PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) TO THE ISSUER OR
(D) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM
THE SECURITIES REPRESENTED BY THIS INSTRUMENT ARE TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND."
(D)
IN THE EVENT THAT ANY PURCHASED SECURITIES OR WARRANT SHARES
(I) BECOME REGISTERED UNDER THE SECURITIES ACT OR (II) ARE ELIGIBLE TO BE
TRANSFERRED WITHOUT RESTRICTION IN ACCORDANCE WITH RULE 144 OR ANOTHER EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT (OTHER THAN RULE 144A), THE COMPANY
SHALL ISSUE NEW CERTIFICATES OR OTHER INSTRUMENTS REPRESENTING SUCH PURCHASED
SECURITIES OR WARRANT SHARES, WHICH SHALL NOT CONTAIN THE APPLICABLE LEGENDS IN
SECTIONS 4.2(A) AND (C) ABOVE; PROVIDED THAT THE INVESTOR SURRENDERS TO THE
COMPANY THE PREVIOUSLY ISSUED CERTIFICATES OR OTHER INSTRUMENTS.
UPON TRANSFER
OF ALL OR A PORTION OF THE WARRANT IN COMPLIANCE WITH SECTION 4.4, THE COMPANY
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SHALL ISSUE NEW CERTIFICATES OR OTHER INSTRUMENTS REPRESENTING THE WARRANT,
WHICH SHALL NOT CONTAIN THE APPLICABLE LEGEND IN SECTION 4.2(B) ABOVE; PROVIDED
THAT THE INVESTOR SURRENDERS TO THE COMPANY THE PREVIOUSLY ISSUED CERTIFICATES
OR OTHER INSTRUMENTS.
4.3.
CERTAIN TRANSACTIONS.
THE COMPANY WILL NOT MERGE OR CONSOLIDATE
WITH, OR SELL, TRANSFER OR LEASE ALL OR SUBSTANTIALLY ALL OF ITS PROPERTY OR
ASSETS TO, ANY OTHER PARTY UNLESS THE SUCCESSOR, TRANSFEREE OR LESSEE PARTY (OR
ITS ULTIMATE PARENT ENTITY), AS THE CASE MAY BE (IF NOT THE COMPANY), EXPRESSLY
ASSUMES THE DUE AND PUNCTUAL PERFORMANCE AND OBSERVANCE OF EACH AND EVERY
COVENANT, AGREEMENT AND CONDITION OF THIS AGREEMENT TO BE PERFORMED AND OBSERVED
BY THE COMPANY.
4.4.
TRANSFER OF PURCHASED SECURITIES AND WARRANT SHARES; RESTRICTIONS
ON EXERCISE OF THE WARRANT.
SUBJECT TO COMPLIANCE WITH APPLICABLE SECURITIES
LAWS, THE INVESTOR SHALL BE PERMITTED TO TRANSFER, SELL, ASSIGN OR OTHERWISE
DISPOSE OF ("TRANSFER") ALL OR A PORTION OF THE PURCHASED SECURITIES OR WARRANT
SHARES AT ANY TIME, AND THE COMPANY SHALL TAKE ALL STEPS AS MAY BE REASONABLY
REQUESTED BY THE INVESTOR TO FACILITATE THE TRANSFER OF THE PURCHASED SECURITIES
AND THE WARRANT SHARES; PROVIDED THAT THE INVESTOR SHALL NOT TRANSFER A PORTION
OR PORTIONS OF THE WARRANT WITH RESPECT TO, AND/OR EXERCISE THE WARRANT FOR,
MORE THAN ONE-HALF OF THE INITIAL WARRANT SHARES (AS SUCH NUMBER MAY BE ADJUSTED
FROM TIME TO TIME PURSUANT TO SECTION 13 THEREOF) IN THE AGGREGATE UNTIL THE
EARLIER OF (A) THE DATE ON WHICH THE COMPANY (OR ANY SUCCESSOR BY BUSINESS
COMBINATION) HAS RECEIVED AGGREGATE GROSS PROCEEDS OF NOT LESS THAN THE PURCHASE
PRICE (AND THE PURCHASE PRICE PAID BY THE INVESTOR TO ANY SUCH SUCCESSOR FOR
SECURITIES OF SUCH SUCCESSOR PURCHASED UNDER THE CPP) FROM ONE OR MORE QUALIFIED
EQUITY