Common use of Restrictions on Transfer of Capital Stock Clause in Contracts

Restrictions on Transfer of Capital Stock. (a) The Purchaser shall not transfer, sell, assign, or pledge to any Person other than a Carlyle Affiliate, or dispose of, any interest in any shares of the Series B Preferred Stock without the prior approval of the Board of Directors, in its sole discretion. The Purchaser shall not transfer, sell or assign to a Carlyle Affiliate, any interest in any shares of the Series B Preferred Stock if such Carlyle Affiliate is engaged in the Business. (b) After the Closing Date and before the earlier to occur of April 14, 1999 and a Type B Event Date, the Purchaser shall not transfer, sell or assign to any Person any of the Series D Preferred Stock, Series B Conversion Shares or Series D Conversion Shares without the prior approval of an ordinary majority of the Board of Directors in its sole discretion, other than in the following circumstances: (i) A transfer to a Carlyle Affiliate (provided that prior to any such transfer such Carlyle Affiliate shall have delivered to the Company its written agreement to be bound by the terms of this Section 6.14); (ii) A transfer permitted under Rule 144 under the Securities Act; (iii) A transfer pursuant to a registered offering under registration rights from the Company as provided in the Registration Rights Agreement; or (iv) A transfer pursuant to a transaction available to all stockholders of the Company on the same terms as to the Purchaser, which has been approved by a majority of the Board of Directors; (c) If a Type B Event Date occurs prior to April 14, 1999, then from the Type B Event Date until the second subsequent annual meeting of stockholders of the Company after such Type B Event Date, (A) the Purchaser shall not make a transfer of any of its Series D Preferred Stock, Series B Conversion Shares or Series D Conversion Shares in a transaction available to all holders of Common Stock on the same terms as to the Purchaser, unless such transaction has been approved either by (I) the affirmative vote of not less than 80 percent of the outstanding shares of the Company entitled to vote, or (II) at least two-thirds (2/3) of the directors of the Company (which must include either (i) the Joint Director if either (x) such Joint Director served in such position as of the Type B Event Date, or (y) such Joint Director has been approved by a majority of directors who were Common Stock Directors as of the Type B Event Date, or (ii) at least one director who was a Common Stock Director prior to the Type B Event Date, unless neither such Joint Director, nor any of such Common Stock Directors continue to serve on the Board of Directors at such time) and (B) the Purchaser shall not make a transfer of any of its Series D Preferred Stock, Series B Conversion Shares or Series D Conversion Shares in a transaction other than one available to all holders of Common Stock on the same terms as to the Purchaser, unless such transaction has been approved either by (I) the affirmative vote of not less than 80 percent of the outstanding shares of the Company entitled to vote, or (II) at least 50 percent of the directors of the Company who are not the Preferred Stock Directors or the Conversion Directors. If a Type B Event Date occurs prior to October 14, 1999, then from the Type B Event Date until the second subsequent annual meeting of stockholders of the Company after such Type B Event Date, none of the following actions or transactions shall be effected by the Company or approved by the Company as a stockholder of any subsidiary of the Company, and neither the Purchaser nor any other holder of Series D Preferred Stock (other than a holder pursuant to a transfer permitted in paragraphs (b)(ii) or (b)(iii) of this Section 6.14) shall engage in, or be a party to, any of the following actions or transactions involving the Company or any subsidiary of the Company, if, as of the record date for the determination of the stockholders entitled to vote thereon, or consent thereto, any other corporation, person or entity referred to in clauses (i) through (iv) of this sentence beneficially owns or controls, directly or indirectly, five percent (5%) or more of the outstanding shares of the Company entitled to vote: (i) any merger or consolidation of the Company or any of its subsidiaries with or into such other corporation, person or entity; or (ii) any sale, lease, exchange or other disposition of all or any substantial part of the assets of the Company or any of its subsidiaries to, or with, such other corporation, person or entity; or (iii) the issuance or delivery of any voting securities of the Company or any of its subsidiaries to such other corporation, person or entity in exchange for cash, other assets or securities, or