BY THE COMPANY OR ITS SUBSIDIARIES UNDER THE SECURITY DOCUMENTS (EXCEPT TO
THE EXTENT UNDER APPLICABLE FOREIGN LAW SUCH FILINGS CANNOT BE MADE UNTIL AFTER
THE CLOSING DATE, IN WHICH CASE SUCH FILINGS SHALL BE MADE AS PROMPTLY AS
PRACTICABLE THEREAFTER) AND (II) SHALL TAKE ALL ACTIONS NECESSARY TO MAINTAIN
SUCH SECURITY INTERESTS AND TO CREATE AND PERFECT (TO THE EXTENT SUCH CONCEPT IS
APPLICABLE IN THE RELEVANT JURISDICTIONS) SECURITY INTERESTS IN ANY COLLATERAL
ACQUIRED AFTER THE CLOSING DATE, IN EACH CASE AS AND TO THE EXTENT REQUIRED BY
THE SECURITY DOCUMENTS.
(R)
THE COMPANY SHALL PROVIDE EACH STOCKHOLDER
ENTITLED TO VOTE AT EITHER (X) THE NEXT ANNUAL MEETING OF STOCKHOLDERS OF THE
COMPANY OR (Y) A SPECIAL MEETING OF STOCKHOLDER OF THE COMPANY (THE "STOCKHOLDER
MEETING"), WHICH SHALL BE PROMPTLY CALLED AND HELD NOT LATER THAN SEPTEMBER 15,
2008 (THE "STOCKHOLDER MEETING DEADLINE"), A PROXY STATEMENT SOLICITING EACH
SUCH STOCKHOLDER'S AFFIRMATIVE VOTE AT THE STOCKHOLDER MEETING FOR APPROVAL OF
RESOLUTIONS ("STOCKHOLDER RESOLUTIONS") PROVIDING FOR THE COMPANY'S ISSUANCE OF
ALL OF THE SECURITIES AS CONTEMPLATED IN THE INDENTURE AND IN ACCORDANCE WITH
AND THE RULES AND REGULATIONS OF THE NASDAQ STOCK MARKET (SUCH AFFIRMATIVE
APPROVAL BEING REFERRED TO HEREIN AS THE "STOCKHOLDER APPROVAL"), AND THE
COMPANY SHALL USE ITS REASONABLE BEST EFFORTS TO SOLICIT ITS STOCKHOLDERS'
APPROVAL OF SUCH RESOLUTIONS AND TO CAUSE THE BOARD OF DIRECTORS OF THE COMPANY
TO RECOMMEND TO THE STOCKHOLDERS THAT THEY APPROVE SUCH RESOLUTIONS. THE COMPANY
SHALL BE OBLIGATED TO SEEK TO OBTAIN THE STOCKHOLDER APPROVAL BY THE STOCKHOLDER
MEETING DEADLINE. IF, DESPITE THE COMPANY'S REASONABLE BEST EFFORTS THE
STOCKHOLDER APPROVAL IS NOT OBTAINED ON OR PRIOR TO THE STOCKHOLDER MEETING
DEADLINE, THE COMPANY SHALL COMPLY WITH THE TERMS OF THE INDENTURE RELATING
THERETO UNTIL SUCH STOCKHOLDER APPROVAL IS OBTAINED.
6.
EXPENSES.
WHETHER OR NOT THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT ARE CONSUMMATED OR THIS AGREEMENT BECOMES
EFFECTIVE OR IS TERMINATED, THE COMPANY AGREES, TO PAY ALL COSTS, EXPENSES, FEES
AND TAXES INCIDENT TO AND IN CONNECTION WITH: (I) THE PREPARATION, PRINTING,
FILING AND DISTRIBUTION OF THE PRELIMINARY OFFERING MEMORANDUM, THE PRICING
DISCLOSURE PACKAGE AND THE OFFERING MEMORANDUM (INCLUDING, WITHOUT LIMITATION,
FINANCIAL STATEMENTS AND EXHIBITS) AND ALL AMENDMENTS AND SUPPLEMENTS THERETO
(INCLUDING THE FEES, DISBURSEMENTS AND EXPENSES OF THE COMPANY'S ACCOUNTANTS AND
COUNSEL AND THE REASONABLE FEES, DISBURSEMENTS AND EXPENSES OF THE INITIAL
PURCHASERS' COUNSEL INCURRED IN CONNECTION THEREWITH); (II) THE PREPARATION,
21
PRINTING (INCLUDING, WITHOUT LIMITATION, WORD PROCESSING AND DUPLICATION COSTS)
AND DELIVERY OF THIS AGREEMENT, THE INDENTURE, THE SECURITY DOCUMENTS, ALL BLUE
SKY MEMORANDA AND ALL OTHER AGREEMENTS, MEMORANDA, CORRESPONDENCE AND OTHER
DOCUMENTS PRINTED AND DELIVERED IN CONNECTION THEREWITH AND WITH THE EXEMPT
RESALES; (III) THE AUTHORIZATION, ISSUANCE, SALE AND DELIVERY BY THE COMPANY OF
THE SECURITIES AND ANY TAXES PAYABLE IN CONNECTION THEREWITH; (IV) THE
QUALIFICATION OF THE SECURITIES FOR OFFER AND SALE UNDER THE SECURITIES OR BLUE
SKY LAWS OF THE SEVERAL STATES (INCLUDING, WITHOUT LIMITATION, THE REASONABLE
FEES AND DISBURSEMENTS OF THE INITIAL PURCHASERS' COUNSEL RELATING TO SUCH