Common use of No Dilution or Impairment; No Changes in Capital Stock Clause in Contracts

No Dilution or Impairment; No Changes in Capital Stock. Without the prior written consent of the holders of a majority of the total outstanding shares of Series E-1 Preferred Stock and Series E-2 Preferred Stock combined, the Company will not, by amendment of its certificate of incorporation or through any consolidation, merger, reorganization, liquidation, sale, lease, pledge or other transfer of assets, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of the Stock Purchase Agreement, this Certificate of Designation or the Shareholders' Rights Agreement; provided, however, that the issuance of any of the following will not be considered to violate this Section 4(b): (A) Common Stock issued for consideration amounting to less than $100,000 in any single transaction, provided that the aggregate amount of all such transactions shall not exceed $500,000; (B) Common Stock to be issued upon conversion of the Company's preferred stock or other Convertible Securities; (C) the Company's Series D Convertible Preferred Stock to be issued upon conversion of the HP Convertible Note; (D) except as provided in Section 4(c), Capital Stock to be issued under any Stock Incentive Plan; (E) Capital Stock to be issued to holders of any other Convertible Securities existing as of the date of filing hereof upon conversion of all or any portion of such Convertible Securities; or (F) Series E-1 Preferred Stock and Series E-2 Preferred Stock issued during the Series E Initial Funding Period for total consideration amounting to not more than $2,000,000 to a shareholder of the Company (and/or such shareholder's Affiliates) existing as of the date of filing hereof. The Company will at all times in good faith assist in the carrying out of all such terms, and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the holders of shares of Series E-1 Preferred Stock (as such rights are set forth in the Stock Purchase Agreement, this Certificate of Designations and the Shareholders' Rights Agreement), against any dilution or other impairment. Without limiting the generality of the foregoing, without the prior written consent of the holders of a majority of the total outstanding shares of Series E-1 Preferred Stock and Series E-2 Preferred Stock combined, the Company, whether by merger, consolidation or otherwise, (i) will not authorize, create or issue any shares or class or series of equity or equity-linked security which is senior to, or pari passu with, the Series E-1 Preferred Stock as to dividend payments or other distributions or amounts payable upon a liquidation Event or otherwise (except for the issuance of shares of Series E-2 Preferred Stock), (ii) will not enter into any agreement or instrument which would restrict or otherwise materially adversely affect the ability of the Company to perform its obligations under the Stock Purchase Agreement, this Certificate of Designation or the Shareholders' Rights Agreement (provided that no written consent of holders of shares of Series E-1 Preferred Stock and/or Series E-2 Preferred Stock shall be required for the Company to enter into the HP Convertible Note or the HP Note Purchase Agreement), (iii) will not amend its certificate of incorporation or by-laws, by merger, consolidation or otherwise, in any manner which would impair or reduce the rights of the Series E-1 Preferred Stock, including, without limitation, an amendment which would alter or change the rights, privileges or preferences of the holders of the Series E-1 Preferred Stock, (iv) except as provided in Section 7 hereof, will not redeem, repurchase or otherwise acquire any shares of Capital Stock of the Company or any other rights or options to subscribe for or purchase any Capital Stock of the Company or any other Convertible Securities (other than (x) any such securities held by Hewlett-Packard or Cadwalader, Wickersham & Taft or (y) an aggregate amount of such transactions not to exceed $50,000), (v) will not approve any transaction that results in a liquidation (whether actual or deemed) pursuant to Section 3 hereof, (vi) will not approve any recapitalization of the Company's Capital Stock, and (vii) will not authorize, create or issue any shares or class or series of Capital Stock (with the exception of any shares described in clauses (A) through (F) above).

