OWNED FREE AND CLEAR OF ALL SECURITY
INTERESTS, LIENS, CLAIMS, PLEDGES, OPTIONS, RIGHTS OF FIRST REFUSAL, AGREEMENTS,
LIMITATIONS ON THE STOCKHOLDER'S VOTING RIGHTS, CHARGES AND OTHER ENCUMBRANCES
OF ANY NATURE WHATSOEVER, EXCEPT FOR TRANSFER RESTRICTION UNDER FEDERAL OR
APPLICABLE STATE SECURITIES OR BLUE SKY LAW AND THAT CERTAIN LOCK-UP LETTER
AGREEMENT ("LOCK-UP AGREEMENT") WITH THE COMPANY DATED MARCH 7, 2008. NO
STOCKHOLDER HAS APPOINTED OR GRANTED ANY PROXY, WHICH APPOINTMENT OR GRANT IS
STILL EFFECTIVE, WITH RESPECT TO THE COMMON STOCK OR OTHER SECURITIES OWNED BY
THE STOCKHOLDER.
ARTICLE III
COVENANTS
SECTION 3.01.
NO DISPOSITION OR ENCUMBRANCE OF STOCK. THE STOCKHOLDER
HEREBY COVENANTS AND AGREES THAT HE WILL COMPLY WITH THE TERMS AND CONDITIONS OF
HIS LOCK-UP AGREEMENT.
SECTION 3.02.
COMPANY COOPERATION. THE COMPANY AGREES THAT AT ANY TIME IN
WHICH ANY STOCKHOLDER APPROVAL IS REQUIRED PURSUANT TO SECTION 4 OF THE CONSENT
AND AGREEMENT, IT WILL USE ITS REASONABLE BEST EFFORTS TO CAUSE HOLDERS OF
COMMON STOCK OR OTHER SECURITIES REPRESENTING THE PERCENTAGE OF OUTSTANDING
CAPITAL STOCK REQUIRED TO VOTE IN FAVOR OF THE TRANSACTIONS CONTEMPLATED BY THE
SECURITIES PURCHASE AGREEMENT IN ORDER FOR THE COMPANY TO COMPLY WITH ITS
OBLIGATIONS UNDER SECTION 4 OF THE CONSENT AND AGREEMENT TO SO VOTE IN FAVOR OF
SUCH TRANSACTIONS.
ARTICLE IV
MISCELLANEOUS
SECTION 4.01.
FURTHER ASSURANCES. EACH STOCKHOLDER WILL EXECUTE AND DELIVER
SUCH FURTHER DOCUMENTS AND INSTRUMENTS AND TAKE ALL FURTHER ACTION AS MAY BE
REASONABLY NECESSARY IN ORDER TO GIVE EFFECT TO THE VOTING AGREEMENT AND OTHER
COVENANTS OF THE STOCKHOLDER CONTEMPLATED HEREBY.
SECTION 4.02.
SPECIFIC PERFORMANCE. THE PARTIES HERETO AGREE THAT
IRREPARABLE DAMAGE WOULD OCCUR IN THE EVENT ANY PROVISION OF THIS AGREEMENT WAS
NOT PERFORMED IN ACCORDANCE WITH THE TERMS HEREOF AND THAT ANY INVESTOR (WITHOUT
BEING JOINED BY ANY OTHER INVESTOR) SHALL BE ENTITLED TO SPECIFIC PERFORMANCE OF
THE TERMS HEREOF, IN ADDITION TO ANY OTHER REMEDY AT LAW OR IN EQUITY. ANY
INVESTOR SHALL BE ENTITLED TO ITS REASONABLE ATTORNEYS' FEES IN ANY ACTION
BROUGHT TO ENFORCE THIS AGREEMENT IN WHICH IT IS THE PREVAILING PARTY.
SECTION 4.03.
ENTIRE AGREEMENT. THIS AGREEMENT CONSTITUTES THE ENTIRE
AGREEMENT AMONG THE COMPANY AND THE STOCKHOLDER (OTHER THAN THE SECURITIES
PURCHASE AGREEMENT, THE CONSENT AND AGREEMENT AND THE OTHER TRANSACTION
DOCUMENTS) WITH RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDES ALL PRIOR
AGREEMENTS AND UNDERSTANDINGS, BOTH WRITTEN AND ORAL, AMONG THE COMPANY AND THE
STOCKHOLDER WITH RESPECT TO THE SUBJECT MATTER HEREOF.
3
SECTION 4.04.
AMENDMENT. THE PROVISIONS OF THIS AGREEMENT MAY NOT BE
AMENDED OR WAIVED, NOR MAY THIS AGREEMENT BE TERMINATED BY THE COMPANY OTHER
THAN PURSUANT TO THE PROVISIONS OF SECTION 4.07.
SECTION 4.05.
SEVERABILITY. IF ANY TERM OR OTHER PROVISION OF THIS
AGREEMENT IS INVALID, ILLEGAL OR INCAPABLE OF BEING ENFORCED BY ANY RULE OF LAW,
OR PUBLIC POLICY, ALL OTHER CONDITIONS AND PROVISIONS OF THIS AGREEMENT SHALL
NEVERTHELESS REMAIN IN FULL FORCE AND EFFECT SO LONG AS THE ECONOMIC OR LEGAL
SUBSTANCE OF THIS AGREEMENT IS NOT AFFECTED IN ANY MANNER MATERIALLY ADVERSE TO