Common use of Standstill Restrictions Clause in Contracts

Standstill Restrictions. 6.1 Until the later of (x) the time that the Investors’ Ownership Percentage is less than 3% and (y) June 23, 2012, each of the Investors and their respective Affiliates (including commonly controlled or managed investment funds) shall not (i) directly or indirectly acquire, agree to acquire, or offer to acquire, beneficial ownership of any equity or debt securities of the Company, any warrant or option to purchase such securities, any security convertible into any such securities, or any other right to acquire such securities, other the Preferred Shares, Common Stock acquired upon conversion of such Preferred Shares and any Preferred Shares or Common Stock paid as dividends or as an increase of the accrued liquidation payment amount or distributions thereon, (ii) directly or indirectly enter into or agree to enter into any merger, business combination, recapitalization, restructuring, change of control transaction or other extraordinary transaction involving the Company or any of its Subsidiaries, (iii) make, or in any way participate or engage in, directly or indirectly, any solicitation of proxies to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company or any of Subsidiary of the Company, (iv) bring any action or otherwise act to contest the validity of the restrictions set forth in this Section 6, or seek a release of such restrictions, (v) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any voting securities of the Company or any Subsidiary of the Company except for any group constituting solely of the Investors and their respective Affiliates, (vi) seek the removal of any directors from the Board or a change in the size or composition of the Board (including, without limitation, voting for any directors not nominated by the Board), except as otherwise provided in Section 2.5(b) and the Series A Certificate of Designations and the Series B Certificate of Designations, (vii) propose or enter into any discussions, negotiations, arrangements, understandings or agreements (whether written or oral) with any other person regarding any possible purchase or sale of any securities or assets of the Company or any Subsidiary of the Company (other than securities owned by the Investors), (viii) call, request the calling of, or otherwise seek or assist in the calling of a special meeting of the shareholders of the Company, (ix) deposit any Preferred Shares or Common Stock in a voting trust or similar arrangement or subject any Preferred Shares or Common Stock to any voting agreement, pooling arrangement or similar arrangement, or grant any proxy with respect to any Preferred Shares or Common Stock to any person not affiliated with the Investor or Company management; (x) enter into any swap or any other agreement, transaction or series of transactions that ▇▇▇▇▇▇ or transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Preferred Shares or the Common Stock, whether any such transaction, swap or series of transactions is to be settled by delivery of securities, in cash or otherwise; (xi) disclose any intention, plan or arrangement prohibited by, or inconsistent with, the foregoing or (xii) make, or take, any action that would reasonably be expected to cause the Company to make a public announcement regarding any intention of any Investor to take an action that would be prohibited by the foregoing; provided, however, that the foregoing shall not restrict the ability of the Investor Designees or other directors appointed or elected to the Board pursuant to the terms of the Series A Certificate of Designations and the Series B Certificate of Designations from exercising their fiduciary duties. 6.2 Notwithstanding the foregoing, if the Board decides to engage in a process that could give rise to a change of control of the Company, the Company shall invite the Investors acting through the Investor Representative to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that each Investor Designee shall resign from the Board during the period in which the Investors Representative on behalf of any Investor is participating in such process; provided, further, however, that, following the termination of the Investors participation in any process, the Investors’ right to nominate the Investor Designees shall be reinstated and the Company shall appoint the Investor Designees that resigned to the Board as soon as reasonably possible. In addition, if requested by the Board, the Investor Representative on behalf of the Investors may submit a confidential private acquisition proposal to the Board and respond to any related inquiries from the Board, provided that any such proposal shall be conditioned on approval of the Board.

