OTHER PERSON, INCLUDING MSC, ANY CREDITOR OF MSC, OR ANY
OTHER SHAREHOLDER OF MSC, THAT IF THE BOARD REQUESTS ADDITIONAL PRE-COMMERCIAL
OPERATIONS FUNDS FROM EACH SHAREHOLDER GROUP PURSUANT TO SECTION 4.2(B), EACH
SHAREHOLDER GROUP SHALL CONTRIBUTE ITS RESPECTIVE SHARE OF SUCH FUNDS, WHICH
SHALL BE IN PROPORTION TO ITS RESPECTIVE INTEREST RATIO, IN EACH CASE DETERMINED
AS OF THE DATE IMMEDIATELY PRIOR TO THE DATE MSC DELIVERS THE PRE-COMMERCIAL
OPERATIONS CONTRIBUTION NOTICE.
SUCH CONTRIBUTIONS, IF ANY, SHALL BE MADE IN
ACCORDANCE WITH SECTION 4.4.
(D)
DRAWS ON SUMITOMO COMPLETION AGREEMENT.
IF SUMITOMO MAKES ANY
PAYMENT UNDER SECTION 2.02(A) OF THE SUMITOMO COMPLETION AGREEMENT,
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO CONTRARY, THE SUMITOMO
SHAREHOLDERS SHALL HAVE THE RIGHT TO HAVE SUCH AMOUNT TREATED AS A CAPITAL
CONTRIBUTION TO MSC UPON NOTICE FROM THE SUMITOMO SHAREHOLDERS TO THE APEX
SHAREHOLDERS AND MSC.
UPON SUCH NOTICE, (I) THE AMOUNT SO PAID BY SUMITOMO
SHALL BE DEEMED A CONTRIBUTION BY THE SUMITOMO SHAREHOLDERS TO THE CAPITAL OF
MSC, (II) THE "CSA PENALTY SUBSCRIPTION PRICE" PER SHARE SHALL BE AN AMOUNT
EQUAL TO THE IMPLIED EQUITY OF MSC DETERMINED IN ACCORDANCE WITH SECTION
4.4(A)(V) DIVIDED BY THE PRODUCT OF TWO TIMES THE NUMBER OF ISSUED AND
OUTSTANDING SHARES IMMEDIATELY PRIOR TO THE MAKING OF SUCH PAYMENT BY SUMITOMO,
(III) MSC SHALL ISSUE TO THE SUMITOMO SHAREHOLDERS A NUMBER OF FULLY PAID AND
NONASSESSABLE SHARES EQUAL TO THE AMOUNT SO PAID BY SUMITOMO DIVIDED BY THE CSA
PENALTY SUBSCRIPTION PRICE PER SHARE, AND (IV) THE SHAREHOLDERS (A) SHALL VOTE
THEIR SHARES TO APPROVE ANY CAPITAL INCREASE NECESSARY TO PERMIT THE ISSUANCE OF
SUCH NEWLY ISSUED SHARES; (B) TAKE ALL NECESSARY AND APPROPRIATE ACTIONS TO
CAUSE MSC TO ADOPT ANY DECISIONS AND TAKE ANY ACTIONS THAT MAY BE NECESSARY TO
PERMIT SUCH ISSUANCE, INCLUDING AN AMENDMENT OF THE ESTATUTOS; AND (C) WAIVE ANY
PREEMPTIVE RIGHTS THEY MAY HAVE IN CONNECTION THEREWITH.
MSC SHALL NOT ISSUE
FRACTIONAL INTERESTS IN SHARES UNDER THIS SECTION 4.2(D).
IF THE SUMITOMO
SHAREHOLDERS WOULD OTHERWISE BE ENTITLED TO A FRACTIONAL SHARE INTEREST, MSC
SHALL PAY CASH IN LIEU OF SUCH FRACTIONAL SHARE INTEREST.
THE AMOUNT OF CASH IN
LIEU TO BE PAID SHALL BE DETERMINED BY MULTIPLYING (A) THE CSA PENALTY
SUBSCRIPTION PRICE APPLIED IN MAKING SUCH CONVERSION BY (B) SUCH FRACTIONAL
SHARE INTEREST, AND ROUNDING THE PRODUCT TO THE NEAREST WHOLE CENT (CENTAVO),
WITH ONE-HALF CENT (CENTAVO) BEING ROUNDED UPWARD.
SECTION 4.3
POST-COMMERCIAL OPERATIONS FUNDING.
(A)
THIRD-PARTY DEBT FINANCING; ADDITIONAL POST-COMMERCIAL OPERATIONS
FUNDS.
IF, AFTER THE COMMERCIAL OPERATIONS DATE, THE BOARD DETERMINES THAT
ADDITIONAL FUNDS ARE NECESSARY FOR MSC TO MEET ITS OPERATING EXPENSES OR ITS
CAPITAL REQUIREMENTS, OR TO CARRY OUT ANY OTHER ACTIVITIES OR IMPLEMENT ANY
DECISION APPROVED BY THE BOARD (IN THE AGGREGATE, THE "ADDITIONAL
POST-COMMERCIAL OPERATIONS FUNDS"), MSC FIRST SHALL USE COMMERCIALLY REASONABLE
EFFORTS TO ATTEMPT TO OBTAIN SUCH ADDITIONAL FUNDS THROUGH DEBT
47
FINANCING FROM THIRD PARTIES WITHOUT RECOURSE TO THE SHAREHOLDERS.
IF THE BOARD
DETERMINES THAT SUCH THIRD-PARTY DEBT FINANCING IS NOT AVAILABLE ON COMMERCIALLY