(INCLUDING, BUT NOT LIMITED TO, THE PLAN AS INCORPORATED BY
REFERENCE HEREIN), THE COMPANY SHALL NOT BE PERMITTED TO REPURCHASE ANY SHARES
FROM THE PURCHASER TO THE EXTENT THAT (I) SUCH REPURCHASE (OR THE PAYMENT OF A
DIVIDEND BY ANY SUBSIDIARY TO FUND SUCH REPURCHASE) WOULD RESULT IN ANY DEFAULT
OR AN EVENT OF DEFAULT, OR WOULD BE PROHIBITED UNDER, ANY FINANCING OR SECURITY
AGREEMENT OR DOCUMENT ENTERED INTO BY THE COMPANY OR ANY SUBSIDIARY PRIOR TO THE
DATE HEREOF, ANY REFUNDING THEREOF, OR IN CONNECTION WITH THE OPERATIONS OF THE
COMPANY OR ANY SUBSIDIARY FROM TIME TO TIME, IN EACH CASE, AS THE SAME MAY BE
AMENDED, MODIFIED OR SUPPLEMENTED FROM TIME TO TIME (THE "FINANCING
AGREEMENTS"), (II) SUCH REPURCHASE WOULD RESULT IN A VIOLATION OF ANY LAW,
STATUTE, RULE, REGULATION, POLICY, ORDER, WRIT, INJUNCTION, DECREE OR JUDGMENT
PROMULGATED OR ENTERED BY ANY FEDERAL, STATE, LOCAL OR FOREIGN COURT OR
GOVERNMENTAL AUTHORITY APPLICABLE TO THE COMPANY OR ANY SUBSIDIARY OR ANY OF ITS
OR THEIR PROPERTY, (III) SUCH REPURCHASE WOULD VIOLATE ANY OF THE TERMS OR
PROVISIONS OF THE CERTIFICATE OF INCORPORATION OF THE COMPANY, OR (IV) THE
COMPANY HAS NO FUNDS LEGALLY AVAILABLE THEREFOR UNDER THE GENERAL CORPORATION
LAW OF THE STATE OF DELAWARE.
(B)
DELAY OF REPURCHASE.
IN THE EVENT THAT A REPURCHASE BY THE
COMPANY OTHERWISE PERMITTED UNDER SECTION 4 IS PREVENTED SOLELY BY THE TERMS OF
SECTION 6(A), (I) SUCH REPURCHASE WILL BE POSTPONED AND WILL TAKE PLACE WITHOUT
THE APPLICATION OF FURTHER CONDITIONS OR IMPEDIMENTS (OTHER THAN AS SET FORTH IN
SECTION 4 OR IN THIS SECTION 6) AT THE FIRST OPPORTUNITY WHEN THE COMPANY HAS
FUNDS LEGALLY AVAILABLE THEREFOR AND WHEN SUCH REPURCHASE WILL NOT RESULT IN ANY
DEFAULT, EVENT OF DEFAULT OR VIOLATION UNDER ANY OF THE FINANCING AGREEMENTS OR
IN A VIOLATION OF ANY TERM OR PROVISION OF THE CERTIFICATE OF INCORPORATION OF
THE COMPANY AND (II) SUCH REPURCHASE OBLIGATION SHALL RANK AGAINST OTHER SIMILAR
REPURCHASE OBLIGATIONS WITH RESPECT TO SHARES OF COMMON STOCK ACCORDING TO
PRIORITY IN TIME OF THE EFFECTIVE DATE OF THE TERMINATION OF EMPLOYMENT GIVING
RISE TO SUCH REPURCHASE; PROVIDED, THAT ANY SUCH REPURCHASE OBLIGATIONS AS TO
WHICH A COMMON DATE DETERMINES PRIORITY SHALL BE OF EQUAL PRIORITY AND SHALL
SHARE PRO RATA IN ANY REPURCHASE PAYMENTS MADE PURSUANT TO CLAUSE (I) OF THIS
SECTION 6(B); AND PROVIDED, FURTHER, THAT ANY REPURCHASE COMMITMENT ARISING FROM
DEATH, DISABILITY, OR RETIREMENT OR THE COMPARABLE PROVISIONS OF ANY OTHER
APPLICABLE SUBSCRIPTION AGREEMENTS SHALL HAVE PRIORITY OVER ANY OTHER REPURCHASE
OBLIGATION.
8
(C)
PURCHASE PRICE ADJUSTMENT.
IN THE EVENT THAT A REPURCHASE OF
SHARES FROM THE PURCHASER IS DELAYED PURSUANT TO THIS SECTION 6, THE PURCHASE
PRICE PER SHARE WHEN THE REPURCHASE OF SUCH SHARES EVENTUALLY TAKES PLACE AS
CONTEMPLATED BY SECTION 6(B) SHALL EQUAL THE SUM OF (I) THE PURCHASE PRICE
DETERMINED IN ACCORDANCE WITH SECTION 4 AT THE TIME THAT THE REPURCHASE OF SUCH
SHARES WOULD HAVE OCCURRED BUT FOR THE OPERATION OF THIS SECTION 6, PLUS (II)