a combination thereof; or (iv) any dissolution or liquidation of the Company; PROVIDED, HOWEVER, that the prohibitions contained in this sentence shall not apply with respect to any such action or transaction approved by (I) the affirmative vote of not less than 80 percent of the outstanding shares of the Company entitled to vote or (II) at least two-thirds (2/3) of the directors of the Company (which must include either the Joint Director if either (x) such Joint Director served in such position as of the Type B Event Date, or (y) such Joint Director has been approved by a majority of directors who were Common Stock Directors as of Type B Event Date, or at least one director who was a Common Stock Director prior to the Type B Event Date, unless neither such Joint Director, nor any of such Common Stock Directors continue to serve on the Board of Directors at such time). For purposes of the immediately preceding sentence, a Person shall be deemed to own or control directly or indirectly, any outstanding shares of stock of the Company (A) which it has the right to acquire pursuant to any agreement, or upon the exercise of, conversion rights, warrants, options or otherwise or (B) which are beneficially owned, directly or indirectly (including shares deemed owned through application of clause (A) above) by any other corporation, person or other entity (x) with which it or its "affiliate" or "associate," (as defined below) has any agreement, arrangement, or understanding for the purpose of acquiring, holding, voting or disposing of stock of the Company or (y) which is its "affiliate" or "associate" as those terms are defined under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. No transfer of Series B Preferred Stock or Series B Conversion Shares may be made by Purchaser or any Carlyle Affiliate (other than a transfer described in paragraph (b)(ii) or (b)(iii) of this Section 6.14), unless prior thereto, the transferee in such transfer shall have entered into an agreement in form and substance reasonably satisfactory to the Company, agreeing to be bound by the terms of this Section 6.14(c). Notwithstanding anything to the contrary contained in this Section 6.14(c), the Purchaser shall not need any approval by any directors, the Board of Directors or any stockholders under this Section 6.14 in order to transfer, sell or assign any of its Series B Conversion Shares in the circumstances and the persons set forth in clauses (i), (ii) and (iii) of Section 6.14(b). (d) The Warrants and the Warrant Shares shall be transferable by the Purchaser, subject to compliance with federal and state securities laws, without the approval of the Board of Directors. (e) Except in the case of a transfer pursuant to Rule 144 promulgated pursuant to the Securities Act, or any successor rule, prior to consummating any private sale or transfer of Common Stock to any Person other than a Carlyle Affiliate, the Purchaser shall provide to the Company the written opinion of reputable legal counsel in form reasonably acceptable to the Company that such sale or transfer is being made in compliance with applicable federal securities laws.

Restrictions on Transfer of Capital Stock. (a) The Purchaser shall not transfer, sell, assign, or pledge to any Person other than a Carlyle Affiliatean Affiliate of the Purchaser, or dispose of, any interest in any shares of the Series B C Preferred Stock without the prior approval of the Board of Directors, in its sole discretion. The Purchaser shall not transfer, sell or assign to a Carlyle Affiliateany Affiliate of the Purchaser, any interest in any shares of the Series B C Preferred Stock if such Carlyle Affiliate is engaged in the Business. (b) After the Closing Date and before the earlier to occur of April 14, 1999 and a Type B Event DateEvent, the Purchaser shall not transfer, sell or assign to any Person any of the Series D Preferred Stock, Series B Conversion Shares or Series D C Conversion Shares without the prior approval of an ordinary majority of the Board of Directors in its sole discretion, other than in the following circumstances: (i) A transfer to a Carlyle an Affiliate of the Purchaser (provided that prior to any such transfer such Carlyle Affiliate shall have delivered to the Company its written agreement to be bound by the terms of this Section 6.14); (ii) A transfer permitted under Rule 144 under the Securities Act; (iii) A transfer pursuant to a registered offering under registration rights from the Company as provided in the Registration Rights Agreement; or (iv) A transfer pursuant to a transaction available to all stockholders of the Company on the same terms as to the Purchaser, which has been approved by a majority of the Board of Directors; (c) If a Type B Event Date occurs prior to April 14, 1999, then from the Type