THAT PERSON OR ENTITY.
"CONTROL" OR "CONTROLS"
FOR PURPOSES HEREOF MEANS THAT A PERSON OR ENTITY HAS THE POWER, DIRECT OR
INDIRECT, TO CONDUCT OR GOVERN THE POLICIES OF ANOTHER PERSON OR ENTITY.
(J)
TRANSFER AGENT.
THE COMPANY COVENANTS AND AGREES THAT, IN THE
EVENT THAT THE COMPANY'S AGENCY RELATIONSHIP WITH THE TRANSFER AGENT SHOULD BE
TERMINATED FOR ANY REASON PRIOR TO A DATE WHICH IS TWO (2) YEARS AFTER THE
CLOSING DATE, THE COMPANY SHALL IMMEDIATELY APPOINT A NEW TRANSFER AGENT AND
SHALL REQUIRE THAT THE NEW TRANSFER AGENT EXECUTE AND AGREE TO BE BOUND BY THE
TERMS OF THE IRREVOCABLE TRANSFER AGENT INSTRUCTIONS (AS DEFINED HEREIN).
(K)
NEITHER THE BUYER(S) NOR ANY OF ITS AFFILIATES HAVE AN OPEN SHORT
POSITION IN THE COMMON STOCK OF THE COMPANY, AND THE BUYER(S) AGREES THAT IT
SHALL NOT, AND THAT IT WILL CAUSE ITS AFFILIATES NOT TO, ENGAGE IN ANY SHORT
SALES OF OR HEDGING TRANSACTIONS WITH RESPECT TO THE COMMON STOCK AS LONG AS ANY
CONVERTIBLE DEBENTURES SHALL REMAIN OUTSTANDING.
(L)
ADDITIONAL REGISTRATION STATEMENTS.
OTHER THAN EXISTING
REGISTRATION REQUIREMENTS PURSUANT TO THE REGISTRATION RIGHTS AGREEMENT DATED
MAY 30, 2006 BY AND BETWEEN THE COMPANY AND THE BUYER(S) OR SUCH REGISTRATION
REQUIREMENTS IN CONNECTION WITH THE CLAYTON DUNNING & CO. WHICH THE COMPANY
ANTICIPATES WILL BE ISSUED IN APRIL 2007 OR SOON THEREAFTER AND ARE REFERENCED
IN THE WAIVER AGREEMENT BETWEEN THE PARTIES DATED FEBRUARY 19, 2007 (THE
"CLAYTON DUNNING TRANSACTION"), UNTIL THE EFFECTIVE DATE OF THE INITIAL
REGISTRATION STATEMENT, THE COMPANY WILL NOT FILE A REGISTRATION STATEMENT UNDER
THE SECURITIES ACT RELATING TO SECURITIES THAT ARE NOT THE SECURITIES EXCEPT TO
THE EXTENT THAT THE COMPANY HAS EXISTING CONTRACTUAL REQUIREMENTS TO DO SO AS
DISCLOSED ON THE DISCLOSURE SCHEDULE ATTACHED HERETO, AND EXCEPT FOR A FORM S-8
TO REGISTER THE COMPANY'S EXISTING EMPLOYEE BENEFIT PLANS.
(M)
REVIEW OF PUBLIC DISCLOSURES.
ALL SEC FILINGS (INCLUDING, WITHOUT
LIMITATION, ALL FILINGS REQUIRED UNDER THE EXCHANGE ACT, WHICH INCLUDE FORMS
10-Q,
10-K AND 8-K, ETC) AND OTHER PUBLIC DISCLOSURES MADE BY THE COMPANY,
INCLUDING, WITHOUT LIMITATION, ALL PRESS RELEASES, INVESTOR RELATIONS MATERIALS,
AND SCRIPTS OF ANALYSTS MEETINGS AND CALLS, SHALL BE REVIEWED AND APPROVED FOR
RELEASE BY THE COMPANY'S ATTORNEYS.
(N)
DISCLOSURE OF TRANSACTION.
WITHIN FOUR BUSINESS DAY FOLLOWING THE
DATE OF THIS AGREEMENT, THE COMPANY SHALL FILE A CURRENT REPORT ON FORM 8-K
DESCRIBING THE TERMS OF THE TRANSACTIONS CONTEMPLATED BY THE TRANSACTION
DOCUMENTS IN THE FORM REQUIRED BY THE
16
EXCHANGE ACT AND ATTACHING THE MATERIAL TRANSACTION DOCUMENTS (INCLUDING,
WITHOUT LIMITATION, THIS AGREEMENT, THE FORM OF THE CONVERTIBLE DEBENTURE, THE
FORM OF WARRANT AND THE FORM OF THE REGISTRATION RIGHTS AGREEMENT) AS EXHIBITS
TO SUCH FILING.
(O)
SHAREHOLDER APPROVAL. THE COMPANY SHALL OBTAIN SHAREHOLDER
APPROVAL NO LATER THAN NOVEMBER 30, 2007 (WITHOUT THE VOTE OF ANY SHARES
ACQUIRED IN THIS TRANSACTION AND RELATED TRANSACTIONS) FOR THE ISSUANCE OF IN
EXCESS OF 19.99% OF THE OUTSTANDING SHARES OF THE COMPANY'S COMMON STOCK UPON
(I) CONVERSION OF THE CONVERTIBLE DEBENTURES, ISSUANCE OF SHARES