BUY OR OFFER TO SELL SHARES OF COMMON STOCK OR SECURITIES CONVERTIBLE
INTO OR EXCHANGEABLE FOR COMMON STOCK BY MEANS OF ANY FORM OF GENERAL
SOLICITATION OR GENERAL ADVERTISING (AS SUCH TERMS ARE USED IN REGULATION D
UNDER THE SECURITIES ACT) IN ANY MANNER INVOLVING A PUBLIC OFFERING (WITHIN THE
MEANING OF SECTION 4(2) OF THE SECURITIES ACT).
4.2.
DISCLOSURES.
SUBJECT TO PURCHASERS' PRIOR APPROVAL OF THE CONTENT
THEREOF, PROMPTLY FOLLOWING THE CLOSING THE COMPANY WILL (I) ISSUE A PRESS
RELEASE ANNOUNCING THE SALE OF THE SHARES, AND (II) FILE SUCH PRESS RELEASE AND
OTHER APPROPRIATE INFORMATION REASONABLY ACCEPTABLE TO PURCHASERS WITH THE SEC
ON A FORM 8-K.
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4.3.
USE OF PROCEEDS.
THE COMPANY WILL USE THE PROCEEDS FROM THE SALE
OF THE SHARES AND THE NEW DEBT FINANCING (AS DEFINED BELOW) (REDUCED BY THE
EXPENSES INCURRED OR REIMBURSED BY THE COMPANY IN CONNECTION WITH THE
TRANSACTIONS CONTEMPLATED HEREBY) FOR THE SOLE PURPOSE OF PURCHASING UP TO 4
MILLION SHARES OF COMMON STOCK AT A PRICE OF $10 PER SHARE FROM EXISTING COMMON
STOCKHOLDERS OF THE COMPANY THAT TENDER SHARES PURSUANT TO A TENDER OFFER
EXPECTED TO BE MADE BY THE COMPANY IN LATE FEBRUARY 2007(THE "REPURCHASE").
4.4.
Right of First Offer / Future Investment Right.
(A)
SUBJECT TO SECTION 4.4(F), FOLLOWING THE CLOSING AND AS LONG AS A
PURCHASER BENEFICIALLY OWNS AT LEAST 50% OF THE SHARES PURCHASED HEREBY, IN THE
EVENT THAT, AT ANY TIME, THE COMPANY SHALL DECIDE TO ISSUE ANY ADDITIONAL
CONVERTIBLE DEBT OR EQUITY FUNDING ("NEW EQUITY SECURITIES"), THE COMPANY SHALL
AT SUCH TIME DELIVER TO SUCH PURCHASER WRITTEN NOTICE (THE "PREEMPTIVE NOTICE")
OF THE COMPANY'S ISSUANCE OF NEW EQUITY SECURITIES, DESCRIBING THE AMOUNT, TYPE
AND TERMS (INCLUDING THE EXERCISE PRICE AND EXPIRATION DATE THEREOF IN THE CASE
OF ANY NEW EQUITY SECURITIES IN THE FORM OF OPTIONS OR WARRANTS) OF SUCH NEW
EQUITY SECURITIES, THE PURCHASE PRICE PER NEW EQUITY SECURITY (THE "NEW EQUITY
SECURITIES PRICE") TO BE PAID BY THE PURCHASERS OF SUCH NEW EQUITY SECURITIES,
THE EXPECTED TIMING OF SUCH ISSUANCE (WHICH WILL IN NO EVENT BE MORE THAN 60
DAYS OR LESS THAN 30 DAYS AFTER THE DATE UPON WHICH THE PREEMPTIVE NOTICE IS
GIVEN) AND THE OTHER TERMS UPON WHICH THE COMPANY HAS DECIDED TO ISSUE THE NEW
EQUITY SECURITIES.
(B)
EACH PURCHASER SHALL HAVE 15 DAYS FROM THE DATE ON WHICH IT
RECEIVES THE PREEMPTIVE NOTICE TO AGREE TO PURCHASE UP TO ITS PRO RATA SHARE OF
SUCH NEW EQUITY SECURITIES AT THE NEW EQUITY SECURITIES PRICE AND UPON THE
GENERAL TERMS SPECIFIED IN THE PREEMPTIVE NOTICE BY GIVING WRITTEN NOTICE (A
"PREEMPTIVE EXERCISE NOTICE") TO THE COMPANY AND STATING THEREIN THE QUANTITY OF
NEW EQUITY SECURITIES TO BE PURCHASED BY SUCH PURCHASER; PROVIDED THAT IF THE
NEW EQUITY SECURITIES PRICE INCLUDES ANY NON-CASH CONSIDERATION, EACH SUCH
PURCHASER SHALL HAVE THE OPTION TO PAY CASH IN LIEU OF ANY SUCH NON-CASH
COMPONENT.
IN THE EVENT THAT ANY PURCHASER SHALL FOR ANY REASON FAIL OR REFUSE
TO GIVE