SHALL
BE REASONABLY SATISFACTORY TO THE REQUIRED HOLDERS. UNTIL SUCH APPROVAL OR
WRITTEN OPINION IS OBTAINED, NO PURCHASER OF PREFERRED SHARES PURSUANT TO THE
SECURITIES PURCHASE AGREEMENT (THE "PURCHASERS") SHALL BE ISSUED, IN THE
AGGREGATE, UPON CONVERSION OF PREFERRED SHARES, SHARES OF COMMON STOCK IN AN
AMOUNT GREATER THAN THE PRODUCT OF (I) THE EXCHANGE CAP AMOUNT MULTIPLIED BY
(II) A FRACTION, THE NUMERATOR OF WHICH IS THE NUMBER OF PREFERRED SHARES ISSUED
TO SUCH PURCHASER PURSUANT TO THE SECURITIES PURCHASE AGREEMENT ON THE INITIAL
ISSUANCE DATE AND THE DENOMINATOR OF WHICH IS THE AGGREGATE AMOUNT OF ALL OF THE
PREFERRED SHARES ISSUED TO THE PURCHASERS ON THE INITIAL ISSUANCE DATE PURSUANT
TO THE SECURITIES PURCHASE AGREEMENT (THE "EXCHANGE CAP ALLOCATION"). IN THE
EVENT THAT ANY PURCHASER SHALL SELL OR OTHERWISE TRANSFER ANY OF SUCH
PURCHASER'S PREFERRED SHARES, THE TRANSFEREE
35
SHALL BE ALLOCATED A PRO RATA PORTION OF SUCH PURCHASER'S EXCHANGE CAP
ALLOCATION. IN THE EVENT THAT ANY HOLDER SHALL CONVERT ALL OF SUCH HOLDER'S
PREFERRED SHARES INTO A NUMBER OF SHARES OF COMMON STOCK WHICH, IN THE
AGGREGATE, IS LESS THAN SUCH HOLDER'S EXCHANGE CAP ALLOCATION, THEN THE
DIFFERENCE BETWEEN SUCH HOLDER'S EXCHANGE CAP ALLOCATION AND THE NUMBER OF
SHARES OF COMMON STOCK ACTUALLY ISSUED TO SUCH HOLDER SHALL BE ALLOCATED TO THE
RESPECTIVE EXCHANGE CAP ALLOCATIONS OF THE REMAINING HOLDERS ON A PRO RATA BASIS
IN PROPORTION TO THE NUMBER OF PREFERRED SHARES THEN HELD BY EACH SUCH HOLDER.
(11)
PARTICIPATION. SUBJECT TO THE RIGHTS OF THE HOLDERS, IF ANY, OF THE
PARI PASSU SHARES, THE HOLDERS SHALL, AS HOLDERS OF PREFERRED STOCK, BE ENTITLED
TO SUCH DIVIDENDS PAID AND DISTRIBUTIONS MADE TO THE HOLDERS OF COMMON STOCK TO
THE SAME EXTENT AS IF SUCH HOLDERS HAD CONVERTED THE PREFERRED SHARES INTO
COMMON STOCK (WITHOUT REGARD TO ANY LIMITATIONS ON CONVERSION HEREIN OR
ELSEWHERE) AND HAD HELD SUCH SHARES OF COMMON STOCK ON THE RECORD DATE FOR SUCH
DIVIDENDS AND DISTRIBUTIONS. PAYMENTS UNDER THE PRECEDING SENTENCE SHALL BE MADE
CONCURRENTLY WITH THE DIVIDEND OR DISTRIBUTION TO THE HOLDERS OF COMMON STOCK.
FOLLOWING THE OCCURRENCE OF A LIQUIDATION EVENT AND THE PAYMENT IN FULL TO A
HOLDER OF ITS APPLICABLE LIQUIDATION PREFERENCE, SUCH HOLDER SHALL CEASE TO HAVE
ANY RIGHTS HEREUNDER TO PARTICIPATE IN ANY FUTURE DIVIDENDS OR DISTRIBUTIONS
MADE TO THE HOLDERS OF COMMON STOCK.
(12)
VOTE TO CHANGE THE TERMS OF OR ISSUE PREFERRED SHARES. EXCEPT WHERE
THE VOTE OR WRITTEN CONSENT OF THE HOLDERS OF A GREATER NUMBER OF SHARES IS
REQUIRED BY LAW OR BY ANOTHER PROVISION OF THE CERTIFICATE OF INCORPORATION, THE
AFFIRMATIVE VOTE AT A MEETING DULY CALLED FOR SUCH PURPOSE OR THE WRITTEN
CONSENT WITHOUT A MEETING OF THE REQUIRED HOLDERS, VOTING TOGETHER AS A SINGLE
CLASS, SHALL BE REQUIRED BEFORE THE COMPANY MAY: (A) AMEND OR REPEAL ANY
PROVISION OF, OR ADD ANY PROVISION TO, THE CERTIFICATE OF INCORPORATION OR
BYLAWS, OR FILE ANY ARTICLES OF AMENDMENT, CERTIFICATE OF DESIGNATIONS,
PREFERENCES, LIMITATIONS AND RELATIVE RIGHTS OF ANY SERIES OF