REGISTER THE SHARES UNDER
ANY SUCH LAW OR TO QUALIFY AS A FOREIGN CORPORATION OR FILE ANY CONSENT TO
SERVICE OF PROCESS UNDER THE LAWS OF ANY JURISDICTION OR SUBJECT ITSELF TO
TAXATION AS DOING BUSINESS IN ANY SUCH JURISDICTION.
9.
CERTAIN RESTRICTIONS ON REPURCHASES.
(A)
FINANCING AGREEMENTS, ETC.
NOTWITHSTANDING
ANY OTHER PROVISION OF THIS AGREEMENT, THE COMPANY SHALL NOT BE OBLIGATED OR
PERMITTED TO PAY THE PURCHASE PRICE FOR ANY SHARES THAT THE COMPANY MAY ELECT TO
PURCHASE FROM THE PURCHASER PURSUANT TO SECTION 5 IF (I) THE PAYMENT OF SUCH
PURCHASE PRICE WOULD RESULT IN A VIOLATION OF THE TERMS OR PROVISIONS OF, OR A
DEFAULT OR AN EVENT OF DEFAULT UNDER, ANY FINANCING OR SECURITY AGREEMENT OR
DOCUMENT ENTERED INTO BY THE COMPANY OR ANY OF ITS SUBSIDIARIES PRIOR TO THE
DATE HEREOF, ANY REFUNDING THEREOF, OR IN CONNECTION WITH THE OPERATIONS OF THE
COMPANY OR THE SUBSIDIARIES FROM TIME TO TIME (SUCH AGREEMENTS AND DOCUMENTS, AS
EACH MAY BE AMENDED, MODIFIED OR SUPPLEMENTED FROM TIME TO TIME, ARE REFERRED TO
HEREIN AS THE "FINANCING AGREEMENTS"), IN EACH CASE AS THE SAME MAY BE AMENDED,
MODIFIED OR SUPPLEMENTED FROM TIME TO TIME, (II) THE PAYMENT OF SUCH PURCHASE
PRICE WOULD VIOLATE ANY OF THE TERMS OR PROVISIONS OF THE CERTIFICATE OF
INCORPORATION OF THE COMPANY OR (III) THE COMPANY HAS NO FUNDS LEGALLY AVAILABLE
THEREFOR UNDER THE GENERAL CORPORATION LAW OF THE STATE OF DELAWARE.
7
(B)
DELAY OF REPURCHASE.
IN THE EVENT THAT THE
PAYMENT OF THE PURCHASE PRICE FOR ANY SHARES BY THE COMPANY OTHERWISE PERMITTED
UNDER SECTION 5 IS PREVENTED SOLELY BY THE TERMS OF SECTION 9(A), (I) THE
PAYMENT OF SUCH PURCHASE PRICE WILL BE POSTPONED AND WILL BE MADE WITHOUT THE
APPLICATION OF FURTHER CONDITIONS OR IMPEDIMENTS (OTHER THAN AS SET FORTH IN
SECTION 5 HEREOF OR IN THIS SECTION 9) AT THE FIRST OPPORTUNITY THEREAFTER WHEN
THE COMPANY HAS FUNDS LEGALLY AVAILABLE THEREFOR AND WHEN THE PAYMENT OF SUCH
PURCHASE PRICE 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) THE PURCHASER'S
RIGHT TO RECEIVE PAYMENT OF SUCH PURCHASE PRICE SHALL RANK AGAINST OTHER SIMILAR
RIGHTS WITH RESPECT TO SHARES OF COMMON STOCK OR OPTIONS IN RESPECT THEREOF
ACCORDING TO PRIORITY IN TIME OF THE EFFECTIVE DATE OF THE EVENT GIVING RISE TO
ANY SUCH RIGHT, PROVIDED THAT ANY SUCH RIGHT AS TO WHICH A COMMON DATE
DETERMINES PRIORITY SHALL BE OF EQUAL PRIORITY AND SHALL SHARE PRO RATA IN ANY
PURCHASE PAYMENTS MADE PURSUANT TO CLAUSE (I) ABOVE.
(C)
PURCHASE PRICE ADJUSTMENT.
IN THE EVENT
THAT A REPURCHASE OF SHARES FROM THE PURCHASER IS DELAYED PURSUANT TO THIS
SECTION 9, THE PURCHASE PRICE PER SHARE WHEN THE REPURCHASE OF SUCH SHARES
EVENTUALLY TAKES PLACE AS CONTEMPLATED BY SECTION 9(B) SHALL EQUAL THE SUM OF
(I) THE PURCHASE PRICE DETERMINED IN ACCORDANCE WITH