AND ANY OTHER
STATEMENT, FILING, NOTICE OR APPLICATION MADE BY OR ON BEHALF OF SUCH OTHER
PARTY OR ANY OF ITS SUBSIDIARIES TO ANY GOVERNMENTAL ENTITY IN CONNECTION WITH
THE CLOSING AND THE OTHER TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
11
(D)
UNLESS THIS AGREEMENT HAS BEEN TERMINATED PURSUANT TO SECTION 4.1, EACH
PURCHASER HEREBY AGREES THAT AT ANY MEETING OF THE SHAREHOLDERS OF THE COMPANY
HELD TO VOTE ON THE SHAREHOLDER PROPOSALS, HOWEVER CALLED, SUCH PURCHASER SHALL
VOTE, OR CAUSE TO BE VOTED, ALL OF THE SHARES OF COMMON STOCK BENEFICIALLY OWNED
BY SUCH PURCHASER AND ITS AFFILIATES IN FAVOR OF THE SHAREHOLDER PROPOSALS.
FOR
PURPOSES OF THIS AGREEMENT, A PERSON SHALL BE DEEMED TO "BENEFICIALLY OWN" ANY
SECURITIES OF WHICH SUCH PERSON OR ANY SUCH PERSON'S AFFILIATES IS CONSIDERED TO
BE A "BENEFICIAL OWNER" UNDER RULE 13D-3 UNDER THE EXCHANGE ACT.
3.2
Exchange Listing. The Company shall promptly use its reasonable best
efforts to cause the shares of Common Stock to be issued pursuant to this
Agreement to be approved for listing on the New York Stock Exchange, subject to
official notice of issuance, as promptly as practicable, and in any event before
the Closing.
3.3
Legend. (a)
The Purchasers agree that