STOCKHOLDERS AGREEMENT IN SUBSTANTIALLY THE FORM AS EXHIBIT D HERETO (THE
"STOCKHOLDERS AGREEMENT").
SECTION 3.21
RIGHT OF FIRST REFUSAL ON ADDITIONAL FINANCINGS.
19
(A)
FOR A PERIOD OF TWELVE (12) MONTHS FOLLOWING THE LAST CLOSING DATE
UNDER THIS AGREEMENT, THE COMPANY COVENANTS AND AGREES TO GIVE THE PURCHASERS
THE RIGHT OF FIRST REFUSAL TO PROVIDE ANY ADDITIONAL FINANCING ("ADDITIONAL
FINANCING") ON THE SAME TERMS AND CONDITIONS DESCRIBED HEREIN.
THE COMPANY
SHALL PROMPTLY NOTIFY (IN NO EVENT LATER THAN FIVE (5) DAYS AFTER MAKING OR
RECEIVING AN APPLICABLE OFFER) IN WRITING (A "RIGHTS NOTICE") THE PURCHASERS OF
THE TERMS AND CONDITIONS OF ANY PROPOSED OFFER OR SALE TO, OR EXCHANGE WITH (OR
OTHER TYPE OF DISTRIBUTION TO) ANY THIRD PARTY (A "THIRD PARTY FINANCING"), OF
COMMON STOCK OR ANY DEBT OR EQUITY SECURITIES CONVERTIBLE, EXERCISABLE OR
EXCHANGEABLE INTO COMMON STOCK; PROVIDED, HOWEVER, PRIOR TO DELIVERING TO EACH
PURCHASER A RIGHTS NOTICE, THE COMPANY SHALL FIRST DELIVER TO EACH PURCHASER A
WRITTEN NOTICE OF ITS INTENTION TO EFFECT A THIRD PARTY FINANCING ("PRE-NOTICE")
WITHIN THREE (3) TRADING DAYS OF RECEIVING AN APPLICABLE OFFER, WHICH PRE-NOTICE
SHALL ASK SUCH PURCHASER IF IT WANTS TO REVIEW THE DETAILS OF SUCH FINANCING.
UPON THE REQUEST OF A PURCHASER, AND ONLY UPON A REQUEST BY SUCH PURCHASER
WITHIN THREE (3) TRADING DAYS OF RECEIPT OF A PRE-NOTICE, THE COMPANY SHALL
PROMPTLY, BUT NO LATER THAN TWO (2) TRADING DAYS AFTER SUCH REQUEST, DELIVER A
RIGHTS NOTICE TO SUCH PURCHASER.
THE RIGHTS NOTICE SHALL DESCRIBE, IN
REASONABLE DETAIL, THE PROPOSED THIRD PARTY FINANCING AND ALL OF THE TERMS AND
CONDITIONS THEREOF AND PROPOSED DEFINITIVE DOCUMENTATION TO BE ENTERED INTO IN
CONNECTION THEREWITH.
THE RIGHTS NOTICE SHALL PROVIDE EACH PURCHASER AN OPTION
(THE "RIGHTS OPTION") TO INFORM THE COMPANY DURING THE TEN (10) TRADING DAYS
FOLLOWING DELIVERY OF THE RIGHTS NOTICE (THE "OPTION PERIOD") WHETHER SUCH
PURCHASER WILL PROVIDE ADDITIONAL FINANCING IN THE AMOUNT BEING OFFERED IN THE
THIRD PARTY FINANCING ON THE SAME, ABSOLUTE TERMS AND CONDITIONS DESCRIBED IN
THIS AGREEMENT.
IF THE COMPANY DOES NOT RECEIVE NOTICE OF EXERCISE OF THE
RIGHTS OPTION FROM THE PURCHASERS WITHIN THE OPTION PERIOD, THE COMPANY SHALL
HAVE THE RIGHT TO CLOSE THE THIRD PARTY FINANCING ON THE SCHEDULED CLOSING DATE
WITH A THIRD PARTY.
IF THE CLOSING OF THE PROPOSED SUBSEQUENT FINANCING DOES
NOT OCCUR ON THAT DATE, ANY CLOSING OF THE CONTEMPLATED THIRD PARTY FINANCING OR
ANY OTHER THIRD PARTY FINANCING SHALL BE SUBJECT TO ALL OF THE PROVISIONS OF
THIS SECTION 3.21(A), INCLUDING, WITHOUT LIMITATION, THE DELIVERY OF A NEW
RIGHTS NOTICE.
(B)
FOR PURPOSES OF THIS AGREEMENT, A PERMITTED FINANCING (AS DEFINED
HEREINAFTER) SHALL NOT BE CONSIDERED A THIRD PARTY FINANCING.
A "PERMITTED
FINANCING" SHALL MEAN (I) SECURITIES ISSUED (OTHER THAN FOR CASH) IN CONNECTION
WITH A MERGER, ACQUISITION, OR CONSOLIDATION, (II) SECURITIES ISSUED PURSUANT TO
THE CONVERSION OR EXERCISE OF CONVERTIBLE OR EXERCISABLE SECURITIES ISSUED OR
OUTSTANDING ON OR PRIOR TO THE DATE OF THIS AGREEMENT OR ISSUED PURSUANT TO THIS
AGREEMENT (SO LONG