SALE AND PURCHASE OF, SUCH NEW SECURITIES.
(D)
FAILURE OF PURCHASE.
IN THE EVENT THE INVESTOR FAILS TO EXERCISE
ITS RIGHTS PROVIDED IN THIS SECTION 4.3 WITHIN SAID 10 BUSINESS DAY PERIOD OR,
IF SO EXERCISED, THE INVESTOR IS UNABLE TO CONSUMMATE SUCH PURCHASE WITHIN THE
TIME PERIOD SPECIFIED IN SECTION 4.3(C) ABOVE
36
BECAUSE OF ITS FAILURE TO OBTAIN ANY REQUIRED REGULATORY OR STOCKHOLDER CONSENT
OR APPROVAL, THE COMPANY SHALL THEREAFTER BE ENTITLED (DURING THE PERIOD OF 60
DAYS FOLLOWING THE CONCLUSION OF THE APPLICABLE PERIOD) TO SELL OR ENTER INTO AN
AGREEMENT (PURSUANT TO WHICH THE SALE OF THE NEW SECURITIES COVERED THEREBY
SHALL BE CONSUMMATED, IF AT ALL, WITHIN 90 DAYS FROM THE DATE OF SAID AGREEMENT)
TO SELL THE NEW SECURITIES NOT ELECTED TO BE PURCHASED PURSUANT TO THIS
SECTION 4.3 BY THE INVESTOR OR WHICH THE INVESTOR IS UNABLE TO PURCHASE BECAUSE
OF SUCH FAILURE TO OBTAIN ANY SUCH CONSENT OR APPROVAL, AT A PRICE AND UPON
TERMS NO MORE FAVORABLE IN THE AGGREGATE TO THE PURCHASERS OF SUCH SECURITIES
THAN WERE SPECIFIED IN THE COMPANY'S NOTICE TO THE INVESTOR.
NOTWITHSTANDING
THE FOREGOING, IF SUCH SALE IS SUBJECT TO THE RECEIPT OF ANY REGULATORY OR
STOCKHOLDER APPROVAL OR CONSENT OR THE EXPIRATION OF ANY WAITING PERIOD, THE
TIME PERIOD DURING WHICH SUCH SALE MAY BE CONSUMMATED SHALL BE EXTENDED UNTIL
THE EXPIRATION OF FIVE BUSINESS DAYS AFTER ALL SUCH APPROVALS OR CONSENTS HAVE
BEEN OBTAINED OR WAITING PERIODS EXPIRED, BUT IN NO EVENT SHALL SUCH TIME PERIOD
EXCEED 180 DAYS FROM THE DATE OF THE APPLICABLE AGREEMENT WITH RESPECT TO SUCH
SALE.
IN THE EVENT THE COMPANY HAS NOT SOLD THE NEW SECURITIES OR ENTERED INTO
AN AGREEMENT TO SELL THE NEW SECURITIES WITHIN SAID 60-DAY PERIOD (OR SOLD AND
ISSUED NEW SECURITIES IN ACCORDANCE WITH THE FOREGOING WITHIN 90 DAYS FROM THE
DATE OF SAID AGREEMENT (AS SUCH PERIOD MAY BE EXTENDED IN THE MANNER DESCRIBED
ABOVE FOR A PERIOD NOT TO EXCEED 180 DAYS FROM THE DATE OF SAID AGREEMENT)), THE
COMPANY SHALL NOT THEREAFTER OFFER, ISSUE OR SELL SUCH NEW SECURITIES WITHOUT
FIRST OFFERING SUCH SECURITIES TO THE INVESTOR IN THE MANNER PROVIDED ABOVE.
(E)
NON-CASH CONSIDERATION.
IN THE CASE OF THE OFFERING OF SECURITIES
FOR A CONSIDERATION IN WHOLE OR IN PART OTHER THAN CASH, INCLUDING SECURITIES
ACQUIRED IN EXCHANGE THEREFOR (OTHER THAN SECURITIES BY THEIR TERMS SO
EXCHANGEABLE), THE CONSIDERATION OTHER THAN CASH SHALL BE DEEMED TO BE THE FAIR
VALUE THEREOF AS DETERMINED BY THE BOARD OF DIRECTORS; PROVIDED, HOWEVER, THAT
SUCH FAIR VALUE AS DETERMINED BY THE BOARD OF DIRECTORS SHALL NOT EXCEED THE
AGGREGATE MARKET PRICE OF THE SECURITIES BEING OFFERED AS OF THE DATE THE BOARD
OF DIRECTORS AUTHORIZES THE OFFERING OF SUCH SECURITIES.
(F)
COOPERATION.
THE COMPANY AND THE INVESTOR SHALL COOPERATE IN
GOOD FAITH TO FACILITATE THE EXERCISE OF THE INVESTOR'S RIGHTS UNDER THIS
SECTION 4.3, INCLUDING TO SECURE ANY REQUIRED APPROVALS OR CONSENTS.]
4.4
[Governance Matters.(17)
(A)
EXCEPT AS PROVIDED IN SECTION