IN
THE AGGREGATE PURSUANT TO THE COMPANY PLANS AND (D) A PERMITTED EQUITY OFFERING
(SUBJECT TO THE TERMS OF THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, SECTIONS
5.1(B)(II), 5.2 AND 6.1 HEREOF), OR INSTITUTE ANY STOCK OPTION, INCENTIVE,
PURCHASE OR OTHER SIMILAR PLANS;
(IV)
PURCHASE, REDEEM, RETIRE OR OTHERWISE ACQUIRE,
SPLIT, COMBINE OR RECLASSIFY, DIRECTLY OR INDIRECTLY, ANY OF THE COMMON STOCK OR
OTHER EQUITY SECURITIES OF THE COMPANY OR GIVE NOTICE OF ANY INTENTION TO
EXERCISE ANY RIGHT TO PURCHASE, REDEEM OR OTHERWISE ACQUIRE, SPLIT, COMBINE OR
RECLASSIFY, ANY OF THE COMMON STOCK OR OTHER EQUITY SECURITIES OF THE COMPANY
(INCLUDING ANY SUCH PURCHASE, REDEMPTION OR ACQUISITION IN ACCORDANCE WITH THE
TERMS OF THE CERTIFICATE OF INCORPORATION OR BYLAWS OR ANY STOCKHOLDERS
AGREEMENT), OTHER THAN (1) REDEMPTIONS IN ACCORDANCE WITH ANY EMPLOYEE OR
CONSULTANT AGREEMENT APPROVED BY THE BOARD OF DIRECTORS IN CONNECTION WITH A
SEPARATION OF SERVICE AND (2) A REVERSE STOCK SPLIT CONSUMMATED IN ORDER TO
MAINTAIN THE LISTING OF THE COMMON STOCK ON NASDAQ;
(V)
EXCEPT WITH RESPECT TO THE SHARES OF 6.5%
CONVERTIBLE EXCHANGEABLE PREFERRED STOCK ISSUED AND OUTSTANDING AS OF THE
CLOSING DATE, DECLARE OR PAY ANY DIVIDENDS ON OR MAKE OTHER DISTRIBUTIONS
(WHETHER IN CASH, STOCK OR PROPERTY OR ANY COMBINATION THEREOF), DIRECTLY OR
INDIRECTLY, IN RESPECT OF THE COMMON STOCK OR OTHER EQUITY SECURITIES;
*CONFIDENTIAL TREATMENT REQUESTED
32
(VI)
ENTER INTO OR PERMIT TO EXIST ANY AGREEMENT OR
UNDERTAKING (OTHER THAN THIS AGREEMENT) WHICH PROHIBITS, RESTRICTS OR LIMITS THE
ABILITY OF ANY SUBSIDIARY OF THE COMPANY TO PAY DIVIDENDS OR DISTRIBUTIONS TO
THE COMPANY, OR OTHERWISE TO TRANSFER ASSETS OR ENGAGE IN TRANSACTIONS WITH THE
COMPANY;
(VII)
FORM ANY MATERIAL JOINT VENTURE OR PARTNERSHIP;
(VIII)
HAVE A SUBSIDIARY WHICH IS NOT WHOLLY-OWNED BY THE
COMPANY, EITHER DIRECTLY OR INDIRECTLY THROUGH ONE OR MORE OF ITS SUBSIDIARIES;
(IX)
VOLUNTARILY DISSOLVE OR LIQUIDATE;
(X)
INCUR, CREATE, ASSUME, BECOME OR BE LIABLE
IN ANY MANNER WITH RESPECT TO, OR PERMIT TO EXIST, ANY INDEBTEDNESS OTHER THAN
(A) THE NOTE, (B) TRADE PAYABLES INCURRED IN THE ORDINARY COURSE OF BUSINESS,
(C) THE INDEBTEDNESS LISTED ON SCHEDULE 3.12(A) OF THE COMPANY DISCLOSURE LETTER
OR (D) OTHER INDEBTEDNESS NOT TO EXCEED $1,000,000 IN THE AGGREGATE AT ANY ONE
TIME OUTSTANDING;
(XI)
ENTER INTO ANY CONTRACT WITH RESPECT TO THE
ACQUISITION BY THE COMPANY (WHETHER BY PURCHASE OR MERGER OR CONSOLIDATION OF
THE COMPANY OR ANY OF ITS SUBSIDIARIES WITH ANOTHER PERSON) OF ANY BUSINESS,
ASSETS (INCLUDING BY LICENSE OF ANY PRODUCT) OR PROPERTY (REAL, PERSONAL OR
MIXED, TANGIBLE OR INTANGIBLE, INCLUDING STOCK OR OTHER EQUITY INTERESTS IN, OR
EVIDENCES OF THE INDEBTEDNESS OF, ANY OTHER CORPORATION, PARTNERSHIP OR ENTITY),
OTHER THAN ACQUISITIONS OF ASSETS IN THE ORDINARY COURSE OF BUSINESS AND
CONSISTENT WITH PAST PRACTICE AND OTHER THAN ANY SUCH ACQUISITION RESULTING IN
AN AGGREGATE EXPENDITURE BY THE COMPANY AND ITS SUBSIDIARIES OF LESS THAN
$100,000;
(XII)
OTHER THAN DISPOSITIONS OF THE COLLATERAL
SECURED BY THE LIENS GRANTED TO GENERAL ELECTRIC CAPITAL CORPORATION LISTED ON
SCHEDULE 1.1(B) OF