THE INVESTOR WISHES TO SELL ANY OR ALL OF THE
INVESTOR SHARES PRIOR TO DECEMBER 31, 2009, THE COMPANY AND, TO THE EXTENT THAT
THE COMPANY DOES NOT FULLY EXERCISE ITS RIGHT OF FIRST REFUSAL, THE HOLDERS OF
COMMON STOCK SHALL HAVE SIX (6) MONTHS TO MATCH THE OFFER OF ANY THIRD PARTY TO
PURCHASE ALL, BUT NOT LESS THAN ALL, OF THE INVESTOR SHARES TO BE TRANSFERRED
(THE "RIGHT OF FIRST REFUSAL").
THE INVESTOR SHALL GIVE THE COMPANY WRITTEN
NOTICE OF ITS INTENTION TO SELL ANY OR ALL OF THE INVESTOR SHARES, DESCRIBING IN
REASONABLE DETAIL THE CONSIDERATION FOR SUCH INVESTOR SHARES, THE TERMS AND
CONDITIONS UPON WHICH THE SALE IS TO OCCUR AND THE IDENTITY, BACKGROUND AND
OWNERSHIP (IF APPLICABLE) OF THE THIRD PARTY, AND SUCH NOTICE SHALL CONSTITUTE A
BINDING OFFER BY THE INVESTOR TO SELL THE SHARES TO THE COMPANY FOR SUCH
CONSIDERATION (OR THE CASH EQUIVALENT THEREOF) AND ON SUCH TERMS AND
CONDITIONS.
IN THE EVENT THE CONSIDERATION SPECIFIED IN SUCH WRITTEN NOTICE IS
PAYABLE IN A FORM OTHER THAN CASH, THE VALUE OF ANY NON-CASH CONSIDERATION SHALL
BE DETERMINED BY A NATIONALLY RECOGNIZED INVESTMENT BANKING FIRM, EXPERIENCED IN
SUCH VALUATION MATTERS AND MUTUALLY AGREED UPON BY THE COMPANY AND THE INVESTOR,
AND THE COMPANY SHALL PAY THE CASH EQUIVALENT OF SUCH NON-CASH CONSIDERATION.
ALL CONSIDERATION SHALL BE DUE AND PAYABLE AT THE CLOSING OF THE TRANSACTION.
THE INVESTOR AND THE COMPANY SHALL EACH BEAR FIFTY PERCENT (50%) OF ALL COSTS
RELATING TO THE VALUATION BY THE INVESTMENT BANKING FIRM REFERENCED ABOVE.
(B)
THE COMPANY SHALL HAVE SIX (6) MONTHS FROM THE DATE OF DELIVERY OF
ANY SUCH NOTICE TO AGREE TO PURCHASE ALL OF THE INVESTOR SHARES TO BE
TRANSFERRED, FOR THE CONSIDERATION AND UPON THE TERMS AND CONDITIONS SPECIFIED
IN THE NOTICE, BY DELIVERING WRITTEN
14
NOTICE TO THE INVESTOR.
IF THE COMPANY DOES NOT ELECT TO PURCHASE ALL OF THE
INVESTOR SHARES PURSUANT TO THIS SECTION 7.1 AND THE HOLDERS OF COMMON STOCK OF
THE COMPANY ELECT TO PURCHASE THE INVESTOR SHARES TO BE TRANSFERRED, THE
INVESTOR SHARES PURCHASED BY THE HOLDERS OF COMMON STOCK OF THE COMPANY SHALL BE
ALLOCATED PRO RATA ACCORDING TO THE THEN CURRENT NUMBER OF SHARES OWNED BY EACH
SUCH HOLDER.
TO THE EXTENT THE COMPANY AND THE HOLDERS OF COMMON STOCK ELECT
NOT TO PURCHASE THE INVESTOR SHARES BEING OFFERED, INVESTOR MAY, WITHIN THIRTY
(30) DAYS AFTER RECEIPT OF SUCH NOTICE FROM THE COMPANY OR THE HOLDERS, TRANSFER
SUCH SHARES TO THE THIRD PARTY IDENTIFIED IN THE ORIGINAL NOTICE FOR THE
CONSIDERATION AND UPON TERMS AND CONDITIONS NO MORE FAVORABLE TO THE THIRD PARTY
THAN OFFERED TO THE COMPANY AND OTHER HOLDERS OF COMMON STOCK IN THE ORIGINAL
NOTICE.
ANY INVESTOR SHARES NOT TRANSFERRED WITHIN SUCH THIRTY (30) DAY PERIOD
SHALL BE RE-OFFERED TO THE COMPANY AND THE OTHER HOLDERS OF COMMON STOCK UNDER
THIS SECTION 7.1 PRIOR TO ANY SUBSEQUENT TRANSFER.
7.2
Termination of Right of First Refusal.
The Right of First Refusal
set