OUTSIDE DATE (AS DEFINED IN SECTION 6.1 BELOW),
CISCO AND CSCC AGREE TO FOREBEAR FROM TAKING ANY ACTION UNDER THE SECOND AMENDED
AND RESTATED AGREEMENT, ORIGINAL NOTES OR ANY SECURITY AGREEMENT, PLEDGE
AGREEMENT, GUARANTY OR OTHER RELATED AGREEMENT OR INSTRUMENT TO ACCELERATE,
FORECLOSE ON OR OTHERWISE REALIZE ON SECURITY OR OTHERWISE DEMAND OR SEEK
PAYMENT OF ANY AMOUNTS OWED THEREUNDER OR EXERCISE ANY RIGHT OR REMEDY THAT
CISCO OR CSCC MIGHT OTHERWISE HAVE AS A RESULT OF ANY DEFAULT THAT EXISTS UNDER
ANY OF THE FOREGOING DOCUMENTS AS OF THE DATE OF THIS AGREEMENT.
WITHOUT
LIMITING THE GENERALITY OF THE IMMEDIATELY PRECEDING SENTENCE, UNTIL THE OUTSIDE
DATE, NEITHER CISCO NOR CSCC SHALL FILE (OR JOIN IN THE FILING OF) A PROCEEDING
(AS DEFINED IN SECTION 6.1 BELOW) AGAINST THE COMPANY OR ANY OF ITS
SUBSIDIARIES.
IF THE CLOSING HAS NOT OCCURRED ON OR BEFORE THE OUTSIDE DATE,
CSCC AND CISCO SHALL BE FREE TO PURSUE WHATEVER RIGHTS AND REMEDIES IT HAS UNDER
THE SECOND AMENDED AND RESTATED AGREEMENT, ANY "LOAN DOCUMENTS" AS DEFINED
THEREIN, AND UNDER APPLICABLE LAW.
IF ON OR BEFORE THE OUTSIDE DATE, THE
CLOSING OCCURS, ALL DEFAULTS EXISTING UNDER THE ORIGINAL NOTES AND THE SECOND
AMENDED AND RESTATED AGREEMENT SHALL BE DEEMED WAIVED, AND THE GENERAL RELEASE
SHALL BE EFFECTIVE IN ACCORDANCE WITH ITS TERMS.
NOTHING IN THIS SECTION 4.3
SHALL LIMIT THE RIGHTS CSCC HAS UNDER THE THIRD AMENDED AND RESTATED AGREEMENT,
THE OTHER LOAN DOCUMENTS AND APPLICABLE LAW WITH RESPECT TO DEFAULTS THAT ARISE
OR EVENTS THAT OCCUR AFTER THE DATE OF THIS AGREEMENT.
SECTION 4.4.
RESERVATION OF CONVERSION SHARES AFTER THE CLOSING AND FOR SO LONG
AS ANY CSCC SHARES ARE OUTSTANDING, THE COMPANY COVENANTS AND AGREES TO CONTINUE
TO RESERVE, FREE OF PREEMPTIVE RIGHTS AND OTHER PREFERENTIAL RIGHTS, A
SUFFICIENT NUMBER OF ITS PREVIOUSLY AUTHORIZED BUT UNISSUED SHARES OF ITS COMMON
STOCK TO SATISFY THE RIGHTS OF CONVERSION OF THE HOLDERS OF THE CSCC SHARES.
SECTION 4.5.
FINANCIAL INFORMATION.
(A)
THE COMPANY AGREES TO SEND THE FOLLOWING TO
CSCC: (A) UNLESS THE FOLLOWING ARE FILED WITH THE SEC THROUGH EDGAR AND ARE
AVAILABLE TO THE PUBLIC THROUGH EDGAR (IN WHICH CASE THE COMPANY WILL ENDEAVOR
TO PROVIDE E-MAIL OR OTHER NOTICE OF SUCH FILING), WITHIN TWO (2) DAYS AFTER THE
FILING THEREOF WITH THE SEC, A COPY OF ITS ANNUAL REPORTS ON
14
FORM 10-K, ITS QUARTERLY REPORTS ON FORM 10-Q, ANY CURRENT REPORTS ON FORM 8-K
AND ANY REGISTRATION STATEMENTS (OTHER THAN ON FORM S-8) OR AMENDMENTS FILED
PURSUANT TO THE SECURITIES ACT; (B) ON THE SAME DAY AS THE RELEASE THEREOF,
COPIES OF ANY NOTICES AND OTHER INFORMATION MADE AVAILABLE OR GIVEN TO THE
STOCKHOLDERS OF THE COMPANY GENERALLY, CONTEMPORANEOUSLY WITH THE MAKING
AVAILABLE OR GIVING THEREOF TO THE STOCKHOLDERS; AND (C) FROM TIME TO TIME, SUCH
OTHER FINANCIAL DATA AND INFORMATION RELATING TO THE COMPANY AND ITS
SUBSIDIARIES AS CSCC MAY REASONABLY REQUEST (SUBJECT TO APPROPRIATE
CONFIDENTIALITY PROCEDURES).
(B)
THE COMPANY SHALL PERMIT CSCC AND ITS
DESIGNATED REPRESENTATIVES, UPON