No Dilution or Impairment; No Changes in Capital Stock. Without the prior written consent of the holders of a majority of the total outstanding shares of Series E-1 Preferred Stock and Series E-2 Preferred Stock combined, the The ------------------------------------------------------ Company will not, by amendment of its certificate of incorporation or through any consolidation, merger, reorganization, liquidation, sale, lease, pledge or other transfer of assets, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of the Stock Purchase Agreement, this Certificate of Designation the Notes or the Shareholders' Rights Agreement; provided, however, that the issuance of any of the following will not be considered to violate this Section 4(b): (A) Common Stock issued for consideration amounting to less than $100,000 in any single transaction, provided that the aggregate amount of all such transactions shall not exceed $500,000; (B) Common Stock to be issued upon conversion of the Company's preferred stock or other Convertible Securities; (C) the Company's Series D Convertible Preferred Stock to be issued upon conversion of the HP Convertible Note; (D) except as provided in Section 4(c), Capital Stock to be issued under any Stock Incentive Plan; (E) Capital Stock to be issued to holders of any other Convertible Securities existing as of the date of filing hereof upon conversion of all or any portion of such Convertible Securities; or (F) Series E-1 Preferred Stock and Series E-2 Preferred Stock issued during the Series E Initial Funding Period for total consideration amounting to not more than $2,000,000 to a shareholder of the Company (and/or such shareholder's Affiliates) existing as of the date of filing hereofWarrants. The Company will at all times in good faith assist in the carrying out of all such terms, and in the taking of all such action action, as may be necessary or appropriate in order to protect the rights of the holders of shares of Series E-1 Preferred Stock Notes and Warrants (as such rights are set forth in the Stock Notes, the Warrants and the Purchase Agreement, this Certificate including without limitation Section 6 of Designations and the Shareholders' Rights Purchase Agreement), ) against any dilution or other impairment. Without limiting the generality of the foregoing, without the prior written consent of the holders of a majority of the total outstanding shares of Series E-1 Preferred Stock and Series E-2 Preferred Stock combined, the Company, whether by merger, consolidation or otherwise, Company (ia) will not authorize, create or issue any shares or class or series of equity or equity-linked security which is senior to, or pari passu with, permit the Series E-1 Preferred Stock as to dividend payments or other distributions or amounts payable upon a liquidation Event or otherwise (except for the issuance of shares of Series E-2 Preferred Stock), (ii) will not enter into any agreement or instrument which would restrict or otherwise materially adversely affect the ability of the Company to perform its obligations under the Stock Purchase Agreement, this Certificate of Designation par value or the Shareholders' Rights Agreement (provided that no written consent determined or stated value of holders of shares of Series E-1 Preferred Stock and/or Series E-2 Preferred Stock shall be required for the Company to enter into the HP Convertible Note or the HP Note Purchase Agreement), (iii) will not amend its certificate of incorporation or by-laws, by merger, consolidation or otherwise, in any manner which would impair or reduce the rights of the Series E-1 Preferred Stock, including, without limitation, an amendment which would alter or change the rights, privileges or preferences of the holders of the Series E-1 Preferred Stock, (iv) except as provided in Section 7 hereof, will not redeem, repurchase or otherwise acquire any shares of Capital Common Stock receivable upon the conversion of the Company Notes or any other rights or options to subscribe for or purchase any Capital Stock exercise of the Company or any other Convertible Securities (other than (x) any such securities held by Hewlett-Packard or Cadwalader, Wickersham & Taft or (y) an aggregate amount of such transactions not Warrants to exceed $50,000)the amount payable therefor upon such conversion or exercise, (vb) will not approve any transaction take all such action as may be necessary or appropriate in order that results in a liquidation (whether actual or deemed) pursuant to Section 3 hereof, (vi) will not approve any recapitalization the Company may validly and legally issue fully paid and nonassessable shares of the Company's Capital StockCommon Stock free from all taxes, Liens and charges with respect to the issue thereof, upon the conversion of the Notes from time to time outstanding, (viic) will not authorizetake any action which results in any adjustment of the current conversion price under the Purchase Agreement or exercise price under the Warrants if the total number of shares of the Company's Common Stock (or other securities), create issuable after the action upon the conversion of all of the then outstanding Notes and exercise of all of the then outstanding Warrants would exceed the total number of shares of Common Stock (or other securities) then authorized by the Company's certificate of incorporation and available for the purpose of issuance upon such conversion and exercise and (d) will not have any authorized Common Stock (and will not issue any Common Stock) other than its existing authorized Common Stock, except that the Company may increase the number of such authorized shares or class or series of Capital its Common Stock (with as long as such additional shares have the exception same terms as those shares authorized as of any shares described in clauses (A) through (F) above)the date hereof.

