RIGHTS AGREEMENT), 7.7 (WITH RESPECT TO INFORMATION RIGHTS), 7.8
(WITH RESPECT TO VCOC RIGHTS), 8.2 (WITH RESPECT TO THE LIMITED RIGHT TO SELL
THE NOTES AND CONVERTIBLE PREFERRED STOCK TO THE COMPANY) AND 10.17 (WITH
RESPECT TO THE EXCHANGE REFORMATION CLAUSE) ARE EXCLUSIVE TO THE INVESTOR
SECURITYHOLDERS AND THEIR PERMITTED TRANSFEREES.
ANY DETERMINATIONS TO BE MADE
PURSUANT HERETO SHALL BE MADE BY THE HOLDERS OF A MAJORITY IN INTEREST OF THE
CONVERSION SHARES (ON AN AS-CONVERTED BASIS) OR AS THEY MAY OTHERWISE AGREE
AMONGST THEMSELVES, PROVIDED THAT THE COMPANY SHALL HAVE NO DUTY TO INQUIRE AS
TO SUCH ARRANGEMENTS AND SHALL BE PROTECTED AND ENTITLED TO RELY EXCLUSIVELY
UPON ANY AND ALL INSTRUCTIONS OR COMMUNICATIONS FROM SLS (OR, FOLLOWING NOTICE
TO THE COMPANY IN ACCORDANCE WITH SECTION 10.3, SUCH OTHER INVESTOR
SECURITYHOLDER AS SPECIFIED BY SLS), AND IN THE ABSENCE OF ANY SUCH INSTRUCTION
OR COMMUNICATION, UPON THE DETERMINATION OF THE HOLDERS OF A MAJORITY IN
INTEREST OF THE CONVERSION SHARES (ON AN AS-CONVERTED BASIS) AS COMMUNICATED BY
THE INVESTOR SECURITYHOLDERS.
10.15
DISCUSSION REGARDING SECURITIES.
IF AT ANY TIME FOLLOWING THE
CLOSING, THE COMPANY DETERMINES THAT IT WOULD BE IN ITS INTEREST TO CONVERT OR
EXCHANGE THE CONVERTIBLE PREFERRED STOCK FOR INSTRUMENTS EVIDENCING CONVERTIBLE
INDEBTEDNESS OF THE COMPANY, THE COMPANY MAY REQUEST SLS, ON BEHALF OF THE
INVESTOR SECURITYHOLDERS, TO, AND SLS SHALL, DISCUSS WITH THE COMPANY IN GOOD
FAITH A PROPOSAL BY THE COMPANY WITH RESPECT TO SUCH CONVERSION OR EXCHANGE;
PROVIDED THAT NOTHING HEREIN SHALL BE CONSTRUED TO REQUIRE ANY INVESTOR
SECURITYHOLDER TO ACCEPT OR OTHERWISE AGREE TO ANY SUCH PROPOSAL OR OTHERWISE
AMEND, SUPPLEMENT, MODIFY OR WAIVE ANY TRANSACTION AGREEMENT OR ANY PROVISION
THEREIN IN CONNECTION THEREWITH.
10.16
TIME IS OF THE ESSENCE.
THE PARTIES ACKNOWLEDGE THAT TIME IS OF
THE ESSENCE WITH RESPECT TO THE FULFILLMENT OF THE RESPECTIVE OBLIGATIONS OF THE
PARTIES HERETO AND THE CLOSING OF THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT.
10.17
EXCHANGE REFORMATION CLAUSE.
NOTWITHSTANDING ANYTHING HEREIN TO THE
CONTRARY, IF THERE IS A CHANGE IN THE APPLICABLE RULES OR THE INTERPRETATION
THEREOF OF THE PRIMARY EXCHANGE ON WHICH THE COMMON STOCK IS LISTED AT THE TIME
SUCH CHANGE BECOMES EFFECTIVE THAT WOULD CAUSE THE COMMON STOCK TO BE DELISTED
BY SUCH EXCHANGE AS A RESULT OF A PROVISION OR PORTION OF ANY PROVISION IN THIS
AGREEMENT, SUCH PROVISION OR PORTION OF ANY PROVISION OF THIS AGREEMENT SHALL BE
DEEMED INVALID AND UNENFORCEABLE WITHOUT ANY FURTHER ACT ON THE PART OF ANY
PARTY HERETO; PROVIDED, HOWEVER, THAT THE COMPANY AND SLS SHALL PROMPTLY
THEREAFTER WORK IN GOOD FAITH TO REFORM SUCH PROVISION OR PORTION OF ANY
PROVISION OF THIS AGREEMENT SO AS TO COMPLY WITH SUCH CHANGED RULES FOR THE
COMMON STOCK TO CONTINUE TO BE LISTED ON SUCH PRIMARY EXCHANGE WHILE PRESERVING
TO THE NEAREST EXTENT REASONABLY POSSIBLE THE ORIGINAL INTENT OF THE PARTIES
HERETO WITH RESPECT TO SUCH PROVISION OR PORTION OF ANY PROVISION OF THIS
AGREEMENT.
55
10.18
INVESTOR SECURITYHOLDER FUNDAMENTAL CHANGE.
IF THE EVENT REFERRED
TO IN