INDEMNITIES
AND AGREEMENTS PERTAINING SPECIFICALLY TO THE SELLING STOCKHOLDER.
THE OTHER
STOCKHOLDER WILL BE RESPONSIBLE FOR FUNDING ITS PROPORTIONATE SHARE OF ANY
ESCROW ARRANGEMENTS IN CONNECTION WITH THE DRAG-ALONG SALE AND FOR ITS
PROPORTIONATE SHARE OF ANY WITHDRAWALS THEREFROM.
THE OTHER STOCKHOLDER ALSO
WILL BE RESPONSIBLE FOR ITS PROPORTIONATE SHARE OF ANY FEES, COMMISSIONS,
ADJUSTMENTS TO PURCHASE PRICE AND EXPENSES IN CONNECTION WITH THE OF THE
DRAG-ALONG SALE.
IF THE DRAG-ALONG SALE IS NOT CONSUMMATED WITHIN 90 DAYS FROM
THE DATE OF THE DRAG-ALONG NOTICE (SUBJECT TO EXTENSION TO OBTAIN ANY NECESSARY
REGULATORY APPROVALS), THE SELLING STOCKHOLDER(S) MUST DELIVER ANOTHER
DRAG-ALONG NOTICE IN ORDER TO EXERCISE THEIR RIGHTS UNDER THIS SECTION 4.3 WITH
RESPECT TO SUCH DRAG-ALONG SALE.
ARTICLE V
PREEMPTION
Section 5.1
Preemptive Rights.
(a)
Each Stockholder shall have the right to
purchase for cash its Preemptive Right Pro Rata Share of newly issued (i) Common
Shares or (ii) options or warrants to purchase, or securities convertible into
or exchangeable for, Common Shares ("Rights" and together with Common Shares,
"POI Securities"), in each case that the Company or any Subsidiary of the
Company may from time to time propose to sell for cash.
A Stockholder's
"Preemptive Right Pro Rata Share" shall be, at any given time, that proportion,
calculated prior to any proposed new issuance, which the number of Common Shares
owned by such Stockholder at such time bears to the total number of Common
Shares outstanding at such time.
(B)
IN THE EVENT THE COMPANY PROPOSES TO UNDERTAKE AN ISSUANCE FOR CASH OF POI
SECURITIES TO ANY PERSON, IT SHALL GIVE THE STOCKHOLDERS WRITTEN NOTICE (THE
"PREEMPTIVE NOTICE") OF ITS INTENTION TO SELL POI SECURITIES FOR CASH, THE
PRICE, THE IDENTITY OF THE PURCHASER AND THE
12
PRINCIPAL TERMS UPON WHICH THE COMPANY PROPOSES TO ISSUE THE SAME.
SUBJECT TO
SECTION 5.1(A), EACH STOCKHOLDER SHALL HAVE TEN BUSINESS DAYS FROM THE DELIVERY
DATE OF ANY PREEMPTIVE NOTICE TO AGREE TO PURCHASE A NUMBER OF POI SECURITIES UP
TO ITS PREEMPTIVE RIGHT PRO RATA SHARE OF POI SECURITIES (IN EACH CASE
CALCULATED PRIOR TO THE ISSUANCE) FOR THE PRICE AND UPON THE TERMS SPECIFIED IN
THE PREEMPTIVE NOTICE BY GIVING WRITTEN NOTICE TO THE COMPANY AND STATING
THEREIN THE NUMBER OF POI SECURITIES TO BE PURCHASED.
(C)
IN THE EVENT THAT ANY STOCKHOLDER FAILS TO PURCHASE ALL OF ITS PREEMPTIVE
RIGHT PRO RATA SHARE PURSUANT TO THIS SECTION 5.1, THE COMPANY SHALL HAVE 180
DAYS AFTER THE DATE OF THE PREEMPTIVE NOTICE TO CONSUMMATE THE SALE OF THE POI
SECURITIES WITH RESPECT TO WHICH SUCH STOCKHOLDER'S PREEMPTIVE RIGHT WAS NOT
EXERCISED, AT OR ABOVE THE PRICE AND UPON TERMS NOT MORE FAVORABLE TO THE
PURCHASERS OF SUCH POI SECURITIES THAN THE TERMS SPECIFIED IN THE INITIAL
PREEMPTIVE NOTICE GIVEN IN CONNECTION WITH SUCH SALE.
Section 5.2
Excluded Securities.
The parties hereby agree that the preemption
rights described in Section 5.1 shall not be exercisable with respect to any
issuance by the Company or any Subsidiary of the Company