Standstill Restrictions. 6.1 Until Each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and DW Lips covenants and agrees with the later Company that they shall not, and shall cause each ▇▇▇▇▇▇▇▇▇ Party not to, prior to the earlier of (i) the fifth anniversary of the date of this Agreement and (ii) the KG Termination Date, directly or indirectly, alone or in concert with others, unless specifically requested in writing by a Principal Holder or by a resolution of a majority of the Directors or pursuant to a transaction (x) in which the time that the Investors’ Ownership Percentage is less than 3% and Company has entered into a definitive agreement or (y) June 23the Board has recommended in favor of, 2012, each take any of the Investors and their respective Affiliates actions set forth below (including commonly controlled or managed investment fundstake any action that would require the Company to make an announcement regarding any of the following): effect, seek, offer, engage in, propose (whether publicly or otherwise) shall not (i) directly or indirectly acquire, agree to acquirecause or participate in, or offer to acquire, beneficial ownership of any equity or debt securities of the Company, any warrant or option to purchase such securities, any security convertible into any such securities, or assist any other right Person to acquire such securitieseffect, other the Preferred Sharesseek, Common Stock acquired upon conversion of such Preferred Shares and engage in, offer or propose (whether publicly or otherwise) or participate in: any Preferred Shares tender or Common Stock paid as dividends or as an increase of the accrued liquidation payment amount or distributions thereonexchange offer, (ii) directly or indirectly enter into or agree to enter into any merger, consolidation, share exchange, business combination, recapitalization, restructuring, change of control transaction liquidation, dissolution or other extraordinary transaction involving the Company or any of its Subsidiaries, (iii) make, subsidiaries or in any way participate material portion of its or engage in, directly their business or indirectly, any solicitation purchase of proxies to vote, all or seek to advise or influence any person with respect to substantial part of the voting of, any voting securities assets of the Company or any of Subsidiary its subsidiaries or any material portion of its or their business; or any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Section 14a-1(1)(2)(iv) from the definition of “solicitation”) with respect to the Company or any of its Affiliates or any action resulting in ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, DW Lips, any Affiliate of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or DW Lips or such other Person becoming a “participant” in any “election contest” (as such terms are used in the proxy rules of the SEC) with respect to the Company or any of its subsidiaries; propose any matter for submission to a vote of stockholders of the Company or call or seek to call a meeting of the stockholders of the Company; seek election to, seek to place a representative on or seek the removal of any Director; provided, however, that nothing in this Section 2.01(c) shall restrict the manner in which a ▇▇▇▇▇▇▇▇▇ Party may vote its shares of Common Stock (ivif any); grant any proxy with respect to any Common Stock (other than to a Principal Holder, the Chief Executive Officer of the Company or a bona fide financial institution in connection with a bona fide recourse borrowing); execute any written consent with respect to any Common Stock other than at the request of a Principal Holder or the Chief Executive Officer of the Company; form, join or participate in a Group with respect to any Common Stock or deposit any Common Stock in a voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of such Common Stock or other agreement having similar effect (in each case except with the Class B Holders); take any other action to seek to affect the control of the management or Board of the Company or any of its Affiliates, including publicly suggesting or announcing its willingness to engage in or have another Person engage in a transaction that could reasonably be expected to result in a transaction of the type described in Section 2.01(a)(i); provided, however, that nothing in this Section 2.01(g) shall restrict the manner in which a ▇▇▇▇▇▇▇▇▇ Party may vote its shares of Common Stock (if any); enter into any discussions, negotiations, arrangements or understandings with any Person with respect to any of the foregoing, or advise, assist, encourage or seek to persuade others to take any action with respect to any of the foregoing (in each case except with the Class B Holders); disclose to any Person, or otherwise induce, encourage, discuss or facilitate, any intention, plan or arrangement inconsistent with the foregoing or which would result in the Company or any of its Affiliates or any Class B Holder or any Affiliates of any Class B Holder being required to make any such disclosure in any filing with a governmental entity or being required to make a public announcement with respect thereto; bring any action or otherwise act to contest the validity of the restrictions set forth in this Article II (including this Section 6, 2.01) or seek a release from the restrictions contained in this Article II; or request the Company or any of such restrictionsits Affiliates, directors, officers, employees, representatives, advisors or agents, or any party hereto, directly or indirectly, to amend or waive this Article II, the Charter or the By-laws (vor similar constituent documents) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any voting securities of the Company or any Subsidiary of the Company except for any group constituting solely of the Investors and their respective its Affiliates, (vi) seek the removal of any directors from the Board or a change in the size or composition of the Board (including, without limitation, voting for any directors not nominated by the Board), except as otherwise provided in Section 2.5(b) and the Series A Certificate of Designations and the Series B Certificate of Designations, (vii) propose or enter into any discussions, negotiations, arrangements, understandings or agreements (whether written or oral) with any other person regarding any possible purchase or sale of any securities or assets of the Company or any Subsidiary of the Company (other than securities owned by the Investors), (viii) call, request the calling of, or otherwise seek or assist in the calling of a special meeting of the shareholders of the Company, (ix) deposit any Preferred Shares or Common Stock in a voting trust or similar arrangement or subject any Preferred Shares or Common Stock to any voting agreement, pooling arrangement or similar arrangement, or grant any proxy with respect to any Preferred Shares or Common Stock to any person not affiliated with the Investor or Company management; (x) enter into any swap or any other agreement, transaction or series of transactions that ▇▇▇▇▇▇ or transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Preferred Shares or the Common Stock, whether any such transaction, swap or series of transactions is to be settled by delivery of securities, in cash or otherwise; (xi) disclose any intention, plan or arrangement prohibited by, or inconsistent with, the foregoing or (xii) make, or take, any action that would reasonably be expected to cause the Company to make a public announcement regarding any intention of any Investor to take an action that would be prohibited by the foregoing; provided, however, that the foregoing shall not restrict the ability of the Investor Designees or other directors appointed or elected to the Board pursuant to the terms of the Series A Certificate of Designations and the Series B Certificate of Designations from exercising their fiduciary duties. 6.2 Notwithstanding the foregoing, if the Board decides to engage in a process that could give rise to a change of control of the Company, the Company shall invite the Investors acting through the Investor Representative to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that each Investor Designee shall resign from the Board during the period in which the Investors Representative on behalf of any Investor is participating in such process; provided, further, however, that, following the termination of the Investors participation in any process, the Investors’ right to nominate the Investor Designees shall be reinstated and the Company shall appoint the Investor Designees that resigned to the Board as soon as reasonably possible. In addition, if requested by the Board, the Investor Representative on behalf of the Investors may submit a confidential private acquisition proposal to the Board and respond to any related inquiries from the Board, provided that any such proposal shall be conditioned on approval of the Board.