B Event Date until the second subsequent annual meeting of stockholders of the Company after such Type B Event Date, (A) the Purchaser shall not make a transfer of any of its Series D Preferred Stock, Series B C Conversion Shares or Series D Conversion Shares in a transaction available to all holders of Common Stock on the same terms as to the Purchaser, unless such transaction has been approved either by (I) the affirmative vote of not less than 80 percent of the outstanding shares of the Company entitled to vote, or (II) at least two-thirds (2/3) of the directors of the Company (which must include either (i) the Joint Director Director, if either (x) such Joint Director served in such position as of the Type B Event Date, or (y) such Joint Director has been approved by a majority of the directors who were Common Stock Directors as of the Type B Event Date, or (ii) at least one director who was a Common Stock Director prior to the Type B Event Date, unless neither such Joint Director, nor any of such Common Stock Directors continue to serve on the Board of Directors at such time) and (B) the Purchaser shall not make a transfer of any of its Series D Preferred Stock, Series B C Conversion Shares or Series D Conversion Shares in a transaction other than one available to all holders of Common Stock on the same terms as to the Purchaser, unless such transaction has been approved either by (I) the affirmative vote of not less than 80 percent of the outstanding shares of the Company entitled to vote, or (II) at least 50 percent of the directors of the Company who are not the Preferred Stock Directors or the Conversion Directors. If a Type B Event Date occurs prior to October 14, 1999, then from the Type B Event Date until the second subsequent annual meeting of stockholders of the Company after such Type B Event Date, none of the following actions or transactions shall be effected by the Company or approved by the Company as a stockholder of any subsidiary of the Company, and neither the Purchaser nor any other holder of Series D Preferred Stock (other than a holder pursuant to a transfer permitted in paragraphs (b)(ii) or (b)(iii) of this Section 6.14) shall engage in, or be a party to, any of the following actions or transactions involving the Company or any subsidiary of the Company, if, as of the record date for the determination of the stockholders entitled to vote thereon, or consent thereto, any other corporation, person or entity referred to in clauses (i) through (iv) of this sentence beneficially owns or controls, directly or indirectly, five percent percen (5%) or more of the outstanding shares of the Company entitled to vote: (i) any merger or consolidation of the Company or any of its subsidiaries with or into such other corporation, person or entity; or (ii) any sale, lease, exchange or other disposition of all or any substantial part of the assets of the Company or any of its subsidiaries to, or with, such other corporation, person or entity; or (iii) the issuance or delivery of any voting securities of the Company or any of its subsidiaries to such other corporation, person or entity in exchange for cash, other assets or securities, or a combination thereof; or (iv) any dissolution or liquidation of the Company; PROVIDED, HOWEVER, that the prohibitions contained in this sentence shall not apply with respect to any such action or transaction approved by (I) the affirmative vote of not less than 80 percent of the outstanding shares of the Company entitled to vote or (II) at least two-thirds (2/3) of the directors of the Company (which must include either the Joint Director if either (x) such Joint Director served in such position as of the Type B Event Date, or (y) such Joint Director has been approved by a majority of the directors who were Common Stock Directors as of the Type B Event Date, or at least one director who was a Common Stock Director prior to the Type B Event Date, unless neither such Joint Director, nor any of such Common Stock Directors continue to serve on the Board of Directors at such time). For purposes of the immediately preceding sentence, a Person shall be deemed to own or control directly or indirectly, any outstanding shares of stock of the Company (A) which it has the right to acquire pursuant to any agreement, or upon the exercise of, conversion rights, warrantswarrants or options, options or otherwise or (B) which are beneficially owned, directly or indirectly (including shares deemed owned through application of clause (A) above) by any other corporation, person or other entity (x) with which it or its "affiliate" or "associate," (as defined below) has any agreement, arrangement, or understanding for the purpose of acquiring, holding, voting or disposing of stock of the Company or (y) which is its "affiliate" or "associate" as those terms are defined under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. No transfer of Series B C Preferred Stock or Series B C Conversion Shares may be made by Purchaser or any Carlyle Affiliate (other than a transfer described in paragraph (b)(ii) or (b)(iii) of this Section 6.14), unless prior thereto, the transferee in such transfer shall have entered into an agreement in form and substance reasonably satisfactory to the Company, agreeing to be bound by the terms of this Section 6.14(c). Notwithstanding anything to the contrary contained in this Section 6.14(c), the Purchaser shall not need any approval by any directors, the Board of Directors or any stockholders under this Section 6.14 in order to transfer, sell or assign any of its Series B C Conversion Shares in the circumstances and the persons set forth in clauses (i), (ii) and (iii) of Section 6.14(b). (d) The Warrants and the Warrant Shares shall be transferable by the Purchaser, subject to compliance with federal and state securities laws, without the approval of the Board of Directors. (e) Except in the case of a transfer pursuant to Rule 144 promulgated pursuant to the Securities Act, or any successor rule, prior to consummating any private sale or transfer of Common Stock to any Person other than a Carlyle Affiliatean Affiliate of Purchaser, the Purchaser shall provide to the Company the written opinion of reputable legal counsel in form reasonably acceptable to the Company that such sale or transfer is being made in compliance with applicable federal securities laws.

Restrictions on Transfer of Capital Stock. (a) The Purchaser shall not transfer, sell, assign, or pledge to any Person other than a Carlyle Affiliatean Affiliate of the Purchaser, or dispose of, any interest in any shares of the Series B C Preferred Stock without the prior approval of the Board of Directors, in its sole discretion. The Purchaser shall not transfer, sell or assign to a Carlyle Affiliateany Affiliate of the Purchaser, any interest in any shares of the Series B C Preferred Stock if such Carlyle Affiliate is engaged in the Business. (b) After the Closing Date and before the earlier to occur of April 14, 1999 and a Type B Event DateEvent, the Purchaser shall not transfer, sell or assign to any Person any of the Series D Preferred Stock, Series B Conversion Shares or Series D C Conversion Shares without the prior approval of an ordinary majority of the Board of Directors in its sole discretion, other than in the following circumstances: (i) A transfer to a Carlyle an Affiliate of the Purchaser (provided that prior to any such transfer such Carlyle Affiliate shall have delivered to the Company its written agreement to be bound by the terms of this Section 6.14); (ii) A transfer permitted under Rule 144 under the Securities Act; (iii) A transfer pursuant to a registered offering under registration rights from the Company as provided in the Registration Rights Agreement; or (iv) A transfer pursuant to a transaction available to all stockholders of the Company on the same terms as to the Purchaser, which has been approved by a majority of the Board of Directors; (c) If a Type B Event Date occurs prior to April 14, 1999, then from the Type B Event Date until the second subsequent annual meeting of stockholders of the Company after such Type B Event Date, (A) the Purchaser shall not make a transfer of any of its Series D Preferred Stock, Series B C Conversion Shares or Series D Conversion Shares in a transaction available to all holders of Common Stock on the same terms as to the Purchaser, unless such transaction has been approved either by (I) the affirmative vote of not less than 80 percent of the outstanding shares of the Company entitled to vote, or (II) at least two-thirds (2/3) of the directors of the Company (which must include either (i) the Joint Director Director, if either (x) such Joint Director served in such position as of the Type B Event Date, or (y) such Joint Director has been approved by a majority of the directors who were Common Stock Directors as of the Type B Event Date, or (ii) at least one director who was a Common Stock Director prior to the Type B Event Date, unless neither such Joint Director, nor any of such Common Stock Directors continue to serve on the Board of Directors at such time) and (B) the Purchaser shall not make a transfer of any of its Series D Preferred Stock, Series B C Conversion Shares or Series D Conversion Shares in a transaction other than one available to all holders of Common Stock on the same terms as to the Purchaser, unless such transaction has been approved either by (I) the affirmative vote of not less than 80 percent of the outstanding shares of the Company entitled to vote, or (II) at least 50 percent of the directors of the Company