PURCHASE, OR AGREE
TO PURCHASE, ALL OR SUBSTANTIALLY ALL OF THE ASSETS AND PROPERTIES OF, OR
OTHERWISE ACQUIRE, OR AGREE TO
14
ACQUIRE, ALL OR ANY PORTION OF, ANY PERSON, IN EACH CASE, FOR CONSIDERATION IN
AN AMOUNT, WHICH WHEN COMBINED WITH ALL OTHER SUCH TRANSACTIONS IN ANY FISCAL
YEAR, EXCEEDS $5,000,000;
(I) MERGE, COMBINE OR CONSOLIDATE WITH, OR AGREE TO MERGE, COMBINE OR
CONSOLIDATE WITH ANY PERSON IN WHICH IT IS NOT THE SURVIVING PERSON OR
(II) SELL, ASSIGN, CONVEY, TRANSFER, LEASE OR OTHERWISE DISPOSE OF ALL OR
SUBSTANTIALLY ALL OF ITS ASSETS;
SELL OR DISPOSE OF BUSINESSES OR ASSETS IN EXCESS OF $1,000,000 IN ANY FISCAL
YEAR;
ALTER OR CHANGE MATERIALLY AND ADVERSELY THE RIGHTS OF HOLDERS OF COMMON STOCK;
INCUR INDEBTEDNESS OR GUARANTEES IN EXCESS OF $2,500,000 INDIVIDUALLY OR
$5,000,000 IN THE AGGREGATE;
AMEND OR PROPOSE TO AMEND ITS CERTIFICATE OF INCORPORATION OR BY-LAWS;
LIQUIDATE OR DISSOLVE, EFFECT ANY RECAPITALIZATION OR REORGANIZATION, OR ANY
STOCK SPLIT, REVERSE STOCK SPLIT OR, IN EACH CASE, OBLIGATE ITSELF TO DO SO;
ENGAGE IN ANY OTHER BUSINESS OTHER THAN THAT BUSINESS CURRENTLY ENGAGED IN BY
IT; OR
DECLARE ANY DIVIDENDS OR DISTRIBUTIONS.
AT ALL TIMES, THE COMPANY SHALL CAUSE TO BE MAINTAINED DIRECTORS' AND OFFICERS'
LIABILITY INSURANCE COVERING THE INVESTOR DIRECTOR: (I) TO THE SAME EXTENT AS
THAT MAINTAINED FOR ALL OTHER DIRECTORS OF THE COMPANY AND (II) ON MATERIAL
TERMS NO LESS FAVORABLE THAN THE COVERAGE PROVIDED FOR THE COMPANY'S DIRECTORS
AS CURRENTLY MAINTAINED, AND IN ANY EVENT, IN AN AMOUNT OF AT LEAST FIVE MILLION
DOLLARS ($5,000,000).
THE COMPANY SHALL INDEMNIFY AND HOLD HARMLESS, TO THE FULLEST EXTENT PERMITTED
UNDER APPLICABLE LAW, THE INVESTOR DIRECTOR TO THE SAME EXTENT AS ALL OTHER
DIRECTORS OF THE COMPANY, AND ON TERMS NO LESS FAVORABLE THAN UNDER THE
COMPANY'S CERTIFICATE OF INCORPORATION, BY-LAWS AND FORM OF DIRECTOR
INDEMNIFICATION AGREEMENT IN EFFECT ON THE DATE HEREOF.
THE COMPANY AND THE IDENTIFIED STOCKHOLDERS SHALL TAKE ALL OTHER ACTIONS
NECESSARY TO ENSURE THAT THE CERTIFICATE OF INCORPORATION AND BY-LAWS OF THE
COMPANY DO NOT AT ANY TIME CONFLICT WITH THE PROVISIONS OF THIS AGREEMENT.
RESTRICTIONS ON CERTAIN ACTIONS.
WITHOUT THE PRIOR CONSENT OF THE MAJORITY OF
THE MEMBERS OF THE BOARD OF DIRECTORS, ZIONS AND ITS AFFILIATES SHALL NOT:
PRIOR TO THE FIRST (1ST) ANNIVERSARY OF THE DATE OF THIS AGREEMENT, ACQUIRE OR
OFFER TO ACQUIRE OR AGREE TO ACQUIRE FROM ANY PERSON, DIRECTLY OR INDIRECTLY, BY
PURCHASE OR OTHERWISE (EXCEPT IN CONNECTION WITH (I) A STOCK SPLIT, REVERSE
SPLIT OR OTHER RECLASSIFICATION OR REORGANIZATION AFFECTING THE COMPANY'S COMMON
STOCK GENERALLY OR (II) A STOCK DIVIDEND OR OTHER PRO RATA DISTRIBUTION BY THE
COMPANY TO HOLDERS OF ITS OUTSTANDING COMMON STOCK) ANY COMMON STOCK OR SHARES
OF CAPITAL STOCK EXCHANGEABLE OR CONVERTIBLE INTO COMMON STOCK OR ANY ASSETS OF
THE COMPANY; OR
PRIOR TO THE FIRST (1ST) ANNIVERSARY OF THE DATE OF THIS AGREEMENT, INITIATE,
PROPOSE OR OTHERWISE CAUSE A SPECIAL MEETING OF THE STOCKHOLDERS OF THE COMPANY
TO ELECT DIRECTORS OF THE COMPANY;