No Dilution or Impairment; No Changes in Capital Stock. Without the prior written consent of the holders of a majority of the total outstanding shares of Series E-1 Preferred Stock and Series E-2 Preferred Stock combined, the Company will not, by amendment of its certificate of incorporation or through any consolidation, merger, reorganization, liquidation, sale, lease, pledge or other transfer of assets, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of the Stock Purchase Agreement, this Certificate of Designation or the Shareholders' Rights Agreement; provided, however, that the issuance of any of the following will not be considered to violate this Section 4(b): (A) Common Stock issued for consideration amounting to less than $100,000 in any single transaction, provided that the aggregate amount of all such transactions shall not exceed $500,000; (B) Common Stock to be issued upon conversion of the Company's preferred stock or other Convertible Securities; (C) the Company's Series D Convertible Preferred Stock to be issued upon conversion of the HP Convertible Note; (D) except as provided in Section 4(c), Capital Stock to be issued under any Stock Incentive Plan; (E) Capital Stock to be issued to holders of any other Convertible Securities existing as of the date of filing hereof upon conversion of all or any portion of such Convertible Securities; or (F) Series E-1 Preferred Stock and Series E-2 Preferred Stock issued during the Series E Initial Funding Period for total consideration amounting to not more than $2,000,000 to a shareholder of the Company (and/or such shareholder's Affiliates) existing as of the date of filing hereof. The Company will at all times in good faith assist in the carrying out of all such terms, and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the holders of shares of Series E-1 E-2 Preferred Stock (as such rights are set forth in the Stock Purchase Agreement, this Certificate of Designations and the Shareholders' Rights Agreement), against any dilution or other impairment. Without limiting the generality of the foregoing, without the prior written consent of the holders of a majority of the total outstanding shares of Series E-1 Preferred Stock and the Series E-2 Preferred Stock combined, the Company, whether by merger, consolidation or otherwise, (i) will not authorize, create or issue any shares or class or series of equity or equity-linked security which is senior to, or pari passu with, the Series E-1 E-2 Preferred Stock as to dividend payments or other distributions or amounts payable upon a liquidation Liquidation Event or otherwise (except for the issuance of shares of Series E-2 E-1 Preferred Stock), (ii) will not enter into any agreement or instrument which would restrict or otherwise materially adversely affect the ability of the Company to perform its obligations under the Stock Purchase Agreement, this Certificate of Designation or the Shareholders' Rights Agreement (provided that no written consent of holders of shares of Series E-1 Preferred Stock and/or Series E-2 Preferred Stock shall be required for the file Company to enter into the HP Convertible Note or the HP Note Purchase Agreement), (iii) will not amend its certificate of incorporation or by-laws, by merger, consolidation or otherwise, in any manner which would impair or reduce the rights of the Series E-1 E-2 Preferred Stock, including, without limitation, an amendment which would alter or change the rights, privileges or preferences of the holders of the Series E-1 E-2 Preferred Stock, (iv) except as provided in Section 7 hereof, will not redeem, repurchase or otherwise acquire any shares of Capital Stock of the Company or any other rights or options to subscribe for or purchase any Capital Stock of the Company or any other Convertible Securities (other than (x) any such securities held by Hewlett-Packard or Cadwalader, Wickersham & Taft or (y) an aggregate amount of such transactions not to exceed $50,000), (v) will not approve any transaction that results in a liquidation (whether actual or deemed) pursuant to Section 3 hereof, ; (vi) will not approve any recapitalization of the Company's Capital Stock, and (vii) will not authorize, create or issue any shares or class or series of Capital Stock (with the exception of any shares described in clauses (A) through (F) above).

