SECURITIES WHILE IN POSSESSION
OF MATERIAL, NON-PUBLIC INFORMATION CONCERNING THE COMPANY, AND (II) ANY
REGISTRATION RIGHTS SET FORTH IN SUCH SUBSEQUENT PLACEMENT DOCUMENTS SHALL,
UNLESS PREVIOUSLY CONSENTED TO IN WRITING BY THE BUYER OR THE MAJORITY HOLDERS
(AS DEFINED IN THE REGISTRATION RIGHTS AGREEMENT), NOT MATERIALLY INFRINGE THE
REGISTRATION RIGHTS CONTAINED IN THE REGISTRATION RIGHTS AGREEMENT.
(8)
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS SECTION 4(J)
AND UNLESS OTHERWISE AGREED TO BY THE BUYER, THE COMPANY SHALL EITHER CONFIRM IN
WRITING TO THE BUYER 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 BUYER WILL
NOT BE IN POSSESSION OF MATERIAL NON-PUBLIC INFORMATION AND THE BOARD'S
FIDUCIARY DUTIES SHALL BE FULFILLED, BY THE NINETIETH (90TH) DAY FOLLOWING
DELIVERY OF THE OFFER NOTICE. IF BY THE NINETIETH (90TH) 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 BUYER, SUCH TRANSACTION SHALL BE
DEEMED TO HAVE BEEN ABANDONED AND THE BUYER 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 THE BUYER WITH ANOTHER OFFER NOTICE AND
THE BUYER WILL AGAIN HAVE THE RIGHT OF PARTICIPATION SET FORTH IN THIS SECTION
4(J)(III). THE COMPANY SHALL NOT BE PERMITTED TO DELIVER MORE THAN ONE SUCH
OFFER NOTICE TO THE BUYER IN ANY SIXTY (60) DAY PERIOD.
(K)
PUBLIC INFORMATION. AT ANY TIME DURING THE PERIOD COMMENCING
FROM THE SIX (6) MONTH ANNIVERSARY OF THE CLOSING DATE AND ENDING AT SUCH TIME
THAT ALL OF THE COMMON SHARES, IF A REGISTRATION STATEMENT IS NOT AVAILABLE FOR
THE RESALE OF ALL OF THE COMMON SHARES, MAY BE SOLD WITHOUT RESTRICTION OR
LIMITATION PURSUANT TO RULE 144 AND WITHOUT THE REQUIREMENT FOR THE COMPANY TO
BE IN COMPLIANCE WITH RULE 144(C), IF THE COMPANY SHALL (I) FAIL FOR ANY REASON
TO SATISFY THE CURRENT PUBLIC INFORMATION REQUIREMENTS OF RULE 144(C) OR (II)
HAVE EVER BEEN AN ISSUER DESCRIBED IN RULE 144(I)(1)(I) OR BECOMES SUCH AN
ISSUER, AND SHALL FAIL TO SATISFY ANY CONDITION SET FORTH IN RULE 144(I)(2)
(EACH, A "PUBLIC INFORMATION FAILURE"), THEN THE COMPANY SHALL BE DEEMED IN
BREACH OF THIS SECTION 4(K).
24
(L)
BOARD MATTERS.
(I)
AS LONG AS THE BUYER, TOGETHER WITH ITS AFFILIATES,
"BENEFICIALLY OWN" (AS SET FORTH IN RULE 13D-3 AND RULE 13D-5(B)(L) OF THE 1934
ACT) SHARES OF COMMON STOCK, IF ANY DIRECTOR DESIGNEE CEASES TO BE A MEMBER OF
THE BOARD FOR ANY REASON THEN THE BUYER WILL BE ENTITLED TO RECOMMEND, SUBJECT
TO THE LIMITATIONS SET FORTH IN SECTION 4(L)(IV), FOR CONSIDERATION BY THE
BOARD, ANOTHER INDIVIDUAL (A "SUCCESSOR DESIGNEE") TO SERVE AS A DIRECTOR IN
PLACE