OTHER BUSINESS ENTITY;
(II)
SELL A SUBSTANTIAL PORTION OF ASSETS NOT IN THE ORDINARY COURSE OF
BUSINESS;
(III) ENTER INTO A TRANSACTION THAT RESULTS IN OR CAUSE A CHANGE OF CONTROL;
(IV) AMEND THE COMPANY'S CHARTER OR BY-LAWS;
(V)
INCREASE THE NUMBER OF SHARES ISSUABLE PURSUANT TO ANY STOCK OPTION OR
OTHER EQUITY INCENTIVE PLAN;
(VI) CHANGE THE NATURE OF THE COMPANY'S BUSINESS TO ANY BUSINESS WHICH IS
FUNDAMENTALLY DISTINCT AND SEPARATE FROM THE BUSINESS CURRENTLY CONDUCTED BY THE
COMPANY;
(VII) CREATE, INCUR, ASSUME OR SUFFER TO EXIST INDEBTEDNESS GREATER THAN
$100,000 IN AGGREGATE, OTHER THAN (A) INDEBTEDNESS SET FORTH ON SCHEDULE
3.1(EE), (B) TRADE PAYABLES ARISING IN THE ORDINARY COURSE OF BUSINESS NOT MORE
THAN 90 DAYS PAST DUE, AND (C) CAPITAL LEASE OBLIGATIONS AND PURCHASE MONEY
INDEBTEDNESS OF UP TO $150,000 IN THE AGGREGATE INCURRED IN CONNECTION WITH THE
ACQUISITION OF CAPITAL ASSETS AND CAPITAL LEASE OBLIGATIONS WITH RESPECT TO
NEWLY ACQUIRED OR LEASED ASSETS;
25
(VIII)
CREATE OR SUFFER TO EXIST ANY LIEN OR TRANSFER UPON OR AGAINST ANY OF
ITS PROPERTY OR ASSETS NOW OWNED OR HEREAFTER ACQUIRED, EXCEPT WITH RESPECT TO
INDEBTEDNESS ALLOWED PURSUANT TO SECTION 4.13(B)(VII) ABOVE; OR
(IX)
CAUSE OR PERMIT ANY SUBSIDIARY OF THE COMPANY DIRECTLY OR INDIRECTLY TO
TAKE ANY ACTIONS DESCRIBED IN CLAUSES (I) THROUGH (VIII) ABOVE, OTHER THAN
ISSUING SECURITIES TO THE COMPANY.
4.14
REIMBURSEMENT.
IF ANY PURCHASER OR ANY OF ITS AFFILIATES OR ANY
OFFICER, DIRECTOR, PARTNER, CONTROLLING PERSON, EMPLOYEE OR AGENT OF A PURCHASER
OR ANY OF ITS AFFILIATES (A "RELATED PERSON") BECOMES INVOLVED IN ANY CAPACITY
IN ANY PROCEEDING BROUGHT BY OR AGAINST ANY PERSON IN CONNECTION WITH OR AS A
RESULT OF THE TRANSACTIONS CONTEMPLATED BY THE TRANSACTION DOCUMENTS, THE
COMPANY WILL INDEMNIFY AND HOLD HARMLESS SUCH PURCHASER OR RELATED PERSON FOR
ITS REASONABLE LEGAL AND OTHER EXPENSES (INCLUDING THE COSTS OF ANY
INVESTIGATION, PREPARATION AND TRAVEL) AND FOR ANY LOSSES INCURRED IN CONNECTION
THEREWITH, AS SUCH EXPENSES OR LOSSES ARE INCURRED, EXCLUDING ONLY LOSSES THAT
RESULT DIRECTLY FROM SUCH PURCHASER'S OR RELATED PERSON'S GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT.
IN ADDITION, THE COMPANY SHALL INDEMNIFY AND HOLD HARMLESS
EACH PURCHASER AND RELATED PERSON FROM AND AGAINST ANY AND ALL LOSSES, AS
INCURRED, ARISING OUT OF OR RELATING TO ANY BREACH BY THE COMPANY OF ANY OF THE
REPRESENTATIONS, WARRANTIES OR COVENANTS MADE BY THE COMPANY IN THIS AGREEMENT
OR ANY OTHER TRANSACTION DOCUMENT, OR ANY ALLEGATION BY A THIRD PARTY THAT, IF
TRUE, WOULD CONSTITUTE A BREACH.
THE CONDUCT OF ANY PROCEEDINGS FOR WHICH
INDEMNIFICATION IS AVAILABLE UNDER THIS PARAGRAPH SHALL BE GOVERNED BY SECTION
6.4(C) BELOW.
THE INDEMNIFICATION OBLIGATIONS OF THE COMPANY UNDER THIS
PARAGRAPH SHALL BE IN ADDITION TO ANY LIABILITY THAT THE COMPANY MAY OTHERWISE
HAVE AND SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF ANY SUCCESSORS,
ASSIGNS, HEIRS AND PERSONAL REPRESENTATIVES OF THE PURCHASERS AND ANY SUCH
RELATED PERSONS.
IF THE COMPANY BREACHES ITS OBLIGATIONS UNDER ANY TRANSACTION
DOCUMENT, THEN, IN ADDITION TO ANY OTHER LIABILITIES THE COMPANY