No Dilution or Impairment; No Changes in Capital Stock. Without the prior written consent of the holders of a majority of the total outstanding shares of Series E-1 Preferred Stock and Series E-2 Preferred Stock combined, the The Company will not, by amendment of its certificate of incorporation or through any consolidation, merger, reorganization, liquidation, sale, lease, pledge or other transfer of assets, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of the Stock Purchase AgreementRecapitalization Agreements, this the Certificate of Designation Designations, the Registration Rights Agreement or the Shareholders' Rights Agreement; provided, however, Stockholders’ Agreement (it being understood that the issuance of any of the following Company will not be considered to violate this Section 4(b): (A) Common Stock issued for consideration amounting to less than $100,000 in any single transaction, provided prohibited from taking actions that are permitted by the aggregate amount of all such transactions shall not exceed $500,000; (B) Common Stock to be issued upon conversion of the Company's preferred stock or other Convertible Securities; (C) the Company's Series D Convertible Preferred Stock to be issued upon conversion of the HP Convertible Note; (D) except as provided in Section 4(c), Capital Stock to be issued under any Stock Incentive Plan; (E) Capital Stock to be issued to holders of any other Convertible Securities existing as of the date of filing hereof upon conversion of all or any portion terms of such Convertible Securities; or (F) Series E-1 Preferred Stock and Series E-2 Preferred Stock issued during the Series E Initial Funding Period for total consideration amounting to not more than $2,000,000 to a shareholder of the Company (and/or such shareholder's Affiliates) existing as of the date of filing hereofagreements). The Company will at all times in good faith assist in the carrying out of all such terms, and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the holders of shares of Series E-1 Preferred Stock (as such rights are set forth in the Stock Purchase Agreement, this Certificate of Designations and the Shareholders' Rights Agreement), against any dilution or other impairment. Without limiting the generality of the foregoing, without the prior written consent of the holders of a majority of the total outstanding shares of Series E-1 Preferred Stock and Series E-2 Preferred Stock combined, the Company, whether by merger, consolidation or otherwise, (ia) will not authorize, create or issue any shares or class or series of equity or equity-linked security security, which is senior to, or pari passu with, the Series E-1 B Convertible Preferred Stock as to dividend payments or other distributions or amounts payable upon a in the event of liquidation Event or otherwise (except for winding-up of the issuance of Company other than any additional shares of Series E-2 A Preferred Stock), (ii) will not enter into Stock issued as dividends on the Series A Preferred Stock and any agreement or instrument which would restrict or otherwise materially adversely affect the ability of the Company to perform its obligations under the Stock Purchase Agreement, this Certificate of Designation or the Shareholders' Rights Agreement (provided that no written consent of holders of additional shares of Series E-1 B Preferred Stock and/or Series E-2 Preferred Stock shall be required for the Company to enter into the HP Convertible Note or the HP Note Purchase Agreement), (iii) will not amend its certificate of incorporation or by-laws, by merger, consolidation or otherwise, in any manner which would impair or reduce the rights of issued as dividends on the Series E-1 Preferred Stock, including, without limitation, an amendment which would alter or change the rights, privileges or preferences of the holders of the Series E-1 B Preferred Stock, (ivb) except as provided otherwise contemplated by the TransMontaigne Inc. Certificate of Designations of Series A Convertible Preferred Stock as in Section 7 existence on the date hereof, the Certificate of Designations, the Warrant Agreement or this Agreement, will not redeem, repurchase or otherwise acquire acquire, either directly or indirectly through any of its Subsidiaries, any shares of Capital Stock capital stock of the Company Company, or any other rights or options to subscribe for or purchase any Capital Stock capital stock of the Company or any other Convertible Securities (other than (x) any such securities held by Hewlett-Packard or Cadwalader, Wickersham & Taft or (y) an aggregate amount of such transactions not to exceed $50,000)Company, (vc) will not approve permit the par value or the determined or stated value of any transaction that results in a liquidation (whether actual or deemed) pursuant shares of Common Stock receivable upon the conversion of the Shares to Section 3 hereofexceed the amount payable therefor upon such conversion, (vid) will take all such action within its control as may be necessary or appropriate in order that the Company may at all times validly and legally issue duly authorized, fully paid and non-assessable shares of the Common Stock free from all taxes, Liens and charges with respect to the issue thereof, upon the conversion of the Shares from time to time outstanding, (e) will not approve take any recapitalization action which results in any adjustment of the current conversion price under the Certificate of Designations if the total number of shares of the Common Stock (or other securities) issuable after the action upon the conversion of all of the then outstanding Shares would exceed the total number of shares of Common Stock (or other securities) then authorized by the Company's Capital Stock, ’s certificate of incorporation and available for the purpose of issuance upon such conversion or exercise and (viif) will not authorize, create or have any authorized Common Stock (and will not issue any Common Stock) other than its existing authorized Common Stock, par value per $.01 share; provided, however, that nothing herein shall be deemed to require the Company to obtain consent from holders of the Series B Preferred Stock in connection with any repurchase by the Company of shares or class or series of Capital Common Stock (with the exception of any shares described owned by First Reserve Fund VI, Limited Partnership, as contemplated in clauses (A) through (F) aboveSection 8.12(f).

