THE CONTRARY IN
THIS SECTION 4(O) AND UNLESS OTHERWISE AGREED TO BY THE BUYERS, THE COMPANY
SHALL EITHER CONFIRM IN WRITING TO THE BUYERS THAT THE TRANSACTION WITH RESPECT
TO THE SUBSEQUENT PLACEMENT HAS BEEN ABANDONED OR SHALL PUBLICLY DISCLOSE ITS
INTENTION TO ISSUE THE OFFERED SECURITIES, IN EITHER CASE IN SUCH A MANNER SUCH
THAT THE BUYERS WILL NOT BE IN POSSESSION OF MATERIAL NON-PUBLIC INFORMATION, BY
THE FIFTEENTH (15TH) BUSINESS DAY FOLLOWING DELIVERY OF THE OFFER NOTICE.
IF BY
THE FIFTEENTH (15TH) BUSINESS DAY FOLLOWING DELIVERY OF THE OFFER NOTICE NO
PUBLIC DISCLOSURE REGARDING A TRANSACTION WITH RESPECT TO THE OFFERED SECURITIES
HAS BEEN MADE, AND NO NOTICE REGARDING THE ABANDONMENT OF SUCH TRANSACTION HAS
BEEN RECEIVED BY THE BUYERS, SUCH TRANSACTION SHALL BE DEEMED TO HAVE BEEN
ABANDONED AND THE BUYERS SHALL NOT BE DEEMED TO BE IN POSSESSION OF ANY
MATERIAL, NON-PUBLIC INFORMATION WITH RESPECT TO THE COMPANY.
SHOULD THE
COMPANY DECIDE TO PURSUE SUCH TRANSACTION WITH RESPECT TO THE OFFERED
SECURITIES, THE COMPANY SHALL PROVIDE EACH BUYER WITH ANOTHER OFFER NOTICE AND
EACH BUYER WILL AGAIN HAVE THE RIGHT OF PARTICIPATION SET FORTH IN THIS
SECTION 4(O)(III).
THE COMPANY SHALL NOT BE PERMITTED TO DELIVER MORE THAN ONE
SUCH OFFER NOTICE TO THE BUYERS IN ANY SIXTY (60) DAY PERIOD, EXCLUDING OFFER
NOTICES DELIVERED TO NOTIFY BUYERS OF ANY MATERIAL MODIFICATIONS OR AMENDMENTS
TO A PRIOR OFFER NOTICE.
(IV)
THE RESTRICTIONS CONTAINED IN SUBSECTIONS
(II) AND (III) OF THIS SECTION 4(O) SHALL NOT APPLY IN CONNECTION WITH THE
ISSUANCE OF ANY EXCLUDED SECURITIES (AS DEFINED IN THE NOTES).
26
(P)
COLLATERAL AGENT.
EACH BUYER HEREBY
(A) APPOINTS RAMIUS ADVISORS, LLC, AS THE COLLATERAL AGENT HEREUNDER, UNDER THE
NOTES AND UNDER THE OTHER SECURITY DOCUMENTS (IN SUCH CAPACITY, THE "COLLATERAL
AGENT"), AND (B) AUTHORIZES THE COLLATERAL AGENT (AND ITS OFFICERS, DIRECTORS,
EMPLOYEES AND AGENTS) TO TAKE SUCH ACTION ON SUCH BUYER'S BEHALF IN ACCORDANCE
WITH THE TERMS HEREOF AND THEREOF.
THE COLLATERAL AGENT SHALL NOT HAVE, BY
REASON HEREOF OR ANY OF THE OTHER TRANSACTION DOCUMENTS, A FIDUCIARY
RELATIONSHIP IN RESPECT OF ANY BUYER.
NEITHER THE COLLATERAL AGENT NOR ANY OF
ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS SHALL HAVE ANY LIABILITY TO ANY
BUYER FOR ANY ACTION TAKEN OR OMITTED TO BE TAKEN IN CONNECTION HEREOF OR ANY
OTHER TRANSACTION DOCUMENT EXCEPT TO THE EXTENT CAUSED BY ITS OWN GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT, AND EACH BUYER AGREES TO DEFEND, PROTECT,
INDEMNIFY AND HOLD HARMLESS THE COLLATERAL AGENT AND ALL OF ITS OFFICERS,
DIRECTORS, EMPLOYEES AND AGENTS (COLLECTIVELY, THE "INDEMNITEES") FROM AND
AGAINST ANY LOSSES, DAMAGES, LIABILITIES, OBLIGATIONS, PENALTIES, ACTIONS,
JUDGMENTS, SUITS, FEES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION,
REASONABLE ATTORNEYS' FEES, COSTS AND EXPENSES) INCURRED BY SUCH INDEMNITEE,
WHETHER DIRECT, INDIRECT OR CONSEQUENTIAL, ARISING FROM OR IN CONNECTION WITH
THE PERFORMANCE BY SUCH INDEMNITEE OF THE DUTIES AND OBLIGATIONS OF COLLATERAL
AGENT PURSUANT HERETO OR ANY OF THE TRANSACTION DOCUMENTS.
THE COLLATERAL AGENT
SHALL NOT BE REQUIRED TO EXERCISE ANY DISCRETION OR TAKE ANY