Standstill Restrictions. 6.1 (a) Until the later of (x) time when the time that the Investors’ Ownership Percentage is Investor owns less than 32% and (y) June 23, 2012, each of the Investors Company's outstanding Common Stock on a fully-diluted basis and their respective Affiliates (including commonly controlled or managed investment funds) calculated assuming full exercise of the Warrant, neither the Investor nor any Affiliate of the Investor shall not (i) directly or indirectly acquire, agree to acquire, or offer to acquire, beneficial ownership of any equity or debt securities of the Company, any warrant or option to purchase such securities, any security convertible into any such securities, or any other right to acquire such securities, other than the Preferred Shares, shares of Common Stock issued pursuant to this Agreement or the Common Stock acquired upon conversion exercise of such Preferred Shares and any Preferred Shares the Warrant or as otherwise would not increase the Investor's beneficial ownership of the Company's Common Stock paid as dividends or as by greater than 1% on an increase of the accrued liquidation payment amount or distributions thereonas-converted basis, (ii) directly bring any action or indirectly enter into otherwise act to contest the validity of the restrictions set forth in this Section 6.7, or agree to enter into any merger, business combination, recapitalization, restructuring, change seek a release of control transaction or other extraordinary transaction involving the Company or any of its Subsidiariessuch restrictions, (iii) deposit any Common Stock in a voting trust or similar arrangement or subject any Common Stock to any voting agreement, pooling arrangement or similar arrangement, or grant any proxy with respect to any Common Stock to any person not affiliated with the Investor or Company management; (iv) make, or in any way participate or engage in, directly or indirectly, any solicitation of proxies to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company or any of Subsidiary of the Company, (iv) bring any action or otherwise act to contest the validity of the restrictions set forth in this Section 6, or seek a release of such restrictions, (v) form, join or in any way participate in a “"group” " (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any voting securities of the Company or any Subsidiary of the Company except for any group constituting solely of the Investors Investor and their respective Affiliatesany Affiliate of Investor, (vi) seek the removal of any directors from the Board or a change in the size or composition of the Board (including, without limitation, voting for any directors not nominated by the Board), except as otherwise provided in Section 2.5(b) and the Series A Certificate of Designations and the Series B Certificate of Designations6.5, (vii) propose or enter into any discussions, negotiations, arrangements, understandings or agreements (whether written or oral) with any other person regarding any possible purchase or sale of any securities or assets of the Company or any Subsidiary of the Company (other than securities owned by the Investors), (viii) call, request the calling of, or otherwise seek or assist in the calling of a special meeting of the shareholders of the Company, (ix) deposit any Preferred Shares or Common Stock in a voting trust or similar arrangement or subject any Preferred Shares or Common Stock to any voting agreement, pooling arrangement or similar arrangement, or grant any proxy with respect to any Preferred Shares or Common Stock to any person not affiliated with the Investor or Company management; (x) enter into any swap or any other agreement, transaction or series of transactions that ▇▇▇▇▇▇ or transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Preferred Shares or the Common Stock, whether any such transaction, swap or series of transactions is to be settled by delivery of securities, in cash or otherwise; (xiviii) disclose any intention, plan or arrangement prohibited by, or inconsistent with, the foregoing or (xiiix) make, or take, any action that would reasonably be expected to cause the Company to make a public announcement regarding any intention of any the Investor to take an action that would be prohibited by the foregoing; provided, however, that the foregoing shall not restrict the Investor from complying with applicable law or the ability of the Investor Designees or other directors appointed or elected to the Board pursuant to the terms of the Series A Certificate of Designations and the Series B Certificate of Designations Designee from exercising their his or her fiduciary dutiesduties or powers as directors. 6.2 (b) Notwithstanding the foregoing, for so long as the restrictions in Section 6.7(a) apply, if the Board decides to engage in a process that could give rise to a change of control of the Company, the Company shall invite the Investors acting through the Investor Representative to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that each in the event the Investor participates in such process, the Investor Designee shall resign recuse himself or herself from voting on, or otherwise receiving any confidential information regarding, matters in connection with the Board during the period in which the Investors Representative on behalf of any Investor is participating in such process; provided, further, however, that, following the termination of the Investors Investor's participation in any process, the Investors’ Investor's right to nominate vote on, and receive confidential information about, the Investor Designees process shall be reinstated and the Company shall appoint the Investor Designees that resigned to the Board as soon as reasonably possiblereinstated. In addition, if requested by the Board, the Investor Representative on behalf of the Investors may submit a confidential private acquisition proposal to the Board and respond to any related inquiries from the Board, provided that any such proposal shall be conditioned on approval of the Board.