No Dilution or Impairment; No Changes in Capital Stock. Without the prior written consent of the holders of a majority of the total outstanding shares of Series E-1 Preferred Stock and Series E-2 Preferred Stock combined, the The Company will not, by amendment of its certificate of incorporation or through any consolidation, merger, reorganization, liquidation, sale, lease, pledge or other transfer of assets, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of the Stock Purchase Agreement, this Agreements or the Series B Certificate of Designation or the Shareholders' Rights Agreement; provided, however, that the issuance of any of the following will not be considered to violate this Section 4(b): (A) Common Stock issued for consideration amounting to less than $100,000 in any single transaction, provided that the aggregate amount of all such transactions shall not exceed $500,000; (B) Common Stock to be issued upon conversion of the Company's preferred stock or other Convertible Securities; (C) the Company's Series D Convertible Preferred Stock to be issued upon conversion of the HP Convertible Note; (D) except as provided in Section 4(c), Capital Stock to be issued under any Stock Incentive Plan; (E) Capital Stock to be issued to holders of any other Convertible Securities existing as of the date of filing hereof upon conversion of all or any portion of such Convertible Securities; or (F) Series E-1 Preferred Stock and Series E-2 Preferred Stock issued during the Series E Initial Funding Period for total consideration amounting to not more than $2,000,000 to a shareholder of the Company (and/or such shareholder's Affiliates) existing as of the date of filing hereofDesignations. The Company will at all times in good faith assist in the carrying out of all such terms, and in the taking of all such action action, as may be necessary or appropriate in order to protect the rights of the holders of shares of Series E-1 Preferred Stock Shares (as such rights are set forth in the Stock Purchase Agreement, this Agreements and the Series B Certificate of Designations and the Shareholders' Rights Agreement), Designations) against any dilution or other impairment. Without limiting the generality of the foregoing, without the prior written consent of the holders of a majority of the total outstanding shares of Series E-1 Preferred Stock and Series E-2 Preferred Stock combined, the Company, whether by merger, consolidation or otherwise, Company (ia) will not authorize, create permit the par value or issue the determined or stated value of any shares of the Company's Common Stock receivable upon the conversion of the Shares to exceed the amount payable therefor upon such conversion, (b) will take all such action as may be necessary or class or series appropriate in order that the Company may validly and legally issue fully paid and non-assessable shares of equity or equity-linked security the Company's Common Stock free from all taxes, Liens and charges with respect to the issue thereof, upon the conversion of the Shares from time to time outstanding, (c) will not take any action which is senior to, or pari passu with, results in any adjustment of the Conversion Price under the Series E-1 Preferred Stock as to dividend payments or other distributions or amounts payable upon a liquidation Event or otherwise (except for B Certificate of Designations if the issuance total number of shares of Series E-2 Preferred Stock)the Company's Common Stock (or other securities) issuable after the action upon the conversion of all of the then outstanding Shares would exceed the total number of shares of the Company's Common Stock (or other securities) then authorized by the Company's certificate of incorporation and available for the purpose of issuance upon such conversion, (iid) will not enter into have any agreement or instrument which would restrict or otherwise materially adversely affect the ability of the Company to perform authorized Common Stock other than its obligations under the Stock Purchase Agreement, this Certificate of Designation or the Shareholders' Rights Agreement (provided that no written consent of holders of shares of Series E-1 Preferred Stock and/or Series E-2 Preferred Stock shall be required for the Company to enter into the HP Convertible Note or the HP Note Purchase Agreement)existing authorized Common Stock, (iiie) will not amend its certificate of incorporation or by-lawsto change any terms of its Common Stock, by merger, consolidation or otherwise, (f) will not amend its certificate of incorporation in any manner which would impair or reduce the rights of the Series E-1 Preferred Stock, including, without limitation, an amendment which would to alter or change the rightspowers, privileges or preferences of the holders of the Series E-1 B Preferred Stock (including without limitation changing the Series B Certificate of Designations after any Shares have been called for redemption), (g) will not create or authorize the creation of any additional class or series of shares of capital stock unless the same ranks junior to the Series B Preferred Stock as to the payment of dividends or the distribution of assets on the liquidation, dissolution or winding up of the Company, or increase the authorized amount of the Series B Preferred Stock, or increase the authorized amount of any additional class or series of shares of stock unless the same ranks junior to the Series B Preferred Stock as to the payment of dividends or the distribution of assets on the liquidation, dissolution or winding up of the Company, or create or authorize any obligation or security convertible into shares of Series B Preferred Stock or into shares of any other class or series of stock unless the same ranks junior to the Series B Preferred Stock as to the payment of dividends or the distribution of assets on the liquidation, dissolution or winding up of the Company, whether any such creation, authorization or increase shall be by means of amendment to the certificate of incorporation or by merger, consolidation or otherwise and (ivh) except as provided in Section 7 after the date hereof, will not redeemcreate or establish (or make any grants or awards under) any phantom stock, repurchase stock appreciation rights or other equity equivalent plan for employees, officers, directors, agents or consultants of the Company (unless such plans in the aggregate relate to the equivalent of less than 5% of the Common Stock of the Company) whereby the Company or any Subsidiary agrees to pay any Person a percentage of, or an amount otherwise acquire any shares of Capital Stock determined by reference to, the earnings of the Company or any other rights Subsidiary, the value of their stock or options to subscribe for the proceeds from a sale of their stock or purchase any Capital Stock of the Company or any other Convertible Securities (other than (x) any such securities held by Hewlett-Packard or Cadwalader, Wickersham & Taft or (y) an aggregate amount of such transactions not to exceed $50,000), (v) will not approve any transaction that results in a liquidation (whether actual or deemed) pursuant to Section 3 hereof, (vi) will not approve any recapitalization of the Company's Capital Stock, and (vii) will not authorize, create or issue any shares or class or series of Capital Stock (with the exception of any shares described in clauses (A) through (F) above)upon their liquidation.

