ERISA AFFILIATES FROM ANY BENEFIT PLAN OR MULTIEMPLOYER PLAN; (E) THE
RECEIPT BY THE COMPANY OR ANY OF ITS ERISA AFFILIATES FROM THE PBGC OR A PLAN
ADMINISTRATOR OF ANY NOTICE RELATING TO THE INTENTION TO TERMINATE ANY BENEFIT
PLAN OR PLANS OR TO APPOINT A TRUSTEE TO ADMINISTER ANY BENEFIT PLAN; (F) THE
ADOPTION OF ANY AMENDMENT TO A BENEFIT PLAN THAT WOULD REQUIRE THE PROVISION OF
SECURITY PURSUANT TO SECTION 401(A)(29) OF THE TAX CODE OR SECTION 307 OF ERISA;
(G) THE RECEIPT BY THE COMPANY OR ANY OF ITS ERISA AFFILIATES OF ANY NOTICE, OR
THE RECEIPT BY ANY MULTIEMPLOYER PLAN FROM THE COMPANY OR ANY OF ITS ERISA
AFFILIATES OF ANY NOTICE, CONCERNING THE IMPOSITION OF WITHDRAWAL LIABILITY OR A
DETERMINATION THAT A MULTIEMPLOYER PLAN IS, OR IS EXPECTED TO BE, INSOLVENT OR
IN REORGANIZATION, WITHIN THE MEANING OF TITLE IV OF ERISA; (H) THE OCCURRENCE
OF A "PROHIBITED TRANSACTION" INVOLVING A BENEFIT PLAN WITH RESPECT TO WHICH THE
COMPANY OR ANY OF THE SUBSIDIARIES IS A "DISQUALIFIED PERSON" (WITHIN THE
MEANING OF SECTION 4975 OF THE TAX CODE) OR WITH RESPECT TO WHICH THE COMPANY OR
ANY SUCH SUBSIDIARY COULD
16
OTHERWISE BE LIABLE; OR (I) ANY OTHER EVENT OR CONDITION WITH RESPECT TO A
BENEFIT PLAN OR MULTIEMPLOYER PLAN THAT COULD RESULT IN LIABILITY OF THE COMPANY
OR ANY SUBSIDIARY OF THE COMPANY.
(K)
"GOVERNMENTAL APPROVAL" MEANS ANY LICENSE,
PERMIT OR CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY ISSUED OR REQUIRED TO
BE ISSUED TO THE COMPANY OR ANY OF ITS SUBSIDIARIES BY ANY GOVERNMENTAL
AUTHORITY.
(L)
"GOVERNMENTAL AUTHORITY" MEANS ANY
UNITED STATES FEDERAL, STATE, LOCAL OR OTHER POLITICAL SUBDIVISION THEREOF AND
ANY UNITED STATES OR FOREIGN ENTITY EXERCISING EXECUTIVE, LEGISLATIVE, JUDICIAL,
REGULATORY OR ADMINISTRATIVE FUNCTIONS OF OR PERTAINING TO GOVERNMENT.
(M)
"HSR ACT" MEANS THE HART-SCOTT-RODINO
ANTITRUST IMPROVEMENTS ACT OF 1976, AS AMENDED.
(N)
"INTEREST RATE" MEANS 8.00% PER ANNUM,
SUBJECT TO ADJUSTMENT PURSUANT TO SECTION 2.
(O)
"IMAGIFY LICENSE" MEANS THE LICENSE
AGREEMENT BETWEEN THE COMPANY AND THE PURCHASER, IN THE FORM ATTACHED HERETO AS
EXHIBIT C.
(P)
"LATE CHARGES" HAS THE MEANING GIVEN SUCH
TERM IN SECTION 19(B).
(Q)
"MULTIEMPLOYER PLAN" MEANS A MULTIEMPLOYER
PLAN AS DEFINED IN SECTION 4001(A)(3) OF ERISA.
(R)
"NOTE PURCHASE AGREEMENT" MEANS THE NOTE
PURCHASE AGREEMENT DATED AS OF OCTOBER 24, 2008 BY AND BETWEEN THE COMPANY AND
THE PURCHASER.
(S)
"OPTIONS" MEANS ANY RIGHTS, WARRANTS OR
OPTIONS TO SUBSCRIBE FOR OR PURCHASE SHARES OF COMMON STOCK OR CONVERTIBLE
SECURITIES.
(T)
"PERMITTED INDEBTEDNESS" MEANS (I) THE
INDEBTEDNESS SET FORTH IN SCHEDULE 3.12 OF THE COMPANY DISCLOSURE LETTER (AS
DEFINED IN THE NOTE PURCHASE AGREEMENT UNDER THE HEADING "LOAN AGREEMENTS"),
(II) TRADE PAYABLES INCURRED IN THE ORDINARY COURSE OF BUSINESS, (III) OTHER
INDEBTEDNESS NOT EXCEEDING $2 MILLION IN THE AGGREGATE AT ANY ONE TIME
OUTSTANDING AND (IV) ANY OTHER INDEBTEDNESS CONSENTED IN WRITING BY THE
PURCHASER.
(U)
"PERMITTED LIENS" MEANS (I) ANY LIEN FOR
TAXES NOT YET DUE OR DELINQUENT OR BEING CONTESTED IN GOOD FAITH BY