Standstill Restrictions. 6.1 Until Investor covenants and agrees that, for so long as the later Investor owns at least 3,500,000 Shares (including Shares underlying the Warrant), subject to appropriate adjustment for stock splits, stock dividends, recapitalizations and similar transactions, from the date of (x) this Agreement until the time that third anniversary of the Investors’ Ownership Percentage is less than 3% date of this Agreement, without the prior written consent of the Company approved by a majority of the disinterested members of the Board, it and (y) June 23, 2012, each of the Investors and their respective its Affiliates (including commonly controlled shall not, directly or managed investment funds) shall not indirectly, alone or through or with others: (i) directly or indirectly acquire, agree announce an intention to acquire, offer to acquire, or offer enter into any agreement, arrangement or undertaking of any kind the purpose of which is to acquire, beneficial ownership by purchase, exchange or otherwise, (A) any shares of any equity or debt securities Voting Stock, other than upon exercise of the CompanyWarrant, or (B) any warrant or option to purchase such securities, any other security convertible into any such securitiesinto, or any other option, warrant or right to acquire such securitiesacquire, Voting Stock, in each case other the Preferred Shares, Common Stock acquired upon conversion of such Preferred Shares and any Preferred Shares or Common Stock paid as dividends or as an increase of the accrued liquidation payment amount or distributions thereon, than pursuant to Section 5.4 hereof; (ii) directly solicit or indirectly enter into propose to effect or agree to enter into negotiate any merger, consolidation, other business combination, recapitalizationliquidation, restructuring, change sale of control transaction the Company or other extraordinary transaction involving all or any substantial portion of the assets of the Company or any other change of its Subsidiaries, control of the Company or similar extraordinary transaction; (iii) makesolicit, initiate or participate in any "solicitation" of "proxies" or become a "participant" in any "election contest" (as such terms are defined or used in Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including an exempt solicitation pursuant to Rule 14a-2(b)(1)); call, or in any way participate or engage in, directly or indirectlyin a call for, any solicitation special meeting of proxies to vote, shareholders of the Company (or seek to advise or influence take any person action with respect to acting by written consent of the voting ofshareholders of the Company); request, or take any voting action to obtain or retain any lists of holders of any securities of the Company Company; or initiate or propose any of Subsidiary shareholder proposal or participate in the making of, or solicit shareholders of the CompanyCompany for the approval of, one or more shareholder proposals; (iv) bring any action seek representation on the Board or otherwise act to contest a change in the validity composition or size of the restrictions set forth in this Section 6, or seek a release of such restrictions, Board; (v) deposit any shares of Voting Stock in a voting trust or similar agreement; (vi) act in concert with any other Person or Group by becoming a member of a 13D Group; (vii) take any action to form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any voting securities of the Company or any Subsidiary of the Company except for any group constituting solely of the Investors and their respective Affiliatespartnership, (vi) seek the removal of any directors from the Board or a change in the size or composition of the Board (includinglimited partnership, without limitationlimited liability company, voting for any directors not nominated by the Board), except as otherwise provided in Section 2.5(b) and the Series A Certificate of Designations and the Series B Certificate of Designations, (vii) propose or enter into any discussions, negotiations, arrangements, understandings or agreements (whether written or oral) with any other person regarding any possible purchase or sale of any securities or assets of the Company or any Subsidiary of the Company (other than securities owned by the Investors), (viii) call, request the calling of, or otherwise seek or assist in the calling of a special meeting of the shareholders of the Company, (ix) deposit any Preferred Shares or Common Stock in a voting trust or similar arrangement or subject any Preferred Shares or Common Stock to any voting agreement, pooling arrangement or similar arrangement, or grant any proxy with respect to any Preferred Shares or Common Stock to any person not affiliated with the Investor or Company management; (x) enter into any swap or any other agreement, transaction or series of transactions that ▇▇▇▇▇▇ or transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Preferred Shares or the Common Stock, whether any such transaction, swap or series of transactions is to be settled by delivery of securities, in cash or otherwise; (xi) disclose any intention, plan or arrangement prohibited by, or inconsistent with, the foregoing or (xii) make, or take, any action that would reasonably be expected to cause the Company to make a public announcement regarding any intention of any Investor to take an action that would be prohibited by the foregoing; provided, however, that the foregoing shall not restrict the ability of the Investor Designees syndicate or other directors appointed or elected to the Board pursuant to the terms of the Series A Certificate of Designations and the Series B Certificate of Designations from exercising their fiduciary duties. 6.2 Notwithstanding the foregoing, if the Board decides to engage in a process that could give rise to a change of control of the Company, the Company shall invite the Investors acting through the Investor Representative to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that each Investor Designee shall resign from the Board during the period in which the Investors Representative on behalf of any Investor is participating in such process; provided, further, however, that, following the termination of the Investors participation in any process, the Investors’ right to nominate the Investor Designees shall be reinstated and the Company shall appoint the Investor Designees that resigned to the Board as soon as reasonably possible. In addition, if requested by the Board, the Investor Representative on behalf of the Investors may submit a confidential private acquisition proposal to the Board and respond to any related inquiries from the Board, provided that any such proposal shall be conditioned on approval of the Board.Group with respect

