OTHER COMMUNICATION TO HOLDERS OF THE COMMON STOCK IT WILL
CONTEMPORANEOUSLY DELIVER A COPY OF SUCH NOTICE OR COMMUNICATION TO THE
PURCHASERS ONLY FOR SO LONG AS THEY OWN ANY SECURITIES.
THE COMPANY
ACKNOWLEDGES AND AGREES THAT, FOR SO LONG AS A PURCHASER HOLDS ANY SECURITIES
(WHETHER OR NOT SUCH PURCHASER HOLDS SHARES OF COMMON STOCK), (A) THE OFFICERS
AND DIRECTORS OF THE COMPANY WILL OWE THE SAME DUTIES (FIDUCIARY AND OTHERWISE)
TO SUCH PURCHASER AS ARE OWED TO A HOLDER OF COMMON STOCK AND (B) SUCH PURCHASER
WILL BE ENTITLED TO ALL RIGHTS AND REMEDIES WITH RESPECT TO SUCH DUTIES AS ARE
AVAILABLE TO A HOLDER OF COMMON STOCK UNDER THE CORPORATE LAW OF THE COMPANY'S
JURISDICTION OF INCORPORATION.
4.13
SHAREHOLDERS RIGHTS PLAN.
NO CLAIM WILL BE MADE
OR ENFORCED BY THE COMPANY OR ANY OTHER PERSON THAT ANY PURCHASER IS AN
"ACQUIRING PERSON" UNDER ANY SHAREHOLDERS RIGHTS PLAN OR SIMILAR PLAN OR
ARRANGEMENT IN EFFECT OR HEREAFTER ADOPTED BY THE COMPANY, OR THAT ANY
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PURCHASER COULD BE DEEMED TO TRIGGER THE PROVISIONS OF ANY SUCH PLAN OR
ARRANGEMENT, SOLELY BY VIRTUE OF RECEIVING UNDERLYING SHARES UNDER THE
TRANSACTION DOCUMENTS OR UNDER ANY OTHER AGREEMENT BETWEEN THE COMPANY AND THE
PURCHASERS.
4.14
CERTAIN TRADING LIMITATIONS.
FOR SO LONG AS A
PURCHASER HOLD THE SHARES ORIGINALLY PURCHASED BY IT UNDER THIS AGREEMENT, SUCH
PURCHASER AGREES THAT IT WILL NOT ENTER INTO ANY SHORT SALES.
FOR PURPOSES OF
THIS SECTION 4.14, A "SHORT SALE" BY A PURCHASER MEANS A SALE OF COMMON STOCK
THAT IS MARKED AS A SHORT SALE AND THAT IS EXECUTED AT A TIME WHEN SUCH
PURCHASER HAS NO EQUIVALENT OFFSETTING LONG POSITION IN THE COMMON STOCK.
FOR
PURPOSES OF DETERMINING WHETHER A PURCHASER HAS AN EQUIVALENT OFFSETTING LONG
POSITION IN THE COMMON STOCK, ALL COMMON STOCK AND ALL COMMON STOCK THAT WOULD
BE ISSUABLE UPON CONVERSION OR EXERCISE IN FULL OF ALL SECURITIES AND OPTIONS
THEN HELD BY SUCH PURCHASER (WHETHER OR NOT SUCH SECURITIES AND OPTIONS WERE
THEN FULLY CONVERTIBLE OR EXERCISABLE, AND GIVING EFFECT TO ANY CONVERSION OR
EXERCISE PRICE ADJUSTMENTS SCHEDULED TO TAKE EFFECT IN THE FUTURE) SHALL BE
DEEMED TO BE HELD LONG BY SUCH PURCHASER.
4.15
INDEBTEDNESS.
SO LONG AS ANY SHARES OF SERIES B
PREFERRED STOCK ARE OUTSTANDING:
(A)
THE COMPANY SHALL NOT, AND THE COMPANY SHALL NOT PERMIT ANY OF ITS
SUBSIDIARIES TO, DIRECTLY OR INDIRECTLY, INCUR OR GUARANTEE, ASSUME OR SUFFER TO
EXIST ANY DEBT, OTHER THAN PERMITTED DEBT.
(B)
THE COMPANY SHALL NOT, AND THE COMPANY SHALL NOT PERMIT ANY OF ITS
SUBSIDIARIES TO, DIRECTLY OR INDIRECTLY, ALLOW OR SUFFER TO EXIST ANY LIEN,
OTHER THAN PERMITTED LIENS OR LIENS INCURRED IN CONNECTION WITH PERMITTED DEBT
(OTHER THAN PERMITTED SUBORDINATED DEBT).
(C)
THE COMPANY SHALL NOT, AND THE COMPANY SHALL NOT PERMIT ANY OF ITS
SUBSIDIARIES TO, DIRECTLY OR INDIRECTLY, REDEEM, DEFEASE, REPURCHASE, REPAY OR
MAKE ANY PAYMENTS IN RESPECT OF, BY THE PAYMENT OF CASH OR CASH EQUIVALENTS (IN
WHOLE OR IN PART, WHETHER BY