until
the date that is 30 days after the effective date of the initial Registration
Statement, proposes to prepare and file with the SEC a registration statement
relating to an offering for its own account (a "Primary Offering") under the
Securities Act of any of its equity securities (other than on Form S-8, or, in
connection with an acquisition on Form S-4), then the Company will
25
(I)
PROMPTLY GIVE TO EACH INVESTOR THAT HOLDS
AT LEAST 20% OF THE SHARES SOLD IN THE TRANSACTION CONTEMPLATED BY THIS
AGREEMENT AS SET FORTH ON SCHEDULE 1.1 HERETO (EACH, A "LEAD INVESTOR") WRITTEN
NOTICE THEREOF; AND
(II)
THE LEAD INVESTORS SHALL HAVE FIVE
(5) BUSINESS DAYS TO CONSENT TO THE PRIMARY OFFERING, WHICH CONSENT SHALL NOT BE
UNREASONABLY WITHHELD; IF THE LEAD INVESTORS DO NOT OBJECT TO SUCH PRIMARY
OFFERING WITHIN FIVE (5) BUSINESS DAYS, THEN SUCH LEAD INVESTORS SHALL BE DEEMED
TO HAVE CONSENTED TO THE PRIMARY OFFERING.
IN ADDITION, FROM THE DATE HEREOF UNTIL THE DATE THAT IS 90 DAYS AFTER THE
EFFECTIVE DATE OF THE INITIAL REGISTRATION STATEMENT, EACH INVESTOR SHALL HAVE
THE RIGHT TO PURCHASE ITS PRO RATA SHARE OF EQUITY OR EQUITY-LINKED SECURITIES
IN ANY PRIMARY OFFERING ON THE SAME TERMS AND CONDITIONS AND AT THE SAME TIME AS
THE MOST FAVORABLE OFFER TO A THIRD PARTY.
EACH INVESTOR'S PRO RATA SHARE, FOR
PURPOSES OF THIS RIGHT, IS THE RATIO OF THE SHARES OF COMMON STOCK OWNED BY IT
IMMEDIATELY PRIOR TO THE ISSUANCE OF EQUITY OR EQUITY-LINKED SECURITIES IN THE
PRIMARY OFFERING TO ALL SHARES OF COMMON STOCK OF THE COMPANY OUTSTANDING
IMMEDIATELY PRIOR TO THE ISSUANCE OF EQUITY OR EQUITY-LINKED SECURITIES IN THE
PRIMARY OFFERING.
IN THE EVENT THE COMPANY PROPOSES TO UNDERTAKE A PRIMARY
OFFERING PURSUANT TO THIS SECTION 6.7(B) AND THE LEAD INVESTORS HAVE NOT
OBJECTED, THE COMPANY SHALL GIVE EACH INVESTOR AT LEAST FOUR BUSINESS DAYS'
WRITTEN NOTICE OF ITS INTENTION, DESCRIBING THE TYPE OF EQUITY OR EQUITY-LINKED
SECURITIES, AND THE GENERAL TERMS UPON WHICH THE COMPANY PROPOSES TO ISSUE THE
SAME.
THE COMPANY SHALL HAVE THE RIGHT TO TERMINATE OR WITHDRAW ANY SUCH
REGISTRATION INITIATED BY IT UNDER THIS SECTION 6.7(B) PRIOR TO THE
EFFECTIVENESS OF SUCH REGISTRATION WHETHER OR NOT ANY INVESTOR HAS ELECTED TO
EXERCISE ITS PREEMPTIVE RIGHT IN SUCH REGISTRATION.
7.
Indemnification.
7.1.
Indemnification by the Company.
The Company
will indemnify, defend and hold harmless each Investor, its officers, directors,
employees, partners, affiliates, agents, representatives and legal counsel, and
each person controlling (or deemed controlling) such Investor within the meaning
of the Securities Act, (collectively, the "Investors' Agents") against all
claims, losses, damages, liabilities, costs and expenses (or actions in respect
thereof) ("Liabilities"), joint or several, arising out of or based on
(A) (i) any untrue statement (or alleged untrue statement) of a material fact
contained in the Registration Statement, any prospectus, offering circular or
other similar document or any amendments or supplements thereto (including any
related registration statement and amendments or supplements thereto,
notification or the