Standstill Restrictions. 6.1 Until Each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and DW Lips covenants and agrees with the later Company that they shall not, and shall cause each ▇▇▇▇▇▇▇▇▇ Party not to, prior to the earlier of (i) the fifth anniversary of the date of this Agreement and (ii) the KG Termination Date, directly or indirectly, alone or in concert with others, unless specifically requested in writing by a Principal Holder or by a resolution of a majority of the Directors or pursuant to a transaction (x) in which the time that the Investors’ Ownership Percentage is less than 3% and Company has entered into a definitive agreement or (y) June 23the Board has recommended in favor of, 2012, each take any of the Investors and their respective Affiliates actions set forth below (including commonly controlled or managed investment fundstake any action that would require the Company to make an announcement regarding any of the following): (a) shall not effect, seek, offer, engage in, propose (whether publicly or otherwise) or cause or participate in, or assist any other Person to effect, seek, engage in, offer or propose (whether publicly or otherwise) or participate in: (i) directly any tender or indirectly acquireexchange offer, agree to acquiremerger, or offer to acquireconsolidation, beneficial ownership of any equity or debt securities of the Company, any warrant or option to purchase such securities, any security convertible into any such securities, or any other right to acquire such securities, other the Preferred Shares, Common Stock acquired upon conversion of such Preferred Shares and any Preferred Shares or Common Stock paid as dividends or as an increase of the accrued liquidation payment amount or distributions thereon, (ii) directly or indirectly enter into or agree to enter into any mergershare exchange, business combination, recapitalization, restructuring, change of control transaction liquidation, dissolution or other extraordinary transaction involving the Company or any of its Subsidiaries, (iii) make, subsidiaries or in any way participate material portion of its or engage in, directly their business or indirectly, any solicitation purchase of proxies to vote, all or seek to advise or influence any person with respect to substantial part of the voting of, any voting securities assets of the Company or any of Subsidiary its subsidiaries or any material portion of its or their business; or (ii) any "solicitation" of "proxies" (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Section 14a-1(1)(2)(iv) from the definition of "solicitation") with respect to the Company or any of its Affiliates or any action resulting in ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, DW Lips, any Affiliate of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or DW Lips or such other Person becoming a "participant" in any "election contest" (as such terms are used in the proxy rules of the SEC) with respect to the Company or any of its subsidiaries; (b) propose any matter for submission to a vote of stockholders of the Company or call or seek to call a meeting of the stockholders of the Company; (c) seek election to, seek to place a representative on or seek the removal of any Director; provided, however, that nothing in this Section 2.01(c) shall restrict the manner in which a ▇▇▇▇▇▇▇▇▇ Party may vote its shares of Common Stock (ivif any); (d) grant any proxy with respect to any Common Stock (other than to a Principal Holder, the Chief Executive Officer of the Company or a bona fide financial institution in connection with a bona fide recourse borrowing); (e) execute any written consent with respect to any Common Stock other than at the request of a Principal Holder or the Chief Executive Officer of the Company; (f) form, join or participate in a Group with respect to any Common Stock or deposit any Common Stock in a voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of such Common Stock or other agreement having similar effect (in each case except with the Class B Holders); (g) take any other action to seek to affect the control of the management or Board of the Company or any of its Affiliates, including publicly suggesting or announcing its willingness to engage in or have another Person engage in a transaction that could reasonably be expected to result in a transaction of the type described in Section 2.01(a)(i); provided, however, that nothing in this Section 2.01(g) shall restrict the manner in which a ▇▇▇▇▇▇▇▇▇ Party may vote its shares of Common Stock (if any); (h) enter into any discussions, negotiations, arrangements or understandings with any Person with respect to any of the foregoing, or advise, assist, encourage or seek to persuade others to take any action with respect to any of the foregoing (in each case except with the Class B Holders); (i) disclose to any Person, or otherwise induce, encourage, discuss or facilitate, any intention, plan or arrangement inconsistent with the foregoing or which would result in the Company or any of its Affiliates or any Class B Holder or any Affiliates of any Class B Holder being required to make any such disclosure in any filing with a governmental entity or being required to make a public announcement with respect thereto; (j) bring any action or otherwise act to contest the validity of the restrictions set forth in this Article II (including this Section 6, 2.01) or seek a release from the restrictions