DAYS
FOLLOWING ANY MEETING OF THE BOARD AT WHICH ANY SUCH ISSUANCE OR SALE IS
APPROVED AND AT LEAST FIFTEEN (15) DAYS PRIOR TO THE PROPOSED ISSUANCE OR SALE.
SUCH NOTICE (THE "ISSUANCE NOTICE") SHALL SET FORTH THE MATERIAL TERMS AND
CONDITIONS OF SUCH PROPOSED TRANSACTION, INCLUDING THE NAME OF ANY PROPOSED
PURCHASER(S), THE PROPOSED MANNER OF DISPOSITION, THE NUMBER OR AMOUNT AND
DESCRIPTION OF THE SHARES PROPOSED TO BE ISSUED, THE PROPOSED ISSUANCE DATE AND
THE PROPOSED PURCHASE PRICE PER SHARE, INCLUDING A DESCRIPTION OF ANY NON-CASH
CONSIDERATION SUFFICIENTLY DETAILED TO PERMIT THE DETERMINATION OF THE FAIR
MARKET VALUE THEREOF.
SUCH NOTICE SHALL ALSO BE ACCOMPANIED BY ANY WRITTEN
OFFER FROM THE PROSPECTIVE PURCHASER TO PURCHASE SUCH NEW SECURITIES.
(C)
AT ANY TIME DURING THE 15-DAY PERIOD FOLLOWING THE RECEIPT OF AN ISSUANCE
NOTICE, THE STOCKHOLDERS SHALL HAVE THE RIGHT TO ELECT IRREVOCABLