INDIRECTLY, OFFER, SELL, GRANT ANY OPTION TO PURCHASE, OR OTHERWISE DISPOSE OF
(OR ANNOUNCE ANY OFFER, SALE, GRANT OR ANY OPTION TO PURCHASE OR OTHER
DISPOSITION OF) ANY OF ITS OR THE SUBSIDIARIES' EQUITY OR EQUITY EQUIVALENT
SECURITIES, INCLUDING WITHOUT LIMITATION ANY DEBT, PREFERRED STOCK OR OTHER
INSTRUMENT OR SECURITY THAT IS, AT ANY TIME DURING ITS LIFE AND UNDER ANY
CIRCUMSTANCES, CONVERTIBLE INTO OR EXCHANGEABLE OR EXERCISABLE FOR COMMON STOCK
OR COMMON STOCK EQUIVALENTS (ANY SUCH OFFER, SALE, GRANT, DISPOSITION OR
ANNOUNCEMENT BEING REFERRED TO AS A "SUBSEQUENT PLACEMENT").
21
(III)
FROM THE EFFECTIVE DATE UNTIL NO NOTES ARE
OUTSTANDING, THE COMPANY WILL NOT, DIRECTLY OR INDIRECTLY, EFFECT ANY SUBSEQUENT
PLACEMENT UNLESS THE COMPANY SHALL HAVE FIRST COMPLIED WITH THIS SECTION
4(T)(III).
(1)
THE COMPANY SHALL DELIVER TO EACH BUYER A
WRITTEN NOTICE (THE "OFFER") OF ANY PROPOSED OR INTENDED ISSUANCE OR SALE OR
EXCHANGE OF THE SECURITIES BEING OFFERED (THE "OFFERED SECURITIES") IN A
SUBSEQUENT PLACEMENT, WHICH OFFER SHALL (W) IDENTIFY AND DESCRIBE THE OFFERED
SECURITIES, (X) DESCRIBE THE PRICE AND OTHER TERMS UPON WHICH THEY ARE TO BE
ISSUED, SOLD OR EXCHANGED, AND THE NUMBER OR AMOUNT OF THE OFFERED SECURITIES TO
BE ISSUED, SOLD OR EXCHANGED, (Y) IDENTIFY THE PERSONS OR ENTITIES (IF KNOWN) TO
WHICH OR WITH WHICH THE OFFERED SECURITIES ARE TO BE OFFERED, ISSUED, SOLD OR
EXCHANGED AND (Z) OFFER TO ISSUE AND SELL TO OR EXCHANGE WITH BUYERS A PRO RATA
PORTION OF THE GREATER OF (A) ONE-THIRD (1/3RD) OF THE OFFERED SECURITIES AND
(B) $5,000,000, IN EACH CASE ALLOCATED AMONG THE BUYERS (A) BASED ON SUCH
BUYER'S PRO RATA PORTION OF THE AGGREGATE PRINCIPAL AMOUNT OF THE NOTES
PURCHASED HEREUNDER (THE "BASIC AMOUNT"), AND (B) WITH RESPECT TO EACH BUYER
THAT ELECTS TO PURCHASE ITS BASIC AMOUNT, ANY ADDITIONAL PORTION OF THE OFFERED
SECURITIES ATTRIBUTABLE TO THE BASIC AMOUNTS OF OTHER BUYERS AS SUCH BUYER SHALL
INDICATE IT WILL PURCHASE OR ACQUIRE SHOULD THE OTHER BUYERS SUBSCRIBE FOR LESS
THAN THEIR BASIC AMOUNTS (THE "UNDERSUBSCRIPTION AMOUNT").
(2)
TO ACCEPT AN OFFER, IN WHOLE OR IN PART, A
BUYER MUST DELIVER A WRITTEN NOTICE TO THE COMPANY PRIOR TO THE END OF THE FIVE
(5) TRADING DAY PERIOD OF THE OFFER (THE "OFFER PERIOD"), SETTING FORTH THE
PORTION OF THE BUYER'S BASIC AMOUNT THAT SUCH BUYER ELECTS TO PURCHASE AND, IF
SUCH BUYER SHALL ELECT TO PURCHASE ALL OF ITS BASIC AMOUNT, THE
UNDERSUBSCRIPTION AMOUNT, IF ANY, THAT SUCH BUYER ELECTS TO PURCHASE (IN EITHER
CASE, THE "NOTICE OF ACCEPTANCE").
IF THE BASIC AMOUNTS SUBSCRIBED FOR BY ALL
BUYERS ARE LESS THAN THE TOTAL OF ALL OF THE BASIC AMOUNTS, THEN EACH BUYER WHO
HAS SET FORTH AN UNDERSUBCRIPTION AMOUNT IN ITS NOTICE OF ACCEPTANCE SHALL BE
ENTITLED TO PURCHASE, IN ADDITION TO THE BASIC AMOUNTS SUBSCRIBED FOR, THE
UNDERSUBSCRIPTION AMOUNT IT HAS SUBSCRIBED FOR; PROVIDED, HOWEVER, THAT IF THE
UNDERSUBSCRIPTION AMOUNTS SUBSCRIBED FOR EXCEED THE DIFFERENCE BETWEEN THE TOTAL
OF ALL THE BASIC AMOUNTS AND THE BASIC AMOUNTS SUBSCRIBED FOR