contained in this Article II; or (k) request the Company or any of such restrictionsits Affiliates, directors, officers, employees, representatives, advisors or agents, or any party hereto, directly or indirectly, to amend or waive this Article II, the Charter or the By-laws (vor similar constituent documents) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any voting securities of the Company or any Subsidiary of the Company except for any group constituting solely of the Investors and their respective its Affiliates, (vi) seek the removal of any directors from the Board or a change in the size or composition of the Board (including, without limitation, voting for any directors not nominated by the Board), except as otherwise provided in Section 2.5(b) and the Series A Certificate of Designations and the Series B Certificate of Designations, (vii) propose or enter into any discussions, negotiations, arrangements, understandings or agreements (whether written or oral) with any other person regarding any possible purchase or sale of any securities or assets of the Company or any Subsidiary of the Company (other than securities owned by the Investors), (viii) call, request the calling of, or otherwise seek or assist in the calling of a special meeting of the shareholders of the Company, (ix) deposit any Preferred Shares or Common Stock in a voting trust or similar arrangement or subject any Preferred Shares or Common Stock to any voting agreement, pooling arrangement or similar arrangement, or grant any proxy with respect to any Preferred Shares or Common Stock to any person not affiliated with the Investor or Company management; (x) enter into any swap or any other agreement, transaction or series of transactions that ▇▇▇▇▇▇ or transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Preferred Shares or the Common Stock, whether any such transaction, swap or series of transactions is to be settled by delivery of securities, in cash or otherwise; (xi) disclose any intention, plan or arrangement prohibited by, or inconsistent with, the foregoing or (xii) make, or take, any action that would reasonably be expected to cause the Company to make a public announcement regarding any intention of any Investor to take an action that would be prohibited by the foregoing; provided, however, that the foregoing shall not restrict the ability of the Investor Designees or other directors appointed or elected to the Board pursuant to the terms of the Series A Certificate of Designations and the Series B Certificate of Designations from exercising their fiduciary duties. 6.2 Notwithstanding the foregoing, if the Board decides to engage in a process that could give rise to a change of control of the Company, the Company shall invite the Investors acting through the Investor Representative to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that each Investor Designee shall resign from the Board during the period in which the Investors Representative on behalf of any Investor is participating in such process; provided, further, however, that, following the termination of the Investors participation in any process, the Investors’ right to nominate the Investor Designees shall be reinstated and the Company shall appoint the Investor Designees that resigned to the Board as soon as reasonably possible. In addition, if requested by the Board, the Investor Representative on behalf of the Investors may submit a confidential private acquisition proposal to the Board and respond to any related inquiries from the Board, provided that any such proposal shall be conditioned on approval of the Board.

Standstill Restrictions. 6.1 Until Investor covenants and agrees that, for ----------------------- so long as the later Investor owns at least 3,500,000 Shares (including Shares underlying the Warrant), subject to appropriate adjustment for stock splits, stock dividends, recapitalizations and similar transactions, from the date of (x) this Agreement until the time that third anniversary of the Investors’ Ownership Percentage is less than 3% date of this Agreement, without the prior written consent of the Company approved by a majority of the disinterested members of the Board, it and (y) June 23, 2012, each of the Investors and their respective its Affiliates (including commonly controlled shall not, directly or managed investment funds) shall not indirectly, alone or through or with others: (i) directly or indirectly acquire, agree announce an intention to acquire, offer to acquire, or offer enter into any agreement, arrangement or undertaking of any kind the purpose of which is to acquire, beneficial ownership by purchase, exchange or otherwise, (A) any shares of any equity or debt securities Voting Stock, other than upon exercise of the CompanyWarrant, or (B) any warrant or option to purchase such securities, any other security convertible into any such securitiesinto, or any other option, warrant or right to acquire such securitiesacquire, Voting Stock, in each case other the Preferred Shares, Common Stock acquired upon conversion of such Preferred Shares and any Preferred Shares or Common Stock paid as dividends or as an increase of the accrued liquidation payment amount or distributions thereon, than pursuant to Section 5.4 hereof; (ii) directly solicit or indirectly enter into propose to effect or agree to enter into negotiate any merger, consolidation, other business combination, recapitalizationliquidation, restructuring, change sale of control transaction the Company or other extraordinary transaction involving all or any substantial portion of the assets of the Company or any other change of its Subsidiaries, control of the Company or similar extraordinary transaction; (iii) makesolicit, initiate or participate in any "solicitation" of "proxies" or become a "participant" in any "election contest" (as such terms are defined or used in Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including an exempt solicitation pursuant to Rule 14a-2(b)(1)); call, or in any way participate or engage in, directly or indirectlyin a call for, any solicitation special meeting