OTHER PURCHASER UNDERSTANDS AND ACKNOWLEDGES, AND AGREES,
TO ACT IN A MANNER THAT WILL NOT VIOLATE THE POSITIONS OF THE COMMISSION AS SET
FORTH IN ITEM 65, SECTION A, OF THE MANUAL OF PUBLICLY AVAILABLE TELEPHONE
INTERPRETATIONS, DATED JULY 1997, COMPILED BY THE OFFICE OF CHIEF COUNSEL,
DIVISION OF CORPORATION FINANCE. NOTWITHSTANDING THE FOREGOING, NO PURCHASER
MAKES ANY REPRESENTATION, WARRANTY OR COVENANT HEREBY THAT IT WILL NOT ENGAGE IN
SHORT SALES IN THE SECURITIES OF THE COMPANY AFTER THE TIME THAT THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT ARE FIRST PUBLICLY ANNOUNCED AS
DESCRIBED IN SECTION 4.6.
NOTWITHSTANDING THE FOREGOING, IN THE CASE OF A
PURCHASER THAT IS A MULTI-MANAGED INVESTMENT VEHICLE WHEREBY SEPARATE PORTFOLIO
MANAGERS MANAGE SEPARATE PORTIONS OF SUCH PURCHASER'S ASSETS AND THE PORTFOLIO
MANAGERS HAVE NO DIRECT KNOWLEDGE OF THE INVESTMENT DECISIONS MADE BY THE
PORTFOLIO MANAGERS MANAGING OTHER PORTIONS OF SUCH PURCHASER'S ASSETS, THE
COVENANT SET FORTH ABOVE SHALL ONLY APPLY WITH RESPECT TO THE PORTION OF ASSETS
MANAGED BY THE PORTFOLIO MANAGER THAT MADE THE INVESTMENT DECISION TO PURCHASE
THE SECURITIES COVERED BY THIS AGREEMENT.
4.17
STOCK OPTION PLANS.
SO LONG AS ANY DEBENTURES
REMAIN OUTSTANDING, THE COMPANY SHALL NOT ISSUE SHARES OF COMMON STOCK OR
OPTIONS TO EMPLOYEES, OFFICERS, DIRECTORS OR CONSULTANTS OF THE COMPANY PURSUANT
TO ANY STOCK OR OPTION PLAN IN EXCESS OF, IN THE AGGREGATE, 14,654,785 SHARES OR
SHARES UNDERLYING OPTIONS, SUBJECT TO ADJUSTMENT FOR REVERSE AND FORWARD STOCK
SPLITS, STOCK INTERESTS, STOCK COMBINATIONS AND OTHER SIMILAR TRANSACTIONS OF
THE COMMON STOCK THAT OCCUR AFTER THE DATE OF THIS AGREEMENT.
EXCEPT AS SET
FORTH ON SCHEDULE 4.17, THE COMPANY SHALL NOT ISSUE SHARES OF COMMON STOCK OR
OPTIONS TO EMPLOYEES, OFFICERS OR DIRECTORS OF THE COMPANY PURSUANT TO ANY STOCK
OR OPTION PLAN UNTIL SUCH STOCK OR OPTION PLAN IS DULY AUTHORIZED BY A MAJORITY
OF THE NON-EMPLOYEE MEMBERS OF THE BOARD OF DIRECTORS OF THE COMPANY OR A
MAJORITY OF THE MEMBERS OF A COMMITTEE OF NON-EMPLOYEE DIRECTORS ESTABLISHED FOR
SUCH PURPOSE.
31
4.18
FORM D; BLUE SKY FILINGS.
THE COMPANY AGREES TO
TIMELY FILE A FORM D WITH RESPECT TO THE SECURITIES AS REQUIRED UNDER REGULATION
D AND TO PROVIDE A COPY THEREOF, PROMPTLY UPON REQUEST OF ANY PURCHASER. THE
COMPANY SHALL TAKE SUCH ACTION AS THE COMPANY SHALL REASONABLY DETERMINE IS
NECESSARY IN ORDER TO OBTAIN AN EXEMPTION FOR, OR TO QUALIFY THE SECURITIES FOR,
SALE TO THE PURCHASERS AT THE CLOSING UNDER APPLICABLE SECURITIES OR "BLUE SKY"
LAWS OF THE STATES OF THE UNITED STATES, AND SHALL PROVIDE EVIDENCE OF SUCH
ACTIONS PROMPTLY UPON REQUEST OF ANY PURCHASER.
4.19
CAPITAL CHANGES.
SO LONG AS ANY DEBENTURES
REMAIN OUTSTANDING, THE COMPANY SHALL NOT UNDERTAKE A REVERSE OR FORWARD STOCK
SPLIT OR RECLASSIFICATION OF THE COMMON STOCK WITHOUT THE PRIOR WRITTEN CONSENT
OF THE PURCHASERS HOLDING A MAJORITY IN PRINCIPAL AMOUNT OUTSTANDING OF THE
DEBENTURES.
4.20
CASH BURN RATE.
FROM THE DATE HEREOF UNTIL AND
INCLUDING SEPTEMBER 30, 2007, THE CONSOLIDATED ACTUAL CASH DISBURSEMENTS AND
COMMITMENTS OF THE COMPANY