EVENT SHALL BUYER BE ENTITLED TO
RECEIVE, OR SHALL BE DEEMED TO RECEIVE, ANY SHARES IF, UPON SUCH RECEIPT OF SUCH
SHARES, THE "BENEFICIAL OWNERSHIP" (WITHIN THE MEANING OF SECTION 13 OF THE
EXCHANGE ACT AND THE RULES PROMULGATED THEREUNDER) OF SHARES BY BUYER OR ANY
ENTITY THAT DIRECTLY OR INDIRECTLY CONTROLS BUYER (COLLECTIVELY, "BUYER GROUP")
WOULD BE EQUAL TO OR GREATER THAN 7.5% OR MORE OF THE OUTSTANDING SHARES.
IF
ANY DELIVERY OWED TO BUYER HEREUNDER IS NOT MADE, IN WHOLE OR IN PART, AS A
RESULT OF THIS PROVISION, ISSUER'S OBLIGATION TO MAKE SUCH DELIVERY SHALL NOT BE
EXTINGUISHED AND ISSUER SHALL MAKE SUCH DELIVERY AS PROMPTLY AS PRACTICABLE
AFTER, BUT IN NO EVENT LATER THAN ONE EXCHANGE BUSINESS DAY AFTER, BUYER GIVES
NOTICE TO ISSUER THAT SUCH DELIVERY WOULD NOT RESULT IN BUYER GROUP DIRECTLY OR
INDIRECTLY SO BENEFICIALLY OWNING IN EXCESS OF 7.5% OF THE OUTSTANDING SHARES.
(E)
LIMITATIONS ON SETTLEMENT BY ISSUER.
NOTWITHSTANDING ANYTHING
HEREIN OR IN THE AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL ISSUER BE REQUIRED
TO DELIVER A NUMBER OF SHARES IN CONNECTION WITH THE TRANSACTION IN EXCESS OF
TWICE THE AGGREGATE NUMBER OF WARRANTS HEREUNDER (THE "CAPPED NUMBER").
ISSUER
REPRESENTS AND WARRANTS (WHICH SHALL BE DEEMED TO BE REPEATED ON EACH DAY THAT
THE TRANSACTION IS OUTSTANDING) THAT THE CAPPED NUMBER IS EQUAL TO OR LESS THAN
THE NUMBER OF AUTHORIZED BUT UNISSUED SHARES OF THE ISSUER THAT ARE NOT RESERVED
FOR FUTURE ISSUANCE IN CONNECTION WITH TRANSACTIONS IN THE SHARES (OTHER THAN
THE TRANSACTION) ON THE DATE OF THE DETERMINATION OF THE CAPPED NUMBER (SUCH
SHARES, THE "AVAILABLE SHARES").
IN THE EVENT ISSUER SHALL NOT HAVE DELIVERED
THE FULL NUMBER OF SHARES OTHERWISE DELIVERABLE AS A RESULT OF THIS SECTION 8(E)
(THE RESULTING DEFICIT, THE "DEFICIT SHARES"), ISSUER SHALL BE CONTINUALLY
OBLIGATED TO DELIVER, FROM TIME TO TIME UNTIL THE FULL NUMBER OF DEFICIT SHARES
HAVE BEEN DELIVERED PURSUANT TO THIS PARAGRAPH, SHARES WHEN, AND TO THE EXTENT,
THAT (I) SHARES ARE REPURCHASED, ACQUIRED OR OTHERWISE RECEIVED BY ISSUER OR ANY
OF ITS SUBSIDIARIES AFTER THE TRADE DATE (WHETHER OR NOT IN EXCHANGE FOR CASH,
FAIR VALUE OR ANY OTHER CONSIDERATION), (II) AUTHORIZED AND UNISSUED SHARES
RESERVED FOR ISSUANCE IN RESPECT OF OTHER TRANSACTIONS PRIOR TO SUCH DATE WHICH
PRIOR TO THE RELEVANT DATE BECOME NO LONGER SO RESERVED AND (III) ISSUER
ADDITIONALLY AUTHORIZES AND UNISSUED SHARES THAT ARE NOT RESERVED FOR OTHER
TRANSACTIONS.
ISSUER SHALL IMMEDIATELY NOTIFY DEALER OF THE OCCURRENCE OF ANY
OF THE FOREGOING EVENTS (INCLUDING THE NUMBER OF SHARES SUBJECT TO CLAUSE (I),
(II) OR (III) AND THE CORRESPONDING NUMBER OF SHARES TO BE DELIVERED) AND
PROMPTLY DELIVER SUCH SHARES THEREAFTER.
(F)
EQUITY RIGHTS.
BUYER ACKNOWLEDGES AND AGREES THAT THIS
CONFIRMATION IS NOT INTENDED TO CONVEY TO IT RIGHTS WITH RESPECT TO THE
TRANSACTION THAT ARE SENIOR TO THE CLAIMS OF COMMON STOCKHOLDERS IN THE EVENT
12
OF ISSUER'S BANKRUPTCY.
FOR THE AVOIDANCE OF DOUBT, THE PARTIES AGREE THAT THE
PRECEDING SENTENCE SHALL NOT