EFFECT ANY SUBSEQUENT FINANCING
INVOLVING A VARIABLE RATE TRANSACTION; PROVIDED, HOWEVER, THAT THE PROHIBITION
IN THIS SECTION 4.14(B) SHALL NOT APPLY IF SUCH AGREEMENT CONTAINS A CONTRACTUAL
"FLOOR" THAT IS EQUAL TO THE PER SHARE PURCHASE PRICE AND IS BINDING ON ALL
ISSUANCES UNDER SUCH AGREEMENT.
"VARIABLE RATE TRANSACTION" MEANS A TRANSACTION
IN WHICH THE COMPANY (I) ISSUES OR SELLS ANY DEBT OR EQUITY SECURITIES THAT ARE
CONVERTIBLE INTO, EXCHANGEABLE OR EXERCISABLE FOR, OR INCLUDE THE RIGHT TO
RECEIVE, ADDITIONAL SHARES OF COMMON STOCK EITHER (A) AT A CONVERSION, EXERCISE
OR EXCHANGE RATE OR OTHER PRICE THAT IS BASED UPON, AND/OR VARIES WITH, THE
TRADING PRICES OF OR QUOTATIONS FOR THE SHARES OF COMMON STOCK AT ANY TIME AFTER
THE INITIAL ISSUANCE OF SUCH DEBT OR EQUITY SECURITIES, OR (B) WITH A
CONVERSION, EXERCISE OR EXCHANGE PRICE THAT IS SUBJECT TO BEING RESET AT SOME
FUTURE DATE AFTER THE INITIAL ISSUANCE OF SUCH DEBT OR EQUITY SECURITY OR UPON
THE OCCURRENCE OF SPECIFIED OR CONTINGENT EVENTS DIRECTLY OR INDIRECTLY RELATED
TO THE BUSINESS OF THE COMPANY OR THE MARKET FOR THE COMMON STOCK OR (II) ENTERS
INTO ANY AGREEMENT, INCLUDING, BUT NOT LIMITED TO, AN EQUITY LINE OF CREDIT,
WHEREBY THE COMPANY MAY SELL SECURITIES AT A FUTURE DETERMINED PRICE.
ANY
PURCHASER SHALL BE ENTITLED TO OBTAIN INJUNCTIVE RELIEF AGAINST THE COMPANY TO
PRECLUDE ANY SUCH ISSUANCE, WHICH REMEDY SHALL BE IN ADDITION TO ANY RIGHT TO
COLLECT DAMAGES.
(C)
NOTWITHSTANDING THE FOREGOING, THIS SECTION
4.14 SHALL NOT APPLY IN RESPECT OF AN EXEMPT ISSUANCE, EXCEPT THAT NO VARIABLE
RATE TRANSACTION SHALL BE AN EXEMPT ISSUANCE.
27
4.15
SHORT SALES AND CONFIDENTIALITY AFTER THE DATE
HEREOF.
EACH PURCHASER SEVERALLY AND NOT JOINTLY WITH THE OTHER PURCHASERS
COVENANTS THAT NEITHER IT NOR ANY AFFILIATE ACTING ON ITS BEHALF OR PURSUANT TO
ANY UNDERSTANDING WITH IT WILL EXECUTE ANY SHORT SALES DURING THE PERIOD
COMMENCING AT THE DISCUSSION TIME AND ENDING AT THE TIME THAT THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT ARE FIRST PUBLICLY ANNOUNCED AS DESCRIBED IN
SECTION 4.4.
EACH PURCHASER, SEVERALLY AND NOT JOINTLY WITH THE OTHER
PURCHASERS, COVENANTS THAT UNTIL SUCH TIME AS THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT ARE PUBLICLY DISCLOSED BY THE COMPANY AS DESCRIBED IN SECTION
4.4, SUCH PURCHASER WILL MAINTAIN THE CONFIDENTIALITY OF ALL DISCLOSURES MADE TO
IT IN CONNECTION WITH THIS TRANSACTION (INCLUDING THE EXISTENCE AND TERMS OF
THIS TRANSACTION).
EACH PURCHASER UNDERSTANDS AND ACKNOWLEDGES, SEVERALLY AND
NOT JOINTLY WITH ANY OTHER PURCHASER, THAT THE COMMISSION CURRENTLY TAKES THE
POSITION THAT COVERAGE OF SHORT SALES OF SHARES OF THE COMMON STOCK "AGAINST THE
BOX" PRIOR TO THE EFFECTIVE DATE OF THE REGISTRATION STATEMENT WITH THE
SECURITIES IS A VIOLATION OF SECTION 5 OF THE SECURITIES ACT, AS SET FORTH IN
ITEM 65, SECTION A, OF THE MANUAL OF PUBLICLY AVAILABLE TELEPHONE
INTERPRETATIONS, DATED JULY 1997, COMPILED BY THE OFFICE OF CHIEF COUNSEL,
DIVISION OF CORPORATION FINANCE.
NOTWITHSTANDING THE FOREGOING, NO PURCHASER
MAKES ANY REPRESENTATION, WARRANTY OR COVENANT HEREBY THAT IT WILL NOT ENGAGE