No Dilution or Impairment; No Changes in Capital Stock. Without the prior written consent of the holders of a majority of the total outstanding shares of Series E-1 Preferred Stock and Series E-2 Preferred Stock combined, the The Company will not, by amendment of its certificate of incorporation or through any consolidation, merger, reorganization, liquidation, sale, lease, pledge or other transfer of assets, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of the Stock Purchase Agreement, this Agreements or the Series B Certificate of Designation or the Shareholders' Rights Agreement; provided, however, that the issuance of any of the following will not be considered to violate this Section 4(b): (A) Common Stock issued for consideration amounting to less than $100,000 in any single transaction, provided that the aggregate amount of all such transactions shall not exceed $500,000; (B) Common Stock to be issued upon conversion of the Company's preferred stock or other Convertible Securities; (C) the Company's Series D Convertible Preferred Stock to be issued upon conversion of the HP Convertible Note; (D) except as provided in Section 4(c), Capital Stock to be issued under any Stock Incentive Plan; (E) Capital Stock to be issued to holders of any other Convertible Securities existing as of the date of filing hereof upon conversion of all or any portion of such Convertible Securities; or (F) Series E-1 Preferred Stock and Series E-2 Preferred Stock issued during the Series E Initial Funding Period for total consideration amounting to not more than $2,000,000 to a shareholder of the Company (and/or such shareholder's Affiliates) existing as of the date of filing hereofDesignations. The Company will at all times in good faith assist in the carrying out of all such terms, and in the taking of all such action action, as may be necessary or appropriate in order to protect the rights of the holders of shares of Series E-1 Preferred Stock Shares (as such rights are set forth in the Stock Purchase Agreement, this Agreements and the Series B Certificate of Designations and the Shareholders' Rights Agreement), Designations) against any dilution or other impairment. Without limiting the generality of the foregoing, without the prior written consent of the holders of a majority of the total outstanding shares of Series E-1 Preferred Stock and Series E-2 Preferred Stock combined, the Company, whether by merger, consolidation or otherwise, Company (ia) will not authorize, create permit the par value or issue the determined or stated value of any shares of the Company's Common Stock receivable upon the conversion of the Shares to exceed the amount payable therefor upon such conversion, (b) will take all such action as may be necessary or class or series appropriate in order that the Company may validly and legally issue fully paid and non- assessable shares of equity or equity-linked security the Company's Common Stock free from all taxes, Liens and charges with respect to the issue thereof, upon the conversion of the Shares from time to time outstanding, (c) will not take any action which is senior to, or pari passu with, results in any adjustment of the Conversion Price under the Series E-1 Preferred Stock as to dividend payments or other distributions or amounts payable upon a liquidation Event or otherwise (except for B Certificate of Designations if the issuance total number of shares of Series E-2 Preferred Stock)the Company's Common Stock (or other securities) issuable after the action upon the conversion of all of the then outstanding Shares would exceed the total number of shares of the Company's Common Stock (or other securities) then authorized by the Company's certificate of incorporation and available for the purpose of issuance upon such conversion, (iid) will not enter into have any agreement or instrument which would restrict or otherwise materially adversely affect the ability of the Company to perform authorized Common Stock other than its obligations under the Stock Purchase Agreement, this Certificate of Designation or the Shareholders' Rights Agreement (provided that no written consent of holders of shares of Series E-1 Preferred Stock and/or Series E-2 Preferred Stock shall be required for the Company to enter into the HP Convertible Note or the HP Note Purchase Agreement)existing authorized Common Stock, (iiie) will not amend its certificate of incorporation or by-lawsto change any terms of its Common Stock, by merger, consolidation or otherwise, (f) will not amend its certificate of incorporation in any manner which would impair or reduce the rights of the Series E-1 Preferred Stock, including, without limitation, an amendment which would to alter or change the rightspowers, privileges or preferences of the holders of the Series E-1 B Preferred Stock (including without limitation changing the Series B Certificate of Designations after any Shares have been called for redemption), (g) will