CONVERTIBLE PREFERRED STOCK IF SUCH CONVERSION WOULD RESULT IN SUCH INVESTOR
OWNING, TOGETHER WITH ITS AFFILIATES, MORE THAN 14.9% (OR, IN THE CASES OF
CASTLE CREEK AND PATRIOT ONLY, 19.9%) OF THE ISSUED AND OUTSTANDING SHARES OF
COMMON STOCK OF THE COMPANY AFTER GIVING EFFECT TO SUCH CONVERSION.
(G)
NO CHANGE OF CONTROL.
THE COMPANY SHALL USE REASONABLE BEST
EFFORTS TO OBTAIN ALL NECESSARY IRREVOCABLE WAIVERS AND MAKE ALL APPROPRIATE
DETERMINATIONS SO THAT THE ISSUANCE OF CONVERTIBLE PREFERRED STOCK AND
CONVERSION SECURITIES TO THE INVESTORS, COLLECTIVELY, WILL NOT TRIGGER A "CHANGE
OF CONTROL" OR OTHER SIMILAR PROVISION IN ANY OF THE AGREEMENTS TO WHICH THE
COMPANY OR ANY OF ITS SUBSIDIARIES IS A PARTY, INCLUDING WITHOUT LIMITATION ANY
EMPLOYMENT, "CHANGE IN CONTROL," SEVERANCE OR OTHER AGREEMENTS AND ANY BENEFIT
PLAN, WHICH RESULTS IN PAYMENTS TO THE COUNTERPARTY OR THE ACCELERATION OF
VESTING OF BENEFITS.
(H)
CERTIFICATE OF DESIGNATIONS.
THE COMPANY SHALL FILE THE
CERTIFICATE OF DESIGNATIONS IN THE FORM ATTACHED TO THIS AGREEMENT AS EXHIBIT A
WITH THE DELAWARE SECRETARY OF STATE, AND SUCH CERTIFICATE OF DESIGNATIONS SHALL
BE IN FULL FORCE AND EFFECT AS OF THE CLOSING DATE.
(I)
ACCESS, INFORMATION AND CONFIDENTIALITY.
(I)
FOR SO LONG AS ANY INSTITUTIONAL INVESTOR OWNS CONVERTIBLE
PREFERRED STOCK CONVERTIBLE INTO, OR CONVERSION SECURITIES REPRESENTING, AT
LEAST 4.9% OF THE OUTSTANDING SHARES OF COMMON STOCK (IN EACH CASE TREATING EACH
CONVERSION SECURITY THAT IS NOT A SHARE OF COMMON STOCK AS IF IT HAD CONVERTED
INTO COMMON STOCK), THE COMPANY WILL (A) PERMIT SUCH INSTITUTIONAL INVESTOR TO
VISIT AND INSPECT, AT SUCH INSTITUTIONAL INVESTOR'S EXPENSE, THE PROPERTIES OF
THE COMPANY AND ITS SUBSIDIARIES, TO EXAMINE THE CORPORATE BOOKS AND TO DISCUSS
THE AFFAIRS, FINANCES AND ACCOUNTS OF THE COMPANY AND ITS SUBSIDIARIES WITH
PERSONNEL OF THE COMPANY, ALL UPON REASONABLE NOTICE AND AT SUCH REASONABLE
TIMES AND AS OFTEN AS SUCH INSTITUTIONAL INVESTOR MAY REASONABLY REQUEST, AND
(B) MAKE APPROPRIATE OFFICERS OF THE COMPANY AND ITS SUBSIDIARIES AVAILABLE
PERIODICALLY AND AT SUCH TIMES AS REASONABLY REQUESTED BY SUCH INSTITUTIONAL
INVESTOR FOR CONSULTATION WITH SUCH INSTITUTIONAL INVESTOR OR ITS DESIGNATED
REPRESENTATIVE WITH RESPECT TO MATTERS RELATING TO THE BUSINESS AND AFFAIRS OF
THE COMPANY AND SUBSIDIARIES OF THE COMPANY. ANY INVESTIGATION PURSUANT TO THIS
SECTION 6(I) SHALL BE CONDUCTED DURING NORMAL BUSINESS HOURS AND IN SUCH MANNER
AS NOT TO INTERFERE UNREASONABLY WITH THE CONDUCT OF THE BUSINESS OF THE
COMPANY, AND NOTHING HEREIN SHALL REQUIRE THE COMPANY OR ANY OF ITS SUBSIDIARIES
TO DISCLOSE ANY INFORMATION TO THE EXTENT (X) PROHIBITED BY APPLICABLE LAW OR
REGULATION, (Y) THAT THE COMPANY REASONABLY BELIEVES TO BE COMPETITIVELY
SENSITIVE PROPRIETARY INFORMATION (EXCEPT TO THE EXTENT SUCH INSTITUTIONAL
INVESTOR PROVIDES ASSURANCES REASONABLY ACCEPTABLE TO THE COMPANY THAT SUCH
INFORMATION SHALL NOT BE USED BY SUCH INSTITUTIONAL INVESTOR
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OR ITS AFFILIATES TO COMPETE WITH THE COMPANY AND THE SUBSIDIARIES OF THE
COMPANY), OR (Z) THAT SUCH DISCLOSURE WOULD REASONABLY BE EXPECTED TO CAUSE A
VIOLATION OF ANY AGREEMENT TO WHICH THE COMPANY OR ANY SUBSIDIARY OF