OR CUSTOMER FACILITATION TRANSACTIONS IN
TRUST PREFERRED SECURITIES OF THE COMPANY OR AN AFFILIATE OF THE COMPANY, JUNIOR
STOCK OR
-15-
PARITY STOCK IN THE ORDINARY COURSE OF ITS BUSINESS, (D) PURCHASES BY A
BROKER-DEALER SUBSIDIARY OF THE COMPANY OF TRUST PREFERRED SECURITIES OR CAPITAL
STOCK OF THE COMPANY OR AN AFFILIATE OF THE COMPANY FOR RESALE PURSUANT TO AN
OFFERING BY THE COMPANY OF SUCH TRUST PREFERRED SECURITIES OR CAPITAL STOCK
UNDERWRITTEN BY SUCH BROKER-DEALER SUBSIDIARY, (E) ANY REDEMPTION OR REPURCHASE
OF RIGHTS PURSUANT TO ANY STOCKHOLDERS' RIGHTS PLAN, (F) THE ACQUISITION BY THE
COMPANY OR ANY OF THE COMPANY SUBSIDIARIES OF RECORD OWNERSHIP IN JUNIOR STOCK,
PARITY STOCK OR TRUST PREFERRED SECURITIES OF THE COMPANY OR AN AFFILIATE OF THE
COMPANY FOR THE BENEFICIAL OWNERSHIP OF ANY OTHER PERSONS (OTHER THAN THE
COMPANY OR ANY OTHER COMPANY SUBSIDIARY), INCLUDING AS TRUSTEES OR CUSTODIANS,
(G) THE OTHER TRANSACTIONS, AND (H) THE EXCHANGE OR CONVERSION OF JUNIOR STOCK
FOR OR INTO OTHER JUNIOR STOCK OR OF PARITY STOCK OR TRUST PREFERRED SECURITIES
OF THE COMPANY OR AN AFFILIATE OF THE COMPANY FOR OR INTO OTHER PARITY STOCK
(WITH THE SAME OR LESSER AGGREGATE LIQUIDATION AMOUNT) OR JUNIOR STOCK, IN EACH
CASE SET FORTH IN THIS CLAUSE (H), SOLELY TO THE EXTENT REQUIRED PURSUANT TO
BINDING CONTRACTUAL AGREEMENTS ENTERED INTO PRIOR TO THE DATE HEREOF OR ANY
SUBSEQUENT AGREEMENT FOR THE ACCELERATED EXERCISE, SETTLEMENT OR EXCHANGE
THEREOF FOR COMMON STOCK (CLAUSES (C) AND (F), COLLECTIVELY, THE "PERMITTED
REPURCHASES").
"SHARE DILUTION AMOUNT" MEANS THE INCREASE IN THE NUMBER OF
DILUTED SHARES OUTSTANDING (DETERMINED IN ACCORDANCE WITH GAAP, AND AS MEASURED
FROM THE DATE OF THE COMPANY'S MOST RECENTLY FILED CONSOLIDATED FINANCIAL
STATEMENTS PRIOR TO THE CLOSING DATE) RESULTING FROM THE GRANT, VESTING OR
EXERCISE OF EQUITY-BASED COMPENSATION TO EMPLOYEES AND EQUITABLY ADJUSTED FOR
ANY STOCK SPLIT, STOCK DIVIDEND, REVERSE STOCK SPLIT, RECLASSIFICATION OR
SIMILAR TRANSACTION.
(B)
UNTIL SUCH TIME AS THE INVESTOR CEASES TO OWN ANY CAPITAL SECURITIES,
THE COMPANY SHALL NOT REPURCHASE ANY CAPITAL SECURITIES FROM ANY HOLDER THEREOF,
WHETHER BY MEANS OF OPEN MARKET PURCHASE, NEGOTIATED TRANSACTION, OR OTHERWISE,
OTHER THAN PERMITTED REPURCHASES, UNLESS IT OFFERS TO REPURCHASE A RATABLE
PORTION OF THE CAPITAL SECURITIES THEN HELD BY THE INVESTOR ON THE SAME TERMS
AND CONDITIONS.
(C)
THE PARTIES AGREE THAT, EFFECTIVE AS OF THE DATE HEREOF, SECTION 4.8
OF THE SECURITIES PURCHASE AGREEMENT SHALL BE AMENDED IN ITS ENTIRETY BY
REPLACING SUCH SECTION 4.8 WITH THE PROVISIONS SET FORTH IN THIS SECTION 5.7 AND
ANY TERMS INCLUDED IN THIS SECTION 5.7 THAT ARE NOT OTHERWISE DEFINED IN THE
SECURITIES PURCHASE AGREEMENT SHALL HAVE THE MEANINGS ASCRIBED TO SUCH TERMS IN
THIS AGREEMENT.
SECTION 5.8
REPURCHASE OF INVESTOR SECURITIES.
FROM AND AFTER THE DATE OF
THIS AGREEMENT, THE AGREEMENTS SET FORTH IN SECTION 4.9 OF THE SECURITIES
PURCHASE AGREEMENT SHALL BE APPLICABLE (INCLUDING TO THE AMENDED WARRANT)
FOLLOWING THE REDEMPTION IN WHOLE OF THE CAPITAL SECURITIES HELD BY THE INVESTOR
OR THE TRANSFER BY THE INVESTOR OF ALL OF