not create or authorize the creation of any additional class or series of shares of capital stock unless the same ranks junior to the Series B Preferred Stock as to the payment of dividends or the distribution of assets on the liquidation, dissolution or winding up of the Company, or increase the authorized amount of the Series B Preferred Stock, or increase the authorized amount of any additional class or series of shares of stock unless the same ranks junior to the Series B Preferred Stock as to the payment of dividends or the distribution of assets on the liquidation, dissolution or winding up of the Company, or create or authorize any obligation or security convertible into shares of Series B Preferred Stock or into shares of any other class or series of stock unless the same ranks junior to the Series B Preferred Stock as to the payment of dividends or the distribution of assets on the liquidation, dissolution or winding up of the Company, whether any such creation, authorization or increase shall be by means of amendment to the certificate of incorporation or by merger, consolidation or otherwise and (ivh) except as provided in Section 7 after the date hereof, will not redeemcreate or establish (or make any grants or awards under) any phantom stock, repurchase stock appreciation rights or other equity equivalent plan for employees, officers, directors, agents or consultants of the Company (unless such plans in the aggregate relate to the equivalent of less than 5% of the Common Stock of the Company) whereby the Company or any Subsidiary agrees to pay any Person a percentage of, or an amount otherwise acquire any shares of Capital Stock determined by reference to, the earnings of the Company or any other rights Subsidiary, the value of their stock or options to subscribe for the proceeds from a sale of their stock or purchase any Capital Stock of the Company or any other Convertible Securities (other than (x) any such securities held by Hewlett-Packard or Cadwalader, Wickersham & Taft or (y) an aggregate amount of such transactions not to exceed $50,000), (v) will not approve any transaction that results in a liquidation (whether actual or deemed) pursuant to Section 3 hereof, (vi) will not approve any recapitalization of the Company's Capital Stock, and (vii) will not authorize, create or issue any shares or class or series of Capital Stock (with the exception of any shares described in clauses (A) through (F) above)upon their liquidation.

No Dilution or Impairment; No Changes in Capital Stock. Without the prior written consent of the holders of a majority of the total outstanding shares of Series E-1 Preferred Stock and Series E-2 Preferred Stock combined, the The Company will not, by amendment of its certificate of incorporation or through any consolidation, merger, reorganization, liquidation, sale, lease, pledge or other transfer of assets, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of the Stock Purchase Agreement, this Exchange Agreements or the Series B Certificate of Designation or the Shareholders' Rights Agreement; provided, however, that the issuance of any of the following will not be considered to violate this Section 4(b): (A) Common Stock issued for consideration amounting to less than $100,000 in any single transaction, provided that the aggregate amount of all such transactions shall not exceed $500,000; (B) Common Stock to be issued upon conversion of the Company's preferred stock or other Convertible Securities; (C) the Company's Series D Convertible Preferred Stock to be issued upon conversion of the HP Convertible Note; (D) except as provided in Section 4(c), Capital Stock to be issued under any Stock Incentive Plan; (E) Capital Stock to be issued to holders of any other Convertible Securities existing as of the date of filing hereof upon conversion of all or any portion of such Convertible Securities; or (F) Series E-1 Preferred Stock and Series E-2 Preferred Stock issued during the Series E Initial Funding Period for total consideration amounting to not more than $2,000,000 to a shareholder of the Company (and/or such shareholder's Affiliates) existing as of the date of filing hereofDesignations. The Company will at all times in good faith assist in the carrying out of all such terms, and in the taking of all such action action, as may be necessary or appropriate in order to protect the rights of the holders of shares of Series E-1 Preferred Stock Shares (as such rights are set forth in the Stock Purchase Agreement, this Exchange Agreements and the Series B Certificate of Designations and the Shareholders' Rights Agreement), Designations) against any dilution or other impairment. Without limiting the generality of the foregoing, without the prior written consent of the holders of a majority of the total outstanding shares of Series E-1 Preferred Stock and Series E-2 Preferred Stock combined, the Company, whether by merger, consolidation or otherwise, Company (ia) will