pay to the Corporation, such amount as will, after taking
account of all taxes imposed with respect to the receipt or accrual of such
amount and all costs incurred by the Corporation as a result of such violation,
put the Corporation in the same financial position as it would have been in had
such violation not occurred.
4.
Amendment of Transfer Restrictions.
Notwithstanding the provisions of
Article XII of the Corporation's Restated Certificate of Incorporation, the
Corporation may only amend or repeal any of the provisions set forth in this
Section E. by the affirmative vote of the holders of two-thirds of the shares
entitled to vote thereon.
5.
Legends; Compliance
(a)
All certificates reflecting Corporation Securities on or after the
Effective Time shall, until the Restriction Release Date, bear a conspicuous
legend in substantially the following form:
THE RESTATED CERTIFICATE OF INCORPORATION, AS AMENDED (THE "CERTIFICATE OF
INCORPORATION"), OF THE CORPORATION CONTAINS RESTRICTIONS PROHIBITING THE
TRANSFER (AS DEFINED IN THE CERTIFICATE OF INCORPORATION) OF STOCK OF THE
CORPORATION (INCLUDING THE CREATION OR GRANT OF CERTAIN OPTIONS, RIGHTS AND
WARRANTS) WITHOUT THE PRIOR AUTHORIZATION OF THE BOARD OF DIRECTORS OF THE
CORPORATION (THE "BOARD OF DIRECTORS") IF SUCH TRANSFER AFFECTS THE PERCENTAGE
OF STOCK OF THE CORPORATION (WITHIN THE MEANING OF SECTION 382 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE") AND THE TREASURY REGULATIONS
PROMULGATED THEREUNDER) THAT IS TREATED AS OWNED BY A FIVE PERCENT SHAREHOLDER
UNDER THE CODE AND SUCH REGULATIONS.
IF THE TRANSFER RESTRICTIONS ARE VIOLATED,
THEN THE TRANSFER WILL BE VOID AB INITIO AND THE PURPORTED TRANSFEREE OF THE
STOCK WILL BE REQUIRED TO TRANSFER EXCESS SECURITIES (AS DEFINED IN THE
CERTIFICATE OF INCORPORATION) TO THE CORPORATION'S AGENT.
IN THE EVENT OF A
TRANSFER WHICH DOES NOT INVOLVE SECURITIES OF THE CORPORATION WITHIN THE MEANING
OF THE GENERAL CORPORATION LAW OF THE STATE OF DELAWARE ("SECURITIES") BUT WHICH
WOULD VIOLATE THE TRANSFER RESTRICTIONS, THE PURPORTED TRANSFEREE (OR THE RECORD
OWNER) OF THE SECURITIES WILL BE REQUIRED TO TRANSFER SUFFICIENT SECURITIES
PURSUANT TO THE TERMS PROVIDED FOR IN THE CORPORATION'S CERTIFICATE OF
INCORPORATION TO CAUSE THE FIVE PERCENT STOCKHOLDER TO NO LONGER BE IN VIOLATION
OF THE TRANSFER RESTRICTIONS.
THE CORPORATION WILL FURNISH WITHOUT CHARGE TO
ANY PROPERLY INTERESTED PERSON A COPY OF THE CERTIFICATE OF INCORPORATION,
CONTAINING THE ABOVE-REFERENCED TRANSFER RESTRICTIONS, UPON WRITTEN REQUEST TO
THE CORPORATION AT ITS PRINCIPAL PLACE OF BUSINESS."
The Board of Directors may also require that any certificates issued by the
Corporation evidencing ownership of shares of Stock that are subject to
conditions imposed by the Board of Directors under Section E.2(b) of this
Article IV also bear a conspicuous legend referencing the applicable
restrictions.
(b)
The Corporation shall have the power to make appropriate notations upon its
stock transfer records and to instruct any transfer agent, registrar, securities
intermediary or depository with respect to the requirements of this Article IV
for any uncertificated Corporation Securities or Corporation Securities held in
an indirect holding system.
At the request