(I)
USE ITS BEST EFFORTS TO CAUSE THE CLOSING CONDITIONS CONTAINED IN
ARTICLE V TO BE SATISFIED ON OR BEFORE THE APPLICABLE CLOSING DATE;
(J)
NOT ISSUE, DELIVER, SELL OR AUTHORIZE, OR PROPOSE THE ISSUANCE,
DELIVERY, SALE OR PURCHASE OF, ANY ADDITIONAL SHARES OF CAPITAL STOCK, STOCK
EQUIVALENTS OR ANY OTHER SECURITY OF THE COMPANY OR SUCH SUBSIDIARY, OTHER THAN
(I) THE ISSUANCE OF COMMON STOCK PURSUANT TO THE EXERCISE OF ANY OPTIONS
OUTSTANDING AS OF THE DATE HEREOF, THE EXERCISE OF OUTSTANDING WARRANTS OR THE
CONVERSION OF THE EXISTING NOTES, (II) THE INCREASE IN THE AGGREGATE NUMBER OF
OPTIONS WHICH MAY BE ISSUED UNDER THE STOCK OPTION PLANS IN AN AMOUNT NOT TO
EXCEED TEN MILLION (10,000,000) SHARES, (III) THE ISSUANCE OF OPTIONS TO
PURCHASE SHARES OF COMMON STOCK ISSUED UNDER THE STOCK OPTION PLANS IN AN AMOUNT
NOT TO EXCEED TWENTY-FIVE THOUSAND (25,000) SHARES IN AN INDIVIDUAL GRANT OR ONE
HUNDRED THOUSAND (100,000) SHARES IN THE AGGREGATE (EXCEPT WITH THE PRIOR
WRITTEN CONSENT OF ROCKPORT AND NGP) AND (IV) PURCHASED SHARES AND WARRANTS TO
BE SOLD AT THE FIRST TRANCHE CLOSING;
43
(K)
WITHOUT THE PRIOR WRITTEN CONSENT OF ROCKPORT AND NGP WHICH SHALL
NOT BE UNREASONABLY WITHHELD, NOT INCUR ANY INDEBTEDNESS, GUARANTEE ANY
INDEBTEDNESS OF ANY PERSON, ISSUE OR SELL DEBT SECURITIES, OR GUARANTEE ANY DEBT
SECURITIES OF ANY PERSON;
(L)
WITHOUT THE PRIOR WRITTEN CONSENT OF ROCKPORT AND NGP, NOT
INCREASE THE SALARY OR OTHER COMPENSATION PAYABLE OR TO BECOME PAYABLE TO ANY
OFFICER, DIRECTOR, EMPLOYEE OR ADVISOR, OR MAKE ANY DECLARATION, PAYMENT OR
COMMITMENT OR OBLIGATION OF ANY KIND FOR THE PAYMENT (WHETHER IN CASH OR EQUITY)
OF A SEVERANCE PAYMENT, TERMINATION PAYMENT, BONUS OR OTHER ADDITIONAL SALARY OR
COMPENSATION TO ANY SUCH PERSON, EXCEPT FOR PAYMENTS MADE PURSUANT TO WRITTEN
AGREEMENTS OUTSTANDING ON THE DATE HEREOF AND DISCLOSED IN THE COMPANY
DISCLOSURE SCHEDULE; AND
(M)
WITHOUT THE PRIOR WRITTEN CONSENT OF ROCKPORT AND NGP, NOT AMEND
ANY OPTION AGREEMENTS THAT ARE OUTSTANDING ON THE DATE OF THIS AGREEMENT TO
PROVIDE FOR THE ACCELERATION OF VESTING OR TO EXTEND THE EXERCISE PERIOD DURING
WHICH AN OPTION CAN BE EXERCISED FOLLOWING THE TERMINATION OF AN OPTIONEE'S
SERVICE PROVIDER STATUS.
8.2
Stockholders Meeting.
(A)
THE COMPANY SHALL CAUSE A MEETING OF ITS STOCKHOLDERS (THE
"STOCKHOLDERS MEETING") TO BE DULY CALLED AND HELD AS SOON AS REASONABLY
PRACTICABLE AFTER THE DATE HEREOF, BUT IN ANY EVENT NOT LATER THAN DECEMBER 31,
2007 (UNLESS THE SEC HAS SUBSTANTIVE COMMENTS ON THE PROXY STATEMENT, IN WHICH
CASE THE RELEVANT DATE SHALL BE JANUARY 31, 2008), FOR THE PURPOSE OF VOTING FOR
THE APPROVAL OF (I) THE ISSUANCE AND SALE OF THE PURCHASED SHARES AND THE
WARRANTS IN THE SECOND TRANCHE CLOSING, THE ISSUANCE AND SALE OF THE ADDITIONAL
WARRANTS, THE ISSUANCE OF THE UNDERLYING SHARES ISSUABLE UPON EXERCISE OR
CONVERSION THEREOF AND THE REPRICING OF THE EXERCISE PRICE OF THE WARRANTS TO
$1.25 PER WARRANT SHARE IF SUCH EXERCISE PRICE IS INITIALLY SET ABOVE $1.25 PER
WARRANT SHARE (WHICH