ISSUED FREE AND CLEAR OF ANY LIENS OR ENCUMBRANCES) AT THE EXECUTIVE OFFICES OF
THE COMPANY AT THE CLOSING DATE FIXED BY THE COMPANY FOR THE SALE OF SUCH
APPLICABLE PREEMPTIVE SECURITIES; PROVIDED, THAT SUCH DATE IS NOT EARLIER THAN
THE ACTUAL CLOSING DATE WITH RESPECT TO ALL OTHER PURCHASERS OF SECURITIES
REFERRED TO IN THE COMPANY'S NOTICE OF INVENTION TO SELL.
IN THE EVENT THAT ANY
PROPOSED SALE IS FOR A CONSIDERATION OTHER THAN CASH, SUCH SECURITYHOLDER MAY
PAY CASH IN LIEU OF ALL (BUT NOT PART) OF SUCH OTHER CONSIDERATION, IN THE
AMOUNT DETERMINED REASONABLY AND IN GOOD FAITH BY THE BOARD TO REPRESENT THE
FAIR VALUE OF SUCH CONSIDERATION OTHER THAN CASH.
(D)
THE PREEMPTIVE RIGHTS CONTAINED IN THIS SECTION 6 SHALL NOT APPLY TO THE
ISSUANCE OF COMMON STOCK EQUIVALENTS OR OTHER EQUITY SECURITIES (I) AS A STOCK
DIVIDEND OR OTHER DISTRIBUTION OR UPON ANY SUBDIVISION, SPLIT OR COMBINATION OF
THE OUTSTANDING CAPITAL STOCK; (II) UPON CONVERSION, EXCHANGE OR REDEMPTION OF
ANY OUTSTANDING CONVERTIBLE OR EXCHANGEABLE SECURITIES; (III) UPON EXERCISE OF
ANY OUTSTANDING OPTIONS OR WARRANTS; (IV) TO ANY DIRECTOR OF THE COMPANY OR ANY
OF ITS SUBSIDIARIES AS COMPENSATION OR AS AN INCENTIVE FOR SERVICES; AND (V) AS
22
CONSIDERATION (WHETHER PARTIAL OR OTHERWISE) FOR THE PURCHASE BY THE COMPANY OR
ANY OF ITS SUBSIDIARIES OF ASSETS CONSTITUTING A BUSINESS UNIT OR OF THE STOCK
OR OTHER EQUITY SECURITIES OF ANY PERSON.
(E)
THE PROVISIONS OF THIS SECTION 6 SHALL TERMINATE UPON THE CONSUMMATION OF
AN IPO.
(F)
NOTHING IN THIS SECTION 6 SHALL BE DEEMED TO PREVENT BSMB OR ANY
AFFILIATE OF BSMB (THE "PURCHASING HOLDER") FROM PURCHASING FOR CASH ANY
PREEMPTIVE SECURITIES WITHOUT FIRST COMPLYING WITH THE PROVISIONS OF
SECTION 6(A); PROVIDED THAT IN CONNECTION WITH SUCH PURCHASE, (I) THE BOARD HAS
DETERMINED IN GOOD FAITH (1) THAT THE COMPANY NEEDS AN IMMEDIATE CASH
INVESTMENT, (2) THAT NO ALTERNATIVE FINANCING ON TERMS NO LESS FAVORABLE TO THE
COMPANY IN THE AGGREGATE THAN SUCH PURCHASE IS AVAILABLE WHICH IS OF A TYPE THAT
COULD BE OBTAINED WITHOUT HAVING TO COMPLY WITH SECTION 6(A) AND (3) THAT THE
DELAY CAUSED BY COMPLIANCE WITH THE PROVISIONS OF SECTION 6(A) IN CONNECTION
WITH SUCH INVESTMENT WOULD BE REASONABLY LIKELY TO CAUSE SEVERE AND IMMEDIATE
HARM TO THE COMPANY, (II) THE COMPANY GIVES PROMPT NOTICE TO THE OTHER
SECURITYHOLDERS, WHICH NOTICE SHALL DESCRIBE IN REASONABLE DETAIL THE PREEMPTIVE
SECURITIES BEING PURCHASED BY THE PURCHASING HOLDER AND THE PURCHASE PRICE
THEREOF AND (III) THE PURCHASING HOLDER AND THE COMPANY (OR APPLICABLE
SUBSIDIARY) TAKE ALL STEPS NECESSARY TO ENABLE THE OTHER SECURITYHOLDERS TO
EFFECTIVELY EXERCISE THEIR RESPECTIVE RIGHTS UNDER SECTION 6(A) WITH RESPECT TO
THEIR PURCHASE OF A PRO RATA SHARE OF THE PREEMPTIVE SECURITIES ISSUED TO THE
PURCHASING HOLDER AFTER SUCH PURCHASE BY THE PURCHASING HOLDER.
7.
Legend.
(A)
EACH CERTIFICATE EVIDENCING SECURITYHOLDER SHARES AND EACH CERTIFICATE
ISSUED IN EXCHANGE FOR OR UPON THE TRANSFER OF ANY SECURITYHOLDER SHARES (IF
SUCH SHARES REMAIN SECURITYHOLDER SHARES AFTER SUCH TRANSFER)