NOT ENTER INTO AN AGREEMENT FOR THE
SALE OF THE SHARES WITHIN SUCH PERIOD, OR IF SUCH AGREEMENT IS NOT CONSUMMATED
WITHIN NINETY (90) CALENDAR DAYS OF THE EXECUTION THEREOF, THE RIGHT PROVIDED
HEREUNDER SHALL BE DEEMED TO BE REVIVED AND SUCH SHARES SHALL NOT BE OFFERED
UNLESS FIRST REOFFERED TO THE SHAREHOLDERS IN ACCORDANCE WITH THIS SECTION 4.2.
SECTION 4.3
LIMITATIONS.
THE RIGHTS PROVIDED IN THIS ARTICLE IV
SHALL NOT BE APPLICABLE TO SHARES ISSUED IN ANY EXCLUDED TRANSACTION.
IN
ADDITION TO THE FOREGOING, THE RIGHT OF FIRST OFFER IN THIS ARTICLE IV SHALL NOT
BE APPLICABLE WITH RESPECT TO ANY SHAREHOLDER IN ANY SUBSEQUENT OFFERING OF
SHARES IF (A) AT THE TIME OF SUCH OFFERING, THE SHAREHOLDER IS NOT AN
"ACCREDITED INVESTOR," AS THAT TERM IS THEN DEFINED IN RULE 501(A) OF THE
SECURITIES ACT OF 1933, AS AMENDED, AND (B) SUCH OFFERING OF SHARES IS OTHERWISE
BEING OFFERED ONLY TO ACCREDITED INVESTORS.
SECTION 4.4
ADDITIONAL FINANCING.
THE COMPANY SHALL USE REASONABLE
BEST EFFORTS TO LEND TO THE ESOP UNDER A NOTE SUFFICIENT FUNDS TO PERMIT THE
ESOP TO EXERCISE ITS PREEMPTIVE RIGHTS IN FULL PURSUANT TO THIS ARTICLE IV (AN
"ADDITIONAL FINANCING"); PROVIDED, HOWEVER, THAT THE COMPANY SHALL HAVE NO
OBLIGATION TO PROVIDE THE ADDITIONAL FINANCING (A) IF PROVIDING SUCH ADDITIONAL
FINANCING WOULD VIOLATE ANY COVENANT OR OTHER OBLIGATION IN RESPECT OF
THEN-OUTSTANDING INDEBTEDNESS OR (B) THE BOARD REASONABLY DETERMINES THAT
PROVIDING SUCH ADDITIONAL FINANCING WOULD ADVERSELY AFFECT IN A MATERIAL MANNER
THE COMPANY'S BUSINESS PLANS AND OBJECTIVES, FINANCIAL POSITION OR RESULTS OF
OPERATIONS.
THE COMPANY SHALL BE DEEMED TO HAVE SATISFIED ITS OBLIGATIONS UNDER
THIS SECTION 4.4 IF IT SHALL HAVE OFFERED SUCH ADDITIONAL FINANCING ON TERMS
SUBSTANTIALLY SIMILAR TO OR MORE FAVORABLE THAN EXISTING LOAN OBLIGATIONS
BETWEEN THE COMPANY AND THE ESOP.
SECTION 4.5
TERMINATION.
SUBJECT TO ARTICLE IX, THE COVENANTS SET
FORTH IN THIS ARTICLE IV SHALL TERMINATE UPON THE EARLIER TO OCCUR AND SHALL NOT
BE APPLICABLE TO TRANSFERS OCCURRING AS PART OF (A) A QUALIFIED PUBLIC OFFERING
OR (B) A SALE OF THE COMPANY.
ARTICLE V
RESTRICTIVE COVENANTS
THE COMPANY HEREBY COVENANTS AND AGREES THAT, FROM AND AFTER THE EFFECTIVE DATE,
IT SHALL NOT, WITHOUT THE PRIOR APPROVAL OR PRIOR WRITTEN CONSENT OF A MAJORITY
OF THE BOARD, WHICH MAJORITY SHALL INCLUDE A MAJORITY OF THE INDEPENDENT
DIRECTORS AND ONE EGI-TRB DIRECTOR, ENTER INTO ANY TRANSACTION, CONTRACT,
AGREEMENT OR ARRANGEMENT TO:
(A)
AMEND, ALTER OR REPEAL ANY PROVISION OF THE CERTIFICATE OF
INCORPORATION OR BY-LAWS OF THE COMPANY;
(B)
CREATE, OR AUTHORIZE THE CREATION OF, OR ISSUE OR OBLIGATE ITSELF
TO ISSUE SHARES OF, ANY ADDITIONAL CLASS OR SERIES OF CAPITAL STOCK OTHER THAN
SHARES ISSUED AND SOLD TO THE
10
ESOP AT FAIR MARKET VALUE SOLELY FOR PURPOSES OF MAINTAINING ITS 51% EQUITY
OWNERSHIP OF THE COMPANY, ON A FULLY DILUTED BASIS;
(C)
LIQUIDATE, DISSOLVE OR WIND-UP THE BUSINESS AND AFFAIRS OF THE
COMPANY, OR CONSENT TO ANY OF THE FOREGOING;
(D)
PURCHASE OR REDEEM (OR PERMIT ANY SUBSIDIARY TO