of proxies to vote, shareholders of the Company (or seek to advise or influence take any person action with respect to acting by written consent of the voting ofshareholders of the Company); request, or take any voting action to obtain or retain any lists of holders of any securities of the Company Company; or initiate or propose any of Subsidiary shareholder proposal or participate in the making of, or solicit shareholders of the CompanyCompany for the approval of, one or more shareholder proposals; (iv) bring any action seek representation on the Board or otherwise act to contest a change in the validity composition or size of the restrictions set forth in this Section 6, or seek a release of such restrictions, Board; (v) deposit any shares of Voting Stock in a voting trust or similar agreement; (vi) act in concert with any other Person or Group by becoming a member of a 13D Group; (vii) take any action to form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) any partnership, limited partnership, limited liability company, syndicate or other Group with respect to any voting securities of the Company Voting Stock or any Subsidiary of the Company except for any group constituting solely of the Investors and their respective Affiliates, (vi) seek the removal of any directors from the Board or a change otherwise act in the size or composition of the Board (including, without limitation, voting for any directors not nominated by the Board), except as otherwise provided in Section 2.5(b) and the Series A Certificate of Designations and the Series B Certificate of Designations, (vii) propose or enter into any discussions, negotiations, arrangements, understandings or agreements (whether written or oral) concert with any other person regarding any possible purchase Person for the purpose of circumventing the provisions or sale purposes of any securities or assets of the Company or any Subsidiary of the Company (other than securities owned by the Investors), this Agreement; (viii) callotherwise act in concert with any Person, request to seek to control, direct or influence the calling ofmanagement, Board (or otherwise seek any individual members thereof), stockholders or assist in the calling of a special meeting of the shareholders policies of the Company, ; (ix) deposit finance or offer to provide financing for an attempt by any Preferred Shares Person to engage in any of the activities or Common Stock in a voting trust actions which, if taken by Investor, would be prohibited or similar arrangement or subject any Preferred Shares or Common Stock to any voting agreement, pooling arrangement or similar arrangement, or grant any proxy with respect to any Preferred Shares or Common Stock to any person not affiliated with restricted by the Investor or Company management; terms of this Agreement; (x) enter into any swap or any other agreement, transaction or series of transactions that ▇▇▇▇▇▇ or transfers, in whole make or in partany way advance any request or proposal to amend, directly modify or indirectly, the economic consequence waive any provision of ownership of the Preferred Shares or the Common Stock, whether any such transaction, swap or series of transactions is to be settled by delivery of securities, in cash or otherwisethis Agreement; or (xi) disclose any intention, plan or arrangement prohibited byannounce an intention to do, or inconsistent withsolicit, the foregoing assist, prompt, induce or (xii) make, or takeattempt to induce others to do, any action that would reasonably be expected to cause of the Company to make a public announcement regarding any intention of any Investor to take an action that would be actions restricted or prohibited by the foregoingunder subparagraphs (i) through (x) above; provided, however, that, notwithstanding the foregoing, in the event that there occurs (A) the foregoing shall not restrict acquisition by any Group (other than the ability Investor, its Affiliates or the Board) of 25% of any class of equity securities of the Company and such event has not been endorsed or supported by the Board within ten (10) business days of the occurrence of such event, (B) any person or Group (other than the Investor Designees or other directors appointed its Affiliates) commences a solicitation of proxies seeking to remove a majority of the Board, or elected (C) any person or Group provides notice to the Board pursuant to the terms of the Series A Certificate of Designations and the Series B Certificate of Designations from exercising their fiduciary duties. 6.2 Notwithstanding the foregoing, if the Board decides or publicly announces any intention to engage in any of the foregoing actions described in clauses (A) or (B), the Investor shall be permitted to make a process that could give rise confidential proposal to the disinterested members of the Board with respect to a change of control of the Company, the Company shall invite the Investors acting through the Investor Representative to participate transaction described in such process on the terms clause (i) or (ii) above; and conditions generally made available to the other participants in such process; provided, however, that each Investor Designee shall resign from the Board during the period in which the Investors Representative on behalf of any Investor is participating in such process; provided, further, howeverthat notwithstanding the foregoing, that, following the termination this Section 5.2 shall not prohibit or otherwise limit any actions by any Affiliate of the Investors participation in any process, the Investors’ right to nominate the Investor Designees shall be reinstated and the Company shall appoint the Investor Designees that resigned to who is a member of the Board in connection with the exercise of his or her duties as soon as reasonably possible. In addition, if requested by the Board, the Investor Representative on behalf of the Investors may submit a confidential private acquisition proposal to the Board and respond to any related inquiries from the Board, provided that any such proposal shall be conditioned on approval member of the Board.

