PUBLIC SALES PRIOR TO THE DATE HEREOF AND
(Y) AS OF THE DATE OF SUCH TRANSFER, THE AGGREGATE NUMBER OF SHARES OF
SECURITIES PREVIOUSLY TRANSFERRED BY PURCHASER AND PERMITTED TRANSFEREES AFTER
THE DATE HEREOF PURSUANT TO THIS CLAUSE (II); PROVIDED THAT ANY IN-KIND
DISTRIBUTIONS OF SHARES OF COMMON STOCK BY THE INVESTORS TO THEIR LIMITED
PARTNERS SHALL BE DEEMED TO BE A PUBLIC SALE FOR PURPOSES OF THIS
SECTION 4(B)(II); PROVIDED FURTHER THAT THE RESTRICTIONS CONTAINED IN THIS
SECTION 4 WILL CONTINUE TO BE APPLICABLE TO THE SECURITIES AFTER ANY TRANSFER OF
THE TYPE REFERRED TO IN CLAUSE (I) ABOVE AND THE TRANSFEREES OF SUCH SECURITIES
MUST AGREE IN WRITING TO BE BOUND BY THE PROVISIONS OF THIS AGREEMENT.
ANY
TRANSFEREE OF SECURITIES PURSUANT TO A TRANSFER IN ACCORDANCE WITH THE
PROVISIONS OF CLAUSE (I) OF THIS SECTION 4(B) IS HEREIN REFERRED TO AS A
"PERMITTED TRANSFEREE."
UPON THE TRANSFER OF SECURITIES PURSUANT TO THIS
SECTION 4(B), THE TRANSFERRING HOLDER OF SECURITIES WILL DELIVER A WRITTEN
NOTICE (A "TRANSFER
6
NOTICE") TO THE COMPANY.
IN THE CASE OF A TRANSFER PURSUANT TO CLAUSE
(I) HEREOF, THE TRANSFER NOTICE WILL DISCLOSE IN REASONABLE DETAIL THE IDENTITY
OF THE PERMITTED TRANSFEREE(S).
(C)
TERMINATION OF RESTRICTIONS.
THE RESTRICTIONS SET FORTH IN THIS
SECTION 4 WILL CONTINUE WITH RESPECT TO EACH SHARE OF SECURITIES UNTIL THE
EARLIER OF (I) THE DATE ON WHICH SUCH SHARE OF SECURITIES HAS BEEN TRANSFERRED
IN A PUBLIC SALE PERMITTED BY THIS SECTION 4, OR (II) THE CONSUMMATION OF A SALE
OF THE COMPANY.
5.
ADDITIONAL RESTRICTIONS ON TRANSFER OF SECURITIES.
(A)
LEGEND.
THE CERTIFICATES REPRESENTING THE SECURITIES WILL BEAR A
LEGEND IN SUBSTANTIALLY THE FOLLOWING FORM:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED AS OF
MAY 10, 2007, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN EXEMPTION FROM REGISTRATION
THEREUNDER.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO
ADDITIONAL RESTRICTIONS ON TRANSFER, CERTAIN REPURCHASE OPTIONS AND CERTAIN
OTHER AGREEMENTS SET FORTH IN A SECOND AMENDED AND RESTATED SECURITIES PURCHASE
AGREEMENT AMONG THE COMPANY, THE PURCHASER OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE AND OTHER PARTIES, DATED AS OF JANUARY 28, 2008, AS AMENDED.
A COPY
OF SUCH AGREEMENT MAY BE OBTAINED BY THE HOLDER HEREOF AT THE COMPANY'S
PRINCIPAL PLACE OF BUSINESS WITHOUT CHARGE."
(B)
OPINION OF COUNSEL.
NO HOLDER OF SECURITIES MAY TRANSFER ANY
SECURITIES (EXCEPT PURSUANT TO SECTION 3 OR 4(B) OF THIS AGREEMENT OR AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT) WITHOUT FIRST
DELIVERING TO THE COMPANY A WRITTEN NOTICE DESCRIBING IN REASONABLE DETAIL THE
PROPOSED TRANSFER, TOGETHER WITH AN OPINION OF COUNSEL (REASONABLY ACCEPTABLE IN
FORM AND SUBSTANCE TO THE COMPANY) THAT NEITHER REGISTRATION NOR QUALIFICATION
UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS IS REQUIRED IN
CONNECTION WITH SUCH TRANSFER.
IN ADDITION, IF THE HOLDER OF THE SECURITIES
DELIVERS TO