STOCKHOLDER SEVERALLY AND NOT JOINTLY AND
PROVIDED FURTHER THAT IN THE EVENT THAT AT THE TIME OF EXECUTION OF THE
DEFINITIVE AGREEMENT RELATING TO SUCH DRAG-ALONG SALE THE OTHER STOCKHOLDER NO
LONGER RETAINS THE RIGHT TO DESIGNATE THE QDRF DESIGNEE PURSUANT TO SECTION
2.1(A), THE OTHER STOCKHOLDER SHALL BE REQUIRED ONLY TO MAKE REPRESENTATIONS,
WARRANTIES, COVENANTS, INDEMNITIES AND AGREEMENTS PERTAINING SPECIFICALLY TO
ITSELF CONSISTENT WITH THE REPRESENTATIONS, WARRANTIES, COVENANTS, INDEMNITIES
AND AGREEMENTS PERTAINING SPECIFICALLY TO THE SELLING STOCKHOLDER.
THE OTHER
STOCKHOLDER WILL BE RESPONSIBLE FOR FUNDING ITS PROPORTIONATE SHARE OF ANY
ESCROW ARRANGEMENTS IN CONNECTION WITH THE DRAG-ALONG SALE AND FOR ITS
PROPORTIONATE SHARE OF ANY WITHDRAWALS THEREFROM.
THE OTHER STOCKHOLDER ALSO
WILL BE RESPONSIBLE FOR ITS PROPORTIONATE SHARE OF ANY FEES, COMMISSIONS,
ADJUSTMENTS TO PURCHASE PRICE
AND EXPENSES IN CONNECTION WITH THE OF THE DRAG-ALONG SALE.
IF THE DRAG-ALONG
SALE IS NOT CONSUMMATED WITHIN 90 DAYS FROM THE DATE OF THE DRAG-ALONG NOTICE
(SUBJECT TO EXTENSION TO OBTAIN ANY NECESSARY REGULATORY APPROVALS), THE SELLING
STOCKHOLDER(S) MUST DELIVER ANOTHER DRAG-ALONG NOTICE IN ORDER TO EXERCISE THEIR
RIGHTS UNDER THIS SECTION 4.3 WITH RESPECT TO SUCH DRAG-ALONG SALE.
ARTICLE V
PREEMPTION
Section 5.1.
Preemptive Rights.
(a)
Each Stockholder shall have the right to
purchase for cash its Preemptive Right Pro Rata Share of newly issued (i) Common
Shares or (ii) options or warrants to purchase, or securities convertible into
or exchangeable for, Common Shares ("Rights" and together with Common Shares,
"POI Securities"), in each case that the Company or any Subsidiary of the
Company may from time to time propose to sell for cash.
A Stockholder's
"Preemptive Right Pro Rata Share" shall be, at any given time, that proportion,
calculated prior to any proposed new issuance, which the number of Common Shares
owned by such Stockholder at such time bears to the total number of Common
Shares outstanding at such time.
(B)
IN THE EVENT THE COMPANY PROPOSES TO UNDERTAKE AN ISSUANCE FOR CASH OF POI
SECURITIES TO ANY PERSON, IT SHALL GIVE THE STOCKHOLDERS WRITTEN NOTICE (THE
"PREEMPTIVE NOTICE") OF ITS INTENTION TO SELL POI SECURITIES FOR CASH, THE
PRICE, THE IDENTITY OF THE PURCHASER AND THE PRINCIPAL TERMS UPON WHICH THE
COMPANY PROPOSES TO ISSUE THE SAME.
SUBJECT TO SECTION 5.1(A), EACH STOCKHOLDER
SHALL HAVE TEN BUSINESS DAYS FROM THE DELIVERY DATE OF ANY PREEMPTIVE NOTICE TO
AGREE TO PURCHASE A NUMBER OF POI SECURITIES UP TO ITS PREEMPTIVE RIGHT PRO RATA
SHARE OF POI SECURITIES (IN EACH CASE CALCULATED PRIOR TO THE ISSUANCE) FOR THE
PRICE AND UPON THE TERMS SPECIFIED IN THE PREEMPTIVE NOTICE BY GIVING WRITTEN
NOTICE TO THE COMPANY AND STATING THEREIN THE NUMBER OF POI SECURITIES TO BE
PURCHASED.
(C)
IN THE EVENT THAT ANY STOCKHOLDER FAILS TO PURCHASE ALL OF ITS PREEMPTIVE
RIGHT PRO RATA SHARE PURSUANT TO THIS SECTION 5.1, THE COMPANY SHALL HAVE 180
DAYS AFTER THE DATE OF THE PREEMPTIVE NOTICE TO CONSUMMATE THE SALE OF THE POI
SECURITIES WITH RESPECT TO WHICH SUCH STOCKHOLDER'S PREEMPTIVE RIGHT WAS NOT