THE PREFERRED SHARES AS TO DIVIDEND RIGHTS AND/OR AS TO RIGHTS ON
LIQUIDATION, DISSOLUTION OR WINDING UP OF THE COMPANY. "PARITY STOCK" MEANS ANY
CLASS OR SERIES OF STOCK OF THE COMPANY THE TERMS OF WHICH DO NOT EXPRESSLY
PROVIDE THAT SUCH CLASS OR SERIES WILL RANK SENIOR OR JUNIOR TO THE PREFERRED
SHARES AS TO DIVIDEND RIGHTS AND/OR AS TO RIGHTS ON LIQUIDATION, DISSOLUTION OR
WINDING UP OF THE COMPANY (IN EACH CASE WITHOUT REGARD TO WHETHER DIVIDENDS
ACCRUE CUMULATIVELY OR NON-CUMULATIVELY).
4.9
REPURCHASE OF INVESTOR SECURITIES.
(A)
FOLLOWING THE REDEMPTION IN WHOLE OF THE PREFERRED SHARES HELD BY
THE INVESTOR OR THE TRANSFER BY THE INVESTOR OF ALL OF THE PREFERRED SHARES TO
ONE OR MORE THIRD PARTIES NOT AFFILIATED WITH THE INVESTOR, THE COMPANY MAY
REPURCHASE, IN WHOLE OR IN PART, AT ANY TIME ANY OTHER EQUITY SECURITIES OF THE
COMPANY PURCHASED BY THE INVESTOR PURSUANT TO THIS AGREEMENT OR THE WARRANT AND
THEN HELD BY THE INVESTOR, UPON NOTICE GIVEN AS PROVIDED IN CLAUSE (B) BELOW, AT
THE FAIR MARKET VALUE OF THE EQUITY SECURITY.
(B)
NOTICE OF EVERY REPURCHASE OF EQUITY SECURITIES OF THE COMPANY
HELD BY THE INVESTOR SHALL BE GIVEN AT THE ADDRESS AND IN THE MANNER SET FORTH
FOR SUCH PARTY IN SECTION 5.6.
EACH NOTICE OF REPURCHASE GIVEN TO THE INVESTOR
SHALL STATE: (I) THE NUMBER AND TYPE OF SECURITIES TO BE REPURCHASED, (II) THE
BOARD OF DIRECTOR'S DETERMINATION OF FAIR MARKET VALUE OF SUCH SECURITIES AND
(III) THE PLACE OR PLACES WHERE CERTIFICATES REPRESENTING SUCH SECURITIES ARE TO
BE SURRENDERED FOR PAYMENT OF THE REPURCHASE PRICE.
THE REPURCHASE OF THE
SECURITIES SPECIFIED IN THE NOTICE SHALL OCCUR AS SOON AS PRACTICABLE FOLLOWING
THE DETERMINATION OF THE FAIR MARKET VALUE OF THE SECURITIES.
(C)
AS USED IN THIS SECTION 4.9, THE FOLLOWING TERMS SHALL HAVE THE
FOLLOWING RESPECTIVE MEANINGS:
(I)
"APPRAISAL PROCEDURE" MEANS A PROCEDURE WHEREBY TWO INDEPENDENT
APPRAISERS, ONE CHOSEN BY THE COMPANY AND ONE BY THE INVESTOR, SHALL MUTUALLY
AGREE UPON THE FAIR MARKET VALUE.
EACH PARTY SHALL DELIVER A NOTICE TO THE
OTHER APPOINTING ITS APPRAISER WITHIN 10 DAYS AFTER THE APPRAISAL PROCEDURE IS
INVOKED.
IF WITHIN 30 DAYS AFTER
32
APPOINTMENT OF THE TWO APPRAISERS THEY ARE UNABLE TO AGREE UPON THE FAIR MARKET
VALUE, A THIRD INDEPENDENT APPRAISER SHALL BE CHOSEN WITHIN 10 DAYS THEREAFTER
BY THE MUTUAL CONSENT OF SUCH FIRST TWO APPRAISERS.
THE DECISION OF THE THIRD
APPRAISER SO APPOINTED AND CHOSEN SHALL BE GIVEN WITHIN 30 DAYS AFTER THE
SELECTION OF SUCH THIRD APPRAISER.
IF THREE APPRAISERS SHALL BE APPOINTED AND
THE DETERMINATION OF ONE APPRAISER IS DISPARATE FROM THE MIDDLE DETERMINATION BY
MORE THAN TWICE THE AMOUNT BY WHICH THE OTHER DETERMINATION IS DISPARATE FROM
THE MIDDLE DETERMINATION, THEN THE DETERMINATION OF SUCH APPRAISER SHALL BE
EXCLUDED, THE REMAINING TWO DETERMINATIONS SHALL BE AVERAGED AND SUCH AVERAGE
SHALL BE BINDING AND CONCLUSIVE UPON THE COMPANY AND THE INVESTOR; OTHERWISE,
THE AVERAGE OF ALL THREE DETERMINATIONS SHALL BE BINDING UPON THE COMPANY