A QUALIFIED PUBLIC OFFERING, THE COMPANY SHALL
NOT, AND SHALL NOT PERMIT ANY SUBSIDIARY TO, TAKE ANY OF THE FOLLOWING ACTIONS
WITHOUT OBTAINING THE PRIOR CONSENT OF THE BSMB MAJORITY HOLDERS:
(I)
DECLARE OR PAY ANY DIVIDENDS OR OTHER DISTRIBUTIONS ON THE COMMON
STOCK;
(II)
ENTER INTO OR REFINANCE, OR PERMIT ANY OF ITS SUBSIDIARIES TO
ENTER INTO OR REFINANCE, ANY INDEBTEDNESS FOR BORROWED MONEY (OTHER THAN
INDEBTEDNESS INCURRED PURSUANT TO THE CREDIT AGREEMENT AND THE SENIOR NOTES);
(III)
MERGE OR CONSOLIDATE WITH OR INTO ANY PERSON;
(IV)
SELL, LEASE OR OTHERWISE DISPOSE OF, OR PERMIT ANY OF ITS
SUBSIDIARIES TO SELL, LEASE OR OTHERWISE DISPOSE OF, ALL OR SUBSTANTIALLY ALL OF
THE ASSETS OF THE COMPANY
24
AND ITS SUBSIDIARIES (OTHER THAN SALES OF INVENTORY IN THE ORDINARY COURSE OF
BUSINESS) IN ANY TRANSACTION OR SERIES OF RELATED TRANSACTIONS;
(V)
LIQUIDATE, DISSOLVE OR EFFECT A RECAPITALIZATION OR REORGANIZATION
IN ANY FORM OF TRANSACTION (INCLUDING, WITHOUT LIMITATION, ANY REORGANIZATION
INTO A LIMITED LIABILITY COMPANY, A PARTNERSHIP OR ANY OTHER NON-CORPORATE
ENTITY WHICH IS TREATED AS A PARTNERSHIP FOR FEDERAL INCOME TAX PURPOSES);
(VI)
ENTER INTO, OR PERMIT ANY OF ITS SUBSIDIARIES TO ENTER INTO, THE
OWNERSHIP, ACTIVE MANAGEMENT OR OPERATION OF ANY BUSINESS OTHER THAN THE
BUSINESS CONDUCTED BY THE COMPANY AND ITS SUBSIDIARIES AS OF THE DATE HEREOF;
(VII)
AMEND ANY OF THE TRANSACTION DOCUMENTS, IN EACH CASE, IN ANY
MANNER WHICH WOULD HAVE AN ADVERSE EFFECT ON ANY BSMB INVESTOR;
(VIII)
FILE, PERMIT ANY OF THE COMPANY'S SUBSIDIARIES TO FILE, ANY
REGISTRATION STATEMENT WITH THE SEC WITH RESPECT TO THE REGISTRATION OF AN
OFFERING OR SALE OF ANY EQUITY SECURITIES;
(IX)
MAKE ANY MATERIAL CHANGE TO ITS ACCOUNTING PRACTICES, OTHER THAN
(A) AS REQUIRED BY APPLICABLE LAW OR REGULATION, (B) AS REQUIRED BY GAAP OR FASB
OR (C) AS APPROVED BY THE BOARD OR ANY COMMITTEE THEREOF;
(X)
CHANGE THE COMPANY'S AUDITORS;
(XI)
ISSUE OR REDEEM ANY COMMON STOCK EQUIVALENTS EXCEPT FOR THE
ISSUANCE OF COMMON STOCK EQUIVALENTS UPON (I) THE CONVERSION, EXCHANGE OR
REDEMPTION OF ANY OUTSTANDING CONVERTIBLE OR EXCHANGEABLE SECURITIES OR (II) THE
EXERCISE OF ANY OUTSTANDING OPTIONS OR WARRANTS;
(XII)
AGREE TO TAKE ANY OF THE FOREGOING ACTIONS.
(B)
RESTRICTIONS ON TRANSACTIONS WITH AFFILIATES.
EXCEPT FOR THE PROFESSIONAL
SERVICES AGREEMENT AND SUCH OTHER AGREEMENTS EXECUTED IN CONNECTION WITH THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT, NEITHER
THE COMPANY NOR ITS SUBSIDIARIES WILL ENTER INTO ANY TRANSACTION (OTHER THAN THE
ISSUANCE OF PREEMPTIVE SECURITIES PURSUANT TO SECTION 6 OF THIS AGREEMENT) WITH
BSMB OR ANY OF THEIR AFFILIATES (I) ON A BASIS THAT IS LESS FAVORABLE, IN THE
AGGREGATE AND IN ALL MATERIAL RESPECTS TO THE COMPANY THAN WOULD BE THE CASE IN
AN ARMS-LENGTH TRANSACTION WITH AN UNRELATED THIRD PARTY OR (II) FOR SERVICES
THAT ARE NOT REASONABLY REQUIRED OR DESIRABLE FOR THE COMPANY OR SUCH
SUBSIDIARIES, AS THE CASE MAY BE (AS DETERMINED IN GOOD FAITH BY THE BOARD).
10.
RIGHT TO REPURCHASE OTHER HOLDERS SHARES.
(A)
IN THE EVENT