PREFERRED STOCK) THEN, FOR
SO LONG AS WP OWNS AT LEAST TWO-THIRDS OF (I) THE AGGREGATE NUMBER OF SHARES
ACQUIRED BY IT ON THE INITIAL CLOSING DATE, OR (II) IN THE EVENT THE EXCHANGE
OCCURS, THE EXCHANGE DATE SHARES, THE COMPANY SHALL:
(1)
GIVE WRITTEN NOTICE TO WP SETTING FORTH IN
REASONABLE DETAIL (A) THE DESIGNATION AND ALL OF THE TERMS AND PROVISIONS OF THE
SECURITIES PROPOSED TO BE ISSUED (THE "PROPOSED SECURITIES"), INCLUDING, WHERE
APPLICABLE, THE VOTING POWERS, PREFERENCES AND RELATIVE PARTICIPATING, OPTIONAL
OR OTHER SPECIAL RIGHTS, AND THE QUALIFICATION, LIMITATIONS OR RESTRICTIONS
THEREOF AND INTEREST RATE AND MATURITY; (B) THE PRICE AND OTHER TERMS OF THE
PROPOSED SALE OF SUCH SECURITIES; (C) THE AMOUNT OF SUCH PROPOSED SECURITIES;
AND (D) SUCH OTHER INFORMATION AS WP MAY REASONABLY REQUEST IN ORDER TO EVALUATE
THE PROPOSED ISSUANCE; AND
(2)
SUBJECT TO APPLICABLE LAW AND THE RULES
AND REGULATIONS OF THE SEC AND NASDAQ STOCK MARKET, OFFER TO ISSUE TO WP UPON
THE TERMS DESCRIBED IN THE NOTICE DELIVERED PURSUANT TO SECTION 5.5(A)(1) ABOVE,
A PORTION OF THE PROPOSED SECURITIES EQUAL TO (I) THE PERCENTAGE OF THE COMMON
STOCK (INCLUDING THE EXCHANGE SHARES ISSUABLE UPON THE EXCHANGE, IF THE EXCHANGE
HAS NOT OCCURRED) OWNED BY WP IMMEDIATELY PRIOR TO THE ISSUANCE OF THE EQUITY
SECURITIES RELATIVE TO THE TOTAL NUMBER OF SHARES OF COMMON STOCK (INCLUDING THE
EXCHANGE SHARES ISSUABLE UPON THE EXCHANGE, IF THE EXCHANGE HAS NOT OCCURRED)
OUTSTANDING IMMEDIATELY PRIOR TO THE ISSUANCE OF THE EQUITY SECURITIES,
MULTIPLIED BY (II) THE TOTAL NUMBER OF PROPOSED SECURITIES.
NOTWITHSTANDING THE
FOREGOING, THE COMPANY SHALL NOT BE REQUIRED TO OFFER OR SELL SUCH PROPOSED
SECURITIES TO WP IF IT WOULD CAUSE THE COMPANY TO BE IN VIOLATION OF APPLICABLE
FEDERAL SECURITIES LAWS BY VIRTUE OF SUCH OFFER OR SALE.
(B)
WP MUST EXERCISE ITS PURCHASE RIGHTS
HEREUNDER WITHIN 5 BUSINESS DAYS AFTER RECEIPT OF SUCH NOTICE FROM THE COMPANY.
TO THE EXTENT THAT THE COMPANY OFFERS TWO OR MORE SECURITIES IN UNITS, WP MUST
PURCHASE SUCH UNITS AS A WHOLE AND WILL NOT BE GIVEN THE OPPORTUNITY TO PURCHASE
ONLY ONE OF THE SECURITIES MAKING UP SUCH UNIT.
(C)
UPON THE EXPIRATION OF THE OFFERING PERIOD
DESCRIBED ABOVE, THE COMPANY WILL BE FREE TO SELL SUCH PROPOSED SECURITIES THAT
WP HAS NOT ELECTED TO PURCHASE DURING THE 90 DAYS FOLLOWING SUCH EXPIRATION ON
TERMS AND CONDITIONS NO MORE FAVORABLE TO THE PURCHASERS THEREOF THAN THOSE
OFFERED TO WP.
(D)
THE ELECTION BY WP NOT TO EXERCISE ITS
SUBSCRIPTION RIGHTS UNDER THIS SECTION 5.5 IN ANY ONE INSTANCE SHALL NOT AFFECT
ITS RIGHT (OTHER THAN IN RESPECT OF A REDUCTION IN ITS PERCENTAGE HOLDINGS) AS
TO ANY SUBSEQUENT PROPOSED ISSUANCE.
ANY SALE OF SUCH SECURITIES BY THE COMPANY
WITHOUT FIRST GIVING WP THE RIGHTS DESCRIBED IN THIS SECTION 5.5 SHALL BE VOID
AND OF NO FORCE AND EFFECT.
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(E)
THE SUBSCRIPTION RIGHTS ESTABLISHED BY THIS
SECTION 5.5 SHALL NOT APPLY TO, AND SHALL TERMINATE UPON A CONSOLIDATION,
MERGER, REORGANIZATION OR OTHER