9.99% OF THE
THEN OUTSTANDING SHARES OF COMMON STOCK). AS USED HEREIN, THE TERM "AFFILIATE"
MEANS ANY PERSON OR ENTITY THAT, DIRECTLY OR INDIRECTLY THROUGH ONE OR MORE
INTERMEDIARIES, CONTROLS OR IS CONTROLLED BY OR IS UNDER COMMON CONTROL WITH A
PERSON OR ENTITY, AS SUCH TERMS ARE USED IN AND CONSTRUED UNDER RULE 144 UNDER
THE SECURITIES ACT.
FOR PURPOSES OF THE SECOND PRECEDING SENTENCE, BENEFICIAL
OWNERSHIP SHALL BE DETERMINED IN ACCORDANCE WITH SECTION 13(D) OF THE SECURITIES
EXCHANGE ACT OF 1934, AS AMENDED, AND REGULATIONS 13D-G THEREUNDER, EXCEPT AS
OTHERWISE PROVIDED IN CLAUSE (1) OF SUCH SENTENCE.
FOR ANY REASON AT ANY TIME,
UPON WRITTEN OR ORAL REQUEST OF THE HOLDER, THE COMPANY SHALL WITHIN ONE (1)
BUSINESS DAY CONFIRM ORALLY AND IN WRITING TO THE HOLDER THE NUMBER OF SHARES OF
COMMON STOCK OUTSTANDING AS OF ANY GIVEN DATE.
THE LIMITATIONS SET FORTH HEREIN
(X) MAY BE WAIVED BY THE HOLDER UPON PROVISION OF NO LESS THAN SIXTY-ONE (61)
DAYS PRIOR NOTICE TO THE COMPANY AND (Y) SHALL AUTOMATICALLY BECOME NULL AND
VOID FOLLOWING NOTICE TO THE COMPANY UPON THE OCCURRENCE AND DURING THE
CONTINUANCE OF AN EVENT OF DEFAULT (AS DEFINED IN ANY OF (X) THAT CERTAIN
SECURITY AND PURCHASE AGREEMENT DATED AS OF FEBRUARY 17, 2006 AMONG THE HOLDER,
THE COMPANY AND VARIOUS SUBSIDIARIES OF THE COMPANY, AS AMENDED, RESTATED,
MODIFIED AND/OR SUPPLEMENTED FROM TIME TO TIME, (Y) THAT CERTAIN 10% SENIOR
SUBORDINATED CONVERTIBLE NOTE, DATED FEBRUARY 17, 2004 ISSUED BY THE COMPANY TO
AMARANTH TRADING, L.L.C. IN THE ORIGINAL PRINCIPAL AMOUNT OF $1,229,919 AND
ASSIGNED TO THE HOLDER PURSUANT TO THAT CERTAIN NOTE SALE AGREEMENT DATED AS OF
DECEMBER 20, 2006 BY AND BETWEEN AMARANTH TRADING L.L.C. AND THE
7
HOLDER, AS AMENDED, RESTATED, MODIFIED AND/OR SUPPLEMENTED FROM TIME TO TIME
AND/OR (Z) THAT CERTAIN SECURED TERM NOTE, DATED MARCH 29, 2007, ISSUED BY THE
COMPANY TO THE HOLDER, AS AMENDED, RESTATED, MODIFIED AND/OR SUPPLEMENTED FROM
TIME TO TIME).
27.
WARRANT AGENT.
THE COMPANY MAY, BY WRITTEN NOTICE TO THE EACH
HOLDER OF THE WARRANT, APPOINT AN AGENT FOR THE PURPOSE OF ISSUING COMMON STOCK
(OR OTHER SECURITIES) ON THE EXERCISE OF THIS WARRANT PURSUANT TO SECTION 1,
EXCHANGING THIS WARRANT PURSUANT TO SECTION 7, AND REPLACING THIS WARRANT
PURSUANT TO SECTION 8, OR ANY OF THE FOREGOING, AND THEREAFTER ANY SUCH
ISSUANCE, EXCHANGE OR REPLACEMENT, AS THE CASE MAY BE, SHALL BE MADE AT SUCH
OFFICE BY SUCH AGENT.
28.
TRANSFER ON THE COMPANY'S BOOKS.
UNTIL THIS WARRANT IS
TRANSFERRED ON THE BOOKS OF THE COMPANY, THE COMPANY MAY TREAT THE REGISTERED
HOLDER HEREOF AS THE ABSOLUTE OWNER HEREOF FOR ALL PURPOSES, NOTWITHSTANDING ANY
NOTICE TO THE CONTRARY.
29.
RIGHTS OF SHAREHOLDERS.
NO HOLDER SHALL BE ENTITLED TO VOTE OR
RECEIVE DIVIDENDS OR BE DEEMED THE HOLDER OF THE SHARES OF COMMON STOCK OR ANY
OTHER SECURITIES OF THE COMPANY WHICH MAY AT ANY TIME BE ISSUABLE UPON EXERCISE
OF THIS WARRANT FOR ANY PURPOSE (THE "WARRANT SHARES"), NOR SHALL ANYTHING
CONTAINED