who are not the Preferred Stock Directors or the Conversion Directors. If a Type B Event Date occurs prior to October 14, 1999, then from the Type B Event Date until the second subsequent annual meeting of stockholders of the Company after such Type B Event Date, none of the following actions or transactions shall be effected by the Company or approved by the Company as a stockholder of any subsidiary of the Company, and neither the Purchaser nor any other holder of Series D Preferred Stock (other than a holder pursuant to a transfer permitted in paragraphs (b)(ii) or (b)(iii) of this Section 6.14) shall engage in, or be a party to, any of the following actions or transactions involving the Company or any subsidiary of the Company, if, as of the record date for the determination of the stockholders entitled to vote thereon, or consent thereto, any other corporation, person or entity referred to in clauses (i) through (iv) of this sentence beneficially owns or controls, directly or indirectly, five percent (5%) or more of the outstanding shares of the Company entitled to vote: (i) any merger or consolidation of the Company or any of its subsidiaries with or into such other corporation, person or entity; or (ii) any sale, lease, exchange or other disposition of all or any substantial part of the assets of the Company or any of its subsidiaries to, or with, such other corporation, person or entity; or (iii) the issuance or delivery of any voting securities of the Company or any of its subsidiaries to such other corporation, person or entity in exchange for cash, other assets or securities, or a combination thereof; or (iv) any dissolution or liquidation of the Company; PROVIDED, HOWEVER, that the prohibitions contained in this sentence shall not apply with respect to any such action or transaction approved by (I) the affirmative vote of not less than 80 percent of the outstanding shares of the Company entitled to vote or (II) at least two-thirds (2/3) of the directors of the Company (which must include either the Joint Director if either (x) such Joint Director served in such position as of the Type B Event Date, or (y) such Joint Director has been approved by a majority of the directors who were Common Stock Directors as of the Type B Event Date, or at least one director who was a Common Stock Director prior to the Type B Event Date, unless neither such Joint Director, nor any of such Common Stock Directors continue to serve on the Board of Directors at such time). For purposes of the immediately preceding sentence, a Person shall be deemed to own or control directly or indirectly, any outstanding shares of stock of the Company (A) which it has the right to acquire pursuant to any agreement, or upon the exercise of, conversion rights, warrantswarrants or options, options or otherwise or (B) which are beneficially owned, directly or indirectly (including shares deemed owned through application of clause (A) above) by any other corporation, person or other entity (x) with which it or its "affiliate" or "associate," (as defined below) has any agreement, arrangement, or understanding for the purpose of acquiring, holding, voting or disposing of stock of the Company or (y) which is its "affiliate" or "associate" as those terms are defined under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. No transfer of Series B C Preferred Stock or Series B C Conversion Shares may be made by Purchaser or any Carlyle Affiliate (other than a transfer described in paragraph (b)(ii) or (b)(iii) of this Section 6.14), unless prior thereto, the transferee in such transfer shall have entered into an agreement in form and substance reasonably satisfactory to the Company, agreeing to be bound by the terms of this Section 6.14(c). Notwithstanding anything to the contrary contained in this Section 6.14(c), the Purchaser shall not need any approval by any directors, the Board of Directors or any stockholders under this Section 6.14 in order to transfer, sell or assign any of its Series B C Conversion Shares in the circumstances and the persons set forth in clauses (i), (ii) and (iii) of Section 6.14(b). (d) The Warrants and the Warrant Shares shall be transferable by the Purchaser, subject to compliance with federal and state securities laws, without the approval of the Board of Directors. (e) Except in the case of a transfer pursuant to Rule 144 promulgated pursuant to the Securities Act, or any successor rule, prior to consummating any private sale or transfer of Common Stock to any Person other than a Carlyle Affiliatean Affiliate of Purchaser, the Purchaser shall provide to the Company the written opinion of reputable legal counsel in form reasonably acceptable to the Company that such sale or transfer is being made in compliance with applicable federal securities laws.