COMPANY'S
STOCKHOLDERS AS SOON AS PRACTICABLE AFTER CLEARANCE THEREOF BY THE COMMISSION
STAFF, AND, SUBJECT TO THE FIDUCIARY DUTIES OF THE BOARD OF DIRECTORS, SHALL USE
ITS REASONABLE BEST EFFORTS TO SOLICIT PROXIES FOR SUCH STOCKHOLDER APPROVAL.
NO FILING OF, OR AMENDMENT OR SUPPLEMENT TO, OR CORRESPONDENCE WITH THE
COMMISSION OR ITS STAFF WITH RESPECT TO, THE PROXY STATEMENT WILL BE MADE BY THE
COMPANY WITHOUT PROVIDING THE INVESTORS A REASONABLE OPPORTUNITY TO REVIEW AND
COMMENT THEREON (PROVIDED THAT THIS SENTENCE SHALL NOT APPLY TO ANY CURRENT OR
PERIODIC REPORT FILED BY THE COMPANY UNDER THE EXCHANGE ACT). AS SOON AS
REASONABLY PRACTICABLE FOLLOWING THE DATE HEREOF, THE COMPANY, CASTLE CREEK,
PATRIOT AND RELATIONAL SHALL NEGOTIATE IN GOOD FAITH AND AGREE UPON THE FORM OF
AMENDMENT TO THE
31
CERTIFICATE OF INCORPORATION TO GIVE EFFECT TO CLAUSE (II) ABOVE AND, IN THE
EVENT THAT STOCKHOLDER APPROVAL OF SUCH AMENDMENT IS NOT OBTAINED AT THE SPECIAL
MEETING OF STOCKHOLDERS, A FORM OF CERTIFICATE OF DESIGNATIONS WITH RESPECT TO A
SERIES B PREFERRED STOCK OF THE COMPANY THAT SHALL PROVIDE (W) EXPRESSLY THAT
SUCH SERIES B PREFERRED STOCK HAS NO VOTING RIGHTS; (X) FOR PARTICIPATION BY THE
HOLDERS OF SUCH SERIES B PREFERRED STOCK TOGETHER WITH THE HOLDERS OF COMMON
STOCK IN ANY DIVIDEND DECLARED WITH RESPECT TO THE COMMON STOCK OR ANY
DISTRIBUTION UPON LIQUIDATION, WINDING-UP OR DISSOLUTION OF THE COMPANY; (Y) TO
THE EXTENT THE PARTIES REASONABLY DETERMINE THAT A PREFERENCE RIGHT IS REQUIRED
UNDER THE DGCL, FOR A LIQUIDATION PREFERENCE OF NO MORE THAN $0.01 PER SHARE;
AND (Z) FOR CONVERSION OF SUCH SHARES OF SERIES B PREFERRED STOCK INTO SHARES OF
COMMON STOCK UPON TRANSFER TO ANY PERSON OTHER THAN CASTLE CREEK, PATRIOT OR
RELATIONAL OR ONE OF THEIR RESPECTIVE AFFILIATES ON A SHARE-FOR-SHARE BASIS
(SUBJECT TO CUSTOMARY ANTI-DILUTION ADJUSTMENTS).
IN THE EVENT THAT THE
STOCKHOLDER APPROVAL OF THE AMENDMENT TO THE CERTIFICATE OF INCORPORATION
CONTEMPLATED BY CLAUSE (II) ABOVE IS NOT OBTAINED AT THE SPECIAL MEETING OF
STOCKHOLDERS, THE COMPANY SHALL PROMPTLY THEREAFTER FILE WITH THE DELAWARE
SECRETARY OF STATE THE CERTIFICATE OF DESIGNATIONS CONTEMPLATED BY THE
IMMEDIATELY PRECEDING SENTENCE.
SECTION 10.
REGISTRATION RIGHTS.
(A)
REGISTRATION.
(I)
SUBJECT TO THE TERMS AND CONDITIONS OF
THIS AGREEMENT, THE COMPANY COVENANTS AND AGREES THAT NO LATER THAN THE DATE
THAT IS SIX MONTHS AFTER THE INITIAL CLOSING DATE, THE COMPANY SHALL HAVE
PREPARED AND FILED WITH THE COMMISSION A SHELF REGISTRATION STATEMENT COVERING
ALL REGISTRABLE SECURITIES, AND, TO THE EXTENT THE SHELF REGISTRATION STATEMENT
HAS NOT THERETOFORE BEEN DECLARED EFFECTIVE, THE COMPANY SHALL USE REASONABLE
BEST EFFORTS TO CAUSE SUCH SHELF REGISTRATION STATEMENT TO BE DECLARED OR BECOME
EFFECTIVE NOT LATER THAN THE DATE THAT IS ONE YEAR AFTER THE INITIAL CLOSING
DATE AND TO KEEP SUCH SHELF REGISTRATION STATEMENT CONTINUOUSLY EFFECTIVE AND IN
COMPLIANCE WITH THE SECURITIES ACT AND USABLE FOR RESALE OF SUCH REGISTRABLE
SECURITIES FOR A PERIOD FROM THE DATE OF ITS INITIAL EFFECTIVENESS UNTIL SUCH
TIME AS THERE ARE NO REGISTRABLE SECURITIES REMAINING (INCLUDING