A TRANSACTION IN WHICH THE COMPANY ISSUES OR SELLS (I)
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.
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(C) NOTWITHSTANDING THE FOREGOING, THIS SECTION 4.13 SHALL NOT APPLY IN RESPECT
OF AN EXEMPT ISSUANCE, EXCEPT THAT NO VARIABLE RATE TRANSACTION SHALL BE AN
EXEMPT ISSUANCE UNLESS SUCH VARIABLE RATE TRANSACTION MEETS THE REQUIREMENTS
DESCRIBED IN CLAUSE (C) OF THE DEFINITION OF "EXEMPT ISSUANCE" IN SECTION 1.1
HEREOF.
4.14 EQUAL TREATMENT OF PURCHASERS.
NO CONSIDERATION SHALL BE OFFERED OR PAID
TO ANY PERSON TO AMEND OR CONSENT TO A WAIVER OR MODIFICATION OF ANY PROVISION
OF ANY OF THE TRANSACTION DOCUMENTS UNLESS THE SAME CONSIDERATION IS ALSO
OFFERED TO ALL OF THE PARTIES TO THE TRANSACTION DOCUMENTS. FURTHER, THE COMPANY
SHALL NOT MAKE ANY PAYMENT OF PRINCIPAL OR INTEREST ON THE DEBENTURES IN AMOUNTS
WHICH ARE DISPROPORTIONATE TO THE RESPECTIVE PRINCIPAL AMOUNTS OUTSTANDING ON
THE DEBENTURES AT ANY APPLICABLE TIME.
FOR CLARIFICATION PURPOSES, THIS
PROVISION CONSTITUTES A SEPARATE RIGHT GRANTED TO EACH PURCHASER BY THE COMPANY
AND NEGOTIATED SEPARATELY BY EACH PURCHASER, AND IS INTENDED FOR THE COMPANY TO
TREAT THE PURCHASERS AS A CLASS AND SHALL NOT IN ANY WAY BE CONSTRUED AS THE
PURCHASERS ACTING IN CONCERT OR AS A GROUP WITH RESPECT TO THE PURCHASE,
DISPOSITION OR VOTING OF SECURITIES OR OTHERWISE.
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 4.6.
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 4.6, SUCH PURCHASER WILL MAINTAIN THE
CONFIDENTIALITY OF THE EXISTENCE AND TERMS OF THIS TRANSACTION AND THE
INFORMATION INCLUDED IN THE DISCLOSURE SCHEDULES.
EACH PURCHASER SEVERALLY AND
NOT JOINTLY WITH ANY OTHER PURCHASER UNDERSTANDS AND ACKNOWLEDGES, AND AGREES,
TO