Standstill Restrictions. 6.1 (a) Until the later of (x) time when the time that the Investors’ Ownership Percentage is Investor owns less than 32% and (y) June 23, 2012, each of the Investors Company's outstanding Common Stock on a fully-diluted basis and their respective Affiliates (including commonly controlled or managed investment funds) calculated assuming full exercise of the Warrant, neither the Investor nor any Affiliate of the Investor shall not (i) directly or indirectly acquire, agree to acquire, or offer to acquire, beneficial ownership of any equity or debt securities of the Company, any warrant or option to purchase such securities, any security convertible into any such securities, or any other right to acquire such securities, other than the Preferred Shares, shares of Common Stock issued pursuant to this Agreement or the Common Stock acquired upon conversion exercise of such Preferred Shares and any Preferred Shares the Warrant or as otherwise would not increase the Investor's beneficial ownership of the Company's Common Stock paid as dividends or as by greater than 1% on an increase of the accrued liquidation payment amount or distributions thereonas-converted basis, (ii) directly bring any action or indirectly enter into otherwise act to contest the validity of the restrictions set forth in this Section 6.7, or agree to enter into any merger, business combination, recapitalization, restructuring, change seek a release of control transaction or other extraordinary transaction involving the Company or any of its Subsidiariessuch restrictions, (iii) deposit any Common Stock in a voting trust or similar arrangement or subject any Common Stock to any voting agreement, pooling arrangement or similar arrangement, or grant any proxy with respect to any Common Stock to any person not affiliated with the Investor or Company management; (iv) make, or in any way participate or engage in, directly or indirectly, any solicitation of proxies to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company or any of Subsidiary of the Company, (iv) bring any action or otherwise act to contest the validity of the restrictions set forth in this Section 6, or seek a release of such restrictions, (v) form, join or in any way participate in a “"group” " (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any voting securities of the Company or any Subsidiary of the Company except for any group constituting solely of the Investors Investor and their respective Affiliatesany Affiliate of Investor, (vi) seek the removal of any directors from the Board or a change in the size or composition of the Board (including, without limitation, voting for any directors not nominated by the Board), except as otherwise provided in Section 2.5(b) and the Series A Certificate of Designations and the Series B Certificate of Designations6.5, (vii) propose or enter into any discussions, negotiations, arrangements, understandings or agreements (whether written or oral) with any other person regarding any possible purchase or sale of any securities or assets of the Company or any Subsidiary of the Company (other than securities owned by the Investors), (viii) call, request the calling of, or otherwise seek or assist in the calling of a special meeting of the shareholders of the Company, (ix) deposit any Preferred Shares or Common Stock in a voting trust or similar arrangement or subject any Preferred Shares or Common Stock to any voting agreement, pooling arrangement or similar arrangement, or grant any proxy with respect to any Preferred Shares or Common Stock to any person not affiliated with the Investor or Company management; (x) enter into any swap or any other agreement, transaction or series of transactions that ▇▇▇▇▇▇ or transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Preferred Shares or the Common Stock, whether any such transaction, swap or series of transactions is to be settled by delivery of securities, in cash or otherwise; (xiviii) disclose any intention, plan or arrangement prohibited by, or inconsistent with, the foregoing or (xiiix) make, or take, any action that would reasonably be expected to cause the Company to make a public announcement regarding any intention of any the Investor to take an action that would be prohibited by the foregoing; provided, however, that the foregoing shall not restrict the Investor from complying with applicable law or the ability of the Investor Designees or other directors appointed or elected to the Board pursuant to the terms of the Series A Certificate of Designations and the Series B Certificate of Designations Designee from exercising their his or her fiduciary dutiesduties or powers as directors. 6.2 Notwithstanding the foregoing, if the Board decides to engage in a process that could give rise to a change of control of the Company, the Company shall invite the Investors acting through the Investor Representative to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that each Investor Designee shall resign from the Board during the period in which the Investors Representative on behalf of any Investor is participating in such process; provided, further, however, that, following the termination of the Investors participation in any process, the Investors’ right to nominate the Investor Designees shall be reinstated and the Company shall appoint the Investor Designees that resigned to the Board as soon as reasonably possible. In addition, if requested by the Board, the Investor Representative on behalf of the Investors may submit a confidential private acquisition proposal to the Board and respond to any related inquiries from the Board, provided that any such proposal shall be conditioned on approval of the Board.