not authorize, create permit the par value or issue the determined or stated value of any shares of the Company's Common Stock receivable upon the conversion of the Shares to exceed the amount payable therefor upon such conversion, (b) will take all such action as may be necessary or class or series appropriate in order that the Company may validly and legally issue fully paid and non- assessable shares of equity or equity-linked security the Company's Common Stock free from all taxes, Liens and charges with respect to the issue thereof, upon the conversion of the Shares from time to time outstanding, (c) will not take any action which is senior to, or pari passu with, results in any adjustment of the Conversion Price under the Series E-1 Preferred Stock as to dividend payments or other distributions or amounts payable upon a liquidation Event or otherwise (except for B Certificate of Designations if the issuance total number of shares of Series E-2 Preferred Stock)the Company's Common Stock (or other securities) issuable after the action upon the conversion of all of the then outstanding Shares would exceed the total number of shares of the Company's Common Stock (or other securities) then authorized by the Company's certificate of incorporation and available for the purpose of issuance upon such conversion, (iid) will not enter into have any agreement or instrument which would restrict or otherwise materially adversely affect the ability of the Company to perform authorized Common Stock other than its obligations under the Stock Purchase Agreement, this Certificate of Designation or the Shareholders' Rights Agreement (provided that no written consent of holders of shares of Series E-1 Preferred Stock and/or Series E-2 Preferred Stock shall be required for the Company to enter into the HP Convertible Note or the HP Note Purchase Agreement)existing authorized Common Stock, (iiie) will not amend its certificate of incorporation or by-lawsto change any terms of its Common Stock, by merger, consolidation or otherwise, (f) will not amend its certificate of incorporation in any manner which would impair or reduce the rights of the Series E-1 Preferred Stock, including, without limitation, an amendment which would to alter or change the rightspowers, privileges or preferences of the holders of the Series E-1 B Preferred Stock (including without limitation changing the Series B Certificate of Designations after any Shares have been called for redemption), (g) will not create or authorize the creation of any additional class or series of shares of capital stock unless the same ranks junior to the Series B Preferred Stock as to the payment of dividends or the distribution of assets on the liquidation, dissolution or winding up of the Company, or increase the authorized amount of the Series B Preferred Stock, or increase the authorized amount of any additional class or series of shares of stock unless the same ranks junior to the Series B Preferred Stock as to the payment of dividends or the distribution of assets on the liquidation, dissolution or winding up of the Company, or create or authorize any obligation or security convertible into shares of Series B Preferred Stock or into shares of any other class or series of stock unless the same ranks junior to the Series B Preferred Stock as to the payment of dividends or the distribution of assets on the liquidation, dissolution or winding up of the Company, whether any such creation, authorization or increase shall be by means of amendment to the certificate of incorporation or by merger, consolidation or otherwise and (ivh) except as provided in Section 7 after the date hereof, will not redeemcreate or establish (or make any grants or awards under) any phantom stock, repurchase stock appreciation rights or other equity equivalent plan for employees, officers, directors, agents or consultants of the Company (unless such plans in the aggregate relate to the equivalent of less than 5% of the Common Stock of the Company) whereby the Company or any Subsidiary agrees to pay any Person a percentage of, or an amount otherwise acquire any shares of Capital Stock determined by reference to, the earnings of the Company or any other rights Subsidiary, the value of their stock or options to subscribe for the proceeds from a sale of their stock or purchase any Capital Stock of the Company or any other Convertible Securities (other than (x) any such securities held by Hewlett-Packard or Cadwalader, Wickersham & Taft or (y) an aggregate amount of such transactions not to exceed $50,000), (v) will not approve any transaction that results in a liquidation (whether actual or deemed) pursuant to Section 3 hereof, (vi) will not approve any recapitalization of the Company's Capital Stock, and (vii) will not authorize, create or issue any shares or class or series of Capital Stock (with the exception of any shares described in clauses (A) through (F) above)upon their liquidation.