DOCUMENTS, EXCEPT TO THE
EXTENT THAT ANY LOSSES INCURRED BY THE COMPANY RESULT FROM THE GROSS NEGLIGENCE
OR WILLFUL MISCONDUCT OF THE APPLICABLE PURCHASER OR RELATED PERSON IN
CONNECTION WITH SUCH TRANSACTIONS.
IF THE COMPANY BREACHES ITS OBLIGATIONS
UNDER ANY TRANSACTION DOCUMENT, THEN, IN ADDITION TO ANY OTHER LIABILITIES THE
COMPANY MAY HAVE UNDER ANY TRANSACTION DOCUMENT OR APPLICABLE LAW, THE COMPANY
SHALL PAY OR REIMBURSE THE PURCHASERS ON DEMAND FOR ALL COSTS OF COLLECTION AND
ENFORCEMENT (INCLUDING REASONABLE ATTORNEYS FEES AND EXPENSES).
WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, THE COMPANY SPECIFICALLY AGREES TO
REIMBURSE THE PURCHASERS ON DEMAND FOR ALL COSTS OF ENFORCING THE
INDEMNIFICATION OBLIGATIONS IN THIS PARAGRAPH
20
4.9
Additional Issuance of Shares.
(A)
IN THE EVENT THAT AFTER THE DATE HEREOF AND PRIOR TO THE EFFECTIVE
DATE THE COMPANY, WITHOUT THE PRIOR WRITTEN CONSENT OF THE PURCHASERS HOLDING AT
LEAST A MAJORITY OF THE REGISTRABLE SECURITIES, ISSUES OR AGREES TO ISSUE ANY
COMMON STOCK EQUIVALENTS, OTHER THAN SHARES OF EXCLUDED STOCK, FOR A
CONSIDERATION (BEFORE DEDUCTION OF ANY DISCOUNTS, FEES, COMMISSIONS AND OTHER
EXPENSES) TO THE COMPANY PER SHARE LESS THAN THE REFERENCE PRICE (THE "ISSUANCE
PRICE"), EACH PURCHASER SHALL BE ENTITLED IMMEDIATELY (AND IN ANY EVENT PRIOR TO
THE END OF THE FIRST TRADING DAY AFTER THE APPLICABLE ISSUANCE)
TO RECEIVE FROM
THE COMPANY BY WIRE TRANSFER AN AMOUNT IN CASH EQUAL TO THE PRODUCT OF (A) THE
DIFFERENCE BETWEEN THE REFERENCE PRICE MINUS SUCH ISSUANCE PRICE, TIMES (B) THE
NUMBER OF SHARES PURCHASED BY SUCH PURCHASER HEREUNDER.
(I)
(B)
FOR PURPOSES OF ANY CASH PAYMENTS TO A PURCHASER
UNDER SECTION 4.9(A) ABOVE, THE FOLLOWING PROVISIONS SHALL BE APPLICABLE: IN
CONNECTION WITH ANY ISSUANCE OF ANY COMMON STOCK EQUIVALENTS, (X) THE MAXIMUM
NUMBER OF SHARES OF COMMON STOCK ISSUABLE AT ANY TIME UPON CONVERSION, EXERCISE
OR EXCHANGE OF SUCH COMMON STOCK EQUIVALENTS (THE "DEEMED NUMBER") SHALL BE
DEEMED TO BE OUTSTANDING UPON ISSUANCE OF SUCH COMMON STOCK EQUIVALENTS, AND (Y)
THE PRICE PER SHARE APPLICABLE TO SUCH COMMON STOCK EQUIVALENTS SHALL BE DEEMED
TO EQUAL THE MINIMUM DOLLAR VALUE OF CONSIDERATION PAYABLE TO THE COMPANY TO
PURCHASE SUCH COMMON STOCK EQUIVALENTS AND TO CONVERT, EXERCISE OR EXCHANGE THEM
INTO COMMON STOCK, DIVIDED BY THE DEEMED NUMBER.
(II)
IN THE CASE OF THE ISSUANCE OF COMMON STOCK EQUIVALENTS FOR CASH,
THE AMOUNT OF THE CONSIDERATION RECEIVED BY THE COMPANY SHALL BE DEEMED TO BE
THE AGGREGATE AMOUNT OF CASH RECEIVED BY THE COMPANY FOR SUCH COMMON STOCK
EQUIVALENTS.
(III)
IN THE CASE OF THE ISSUANCE OF COMMON STOCK EQUIVALENTS FOR A
CONSIDERATION IN WHOLE OR IN PART OTHER THAN CASH, INCLUDING SECURITIES ACQUIRED
IN EXCHANGE THEREFOR (OTHER THAN SECURITIES BY THEIR TERMS SO EXCHANGEABLE), THE
CONSIDERATION OTHER THAN CASH SHALL BE DEEMED TO BE THE FAIR MARKET VALUE
THEREOF AS DETERMINED IN GOOD FAITH BY THE BOARD OF DIRECTORS OF THE COMPANY,
IRRESPECTIVE OF ANY ACCOUNTING TREATMENT.
4.10
SHAREHOLDERS' RIGHTS PLAN.
IN THE EVENT THAT A SHAREHOLDERS'
RIGHTS PLAN (OR SIMILAR PLAN OR ARRANGEMENT)