(AS DEFINED IN THE SECURITIES
PURCHASE AGREEMENT) OR ANY GREENSHOE THEREON PURSUANT TO CUSTOMARY TERMS AND
CONDITIONS, WITH AN ISSUE PRICE PER SHARE OF COMMON STOCK THAT IS NO LESS THAN
THE ISSUE PRICE PER SHARE OF COMMON STOCK IN THE FOLLOW-ON OFFERING, AND WHICH
CLOSES WITHIN 30 DAYS OF THE FOLLOW-ON OFFERING (THE "GREENSHOE"); AND (IV) UPON
EXERCISE OF ANY OPTIONS WHICH ARE OUTSTANDING ON THE DAY IMMEDIATELY PRECEDING
THE SUBSCRIPTION DATE, PROVIDED THAT THE TERMS OF SUCH OPTIONS ARE NOT AMENDED,
MODIFIED OR CHANGED ON OR AFTER THE SUBSCRIPTION DATE; AND PROVIDED FURTHER THAT
THE EXPIRATION OR RELEASE OF THE HOLDER OF SUCH OPTIONS FROM ANY LOCK-UP
AGREEMENTS SHALL NOT BE DEEMED TO BE AN AMENDMENT, MODIFICATION OR CHANGE
THEREOF.
31
(O)
"FUNDAMENTAL TRANSACTION" MEANS THAT THE COMPANY SHALL, DIRECTLY
OR INDIRECTLY, IN ONE OR MORE RELATED TRANSACTIONS, (I) CONSOLIDATE OR MERGE
WITH OR INTO (WHETHER OR NOT THE COMPANY IS THE SURVIVING CORPORATION) ANOTHER
PERSON OR PERSONS, OR (II) SELL, ASSIGN, TRANSFER, CONVEY OR OTHERWISE DISPOSE
OF ALL OR SUBSTANTIALLY ALL OF THE PROPERTIES OR ASSETS OF THE COMPANY TO
ANOTHER PERSON, OR (III) ALLOW ANOTHER PERSON TO MAKE A PURCHASE, TENDER OR
EXCHANGE OFFER THAT IS ACCEPTED BY THE HOLDERS OF MORE THAN 50% OF THE
OUTSTANDING SHARES OF VOTING STOCK (NOT INCLUDING ANY SHARES OF VOTING STOCK
HELD BY THE PERSON OR PERSONS MAKING OR PARTY TO, OR ASSOCIATED OR AFFILIATED
WITH THE PERSONS MAKING OR PARTY TO, SUCH PURCHASE, TENDER OR EXCHANGE OFFER),
OR (IV) CONSUMMATE A STOCK PURCHASE AGREEMENT OR OTHER BUSINESS COMBINATION
(INCLUDING, WITHOUT LIMITATION, A REORGANIZATION, RECAPITALIZATION, SPIN-OFF OR
SCHEME OF ARRANGEMENT) WITH ANOTHER PERSON WHEREBY SUCH OTHER PERSON ACQUIRES
MORE THAN THE 50% OF THE OUTSTANDING SHARES OF VOTING STOCK (NOT INCLUDING ANY
SHARES OF VOTING STOCK HELD BY THE OTHER PERSON OR OTHER PERSONS MAKING OR PARTY
TO, OR ASSOCIATED OR AFFILIATED WITH THE OTHER PERSONS MAKING OR PARTY TO, SUCH
STOCK PURCHASE AGREEMENT OR OTHER BUSINESS COMBINATION), OR (V) REORGANIZE,
RECAPITALIZE OR RECLASSIFY ITS COMMON STOCK OR (VI) ANY "PERSON" OR "GROUP" (AS
THESE TERMS ARE USED FOR PURPOSES OF SECTIONS 13(D) AND 14(D) OF THE EXCHANGE
ACT) IS OR SHALL BECOME THE "BENEFICIAL OWNER" (AS DEFINED IN RULE 13D-3 UNDER
THE EXCHANGE ACT), DIRECTLY OR INDIRECTLY, OF 50% OF THE AGGREGATE VOTING STOCK
OF THE COMPANY.
(P)
"GAAP" MEANS UNITED STATES GENERALLY ACCEPTED ACCOUNTING
PRINCIPLES, CONSISTENTLY APPLIED.
(Q)
"GREENSHOE PROCEEDS" MEANS THE NET PROCEEDS TO THE COMPANY FROM
THE GREENSHOE.
(R)
"HOLDER PRO RATA AMOUNT" MEANS A FRACTION (I) THE NUMERATOR OF
WHICH IS THE PRINCIPAL AMOUNT OF THIS NOTE ON THE CLOSING DATE AND (II) THE
DENOMINATOR OF WHICH IS THE AGGREGATE PRINCIPAL AMOUNT OF ALL NOTES ISSUED TO
THE INITIAL PURCHASERS PURSUANT TO THE SECURITIES PURCHASE AGREEMENT ON THE
CLOSING DATE.
(S)
"INDEBTEDNESS" OF ANY PERSON MEANS, WITHOUT DUPLICATION (I) ALL
INDEBTEDNESS FOR BORROWED MONEY, (II) ALL OBLIGATIONS ISSUED, UNDERTAKEN OR
ASSUMED AS THE DEFERRED PURCHASE PRICE OF PROPERTY OR SERVICES, INCLUDING
(WITHOUT LIMITATION)