terms
5
no less favorable to the Company than would be obtainable in a comparable arm's
length transaction with a person not an Affiliate.
SECTION 3.2
Preemptive Rights.
(A)
UNTIL THE EARLIER OF (I) THE TERMINATION OF
THIS AGREEMENT PURSUANT TO ARTICLE IV HEREUNDER OR (II) JANUARY 2, 2010, IF THE
COMPANY PROPOSES TO SELL ANY SUBORDINATED DEBT, EQUITY SECURITIES OR DERIVATIVE
SECURITIES (OTHER THAN EXCLUDED SHARES) (ALL SUCH SECURITIES, OTHER THAN
EXCLUDED SHARES, ARE REFERRED TO COLLECTIVELY HEREIN AS "ADDITIONAL
SECURITIES"), THE COMPANY SHALL FIRST GIVE TO EACH INVESTOR (AND, ONLY WITH
RESPECT TO PREFERRED SHARES, TO ANY HOLDERS) HOLDING SHARES OF SERIES B-1 STOCK
THE OPPORTUNITY (SUCH OPPORTUNITY BEING HEREIN REFERRED TO AS THE "PREEMPTIVE
RIGHT") TO PURCHASE (ON THE SAME TERMS AS SUCH ADDITIONAL SECURITIES ARE
PROPOSED TO BE SOLD) THE SAME PERCENTAGE OF SUCH ADDITIONAL SECURITIES PROPOSED
TO BE SOLD BY THE COMPANY AS EQUALS THE PERCENTAGE EQUAL TO THE QUOTIENT OF (I)
THE NUMBER OF SHARES OF COMMON STOCK INTO WHICH THE SHARES HELD BY SUCH INVESTOR
OF SERIES B-1 STOCK COULD BE CONVERTED, DIVIDED BY (II) THE SUM OF
(A)
ALL THE
OUTSTANDING SHARES OF COMMON STOCK OF THE COMPANY AND (B) THE NUMBER OF SHARES
OF COMMON STOCK INTO WHICH ALL THE SHARES OF SERIES B-1 STOCK HELD BY ALL
INVESTORS (AND HOLDERS, IF APPLICABLE) COULD BE CONVERTED; PROVIDED, HOWEVER,
THAT NO PREEMPTIVE RIGHTS SHALL APPLY (I) TO ANY ISSUANCE OF ADDITIONAL
SECURITIES PURSUANT TO A REGISTRATION STATEMENT FILED UNDER THE SECURITIES ACT;
OR (II) ANY ISSUANCE OF RIGHTS TO ALL HOLDERS OF COMMON STOCK (OR OF ALL VOTING
SECURITIES) OF THE COMPANY.
(B)
AT LEAST 20 DAYS PRIOR TO THE ISSUANCE BY
THE COMPANY OF ANY ADDITIONAL SECURITIES, THE COMPANY SHALL GIVE WRITTEN NOTICE
THEREOF (THE "PREEMPTIVE NOTICE") TO EACH INVESTOR AND HOLDERS (IF APPLICABLE).
THE PREEMPTIVE NOTICE SHALL SPECIFY (I) THE NAME AND ADDRESS OF THE BONA FIDE
INVESTOR (IF KNOWN) TO WHOM THE COMPANY PROPOSES TO ISSUE OR SELL ADDITIONAL
SECURITIES, (II) THE TOTAL AMOUNT OF CAPITAL TO BE RAISED BY THE COMPANY
PURSUANT TO THE ISSUANCE OR SALE OF ADDITIONAL SECURITIES, (III) THE NUMBER OF
SUCH ADDITIONAL SECURITIES PROPOSED TO BE ISSUED OR SOLD, (IV) THE PRICE AND
OTHER TERMS OF THE ADDITIONAL SECURITIES AND OF THEIR PROPOSED ISSUANCE OR SALE,
(V) THE NUMBER OF SUCH ADDITIONAL SECURITIES WHICH SUCH INVESTOR IS ENTITLED TO
PURCHASE (DETERMINED AS PROVIDED IN SECTION 3.2(A)), AND (VI) THE PERIOD DURING
WHICH SUCH INVESTOR MAY ELECT TO PURCHASE SUCH ADDITIONAL SECURITIES, WHICH
PERIOD SHALL EXTEND FOR AT LEAST 20 DAYS FOLLOWING THE RECEIPT BY SUCH INVESTOR
OR HOLDER, AS APPLICABLE, OF THE PREEMPTIVE NOTICE (THE "PREEMPTIVE ACCEPTANCE
PERIOD").
EACH INVESTOR WHO DESIRES TO PURCHASE ADDITIONAL SECURITIES SHALL
NOTIFY THE COMPANY WITHIN THE PREEMPTIVE ACCEPTANCE PERIOD OF THE NUMBER OF
ADDITIONAL SECURITIES HE WISHES TO PURCHASE, AS WELL AS THE NUMBER, IF ANY, OF
EXTRA ADDITIONAL SECURITIES ("EXTRA ADDITIONAL SECURITIES") HE WOULD BE WILLING
TO PURCHASE IN THE EVENT THAT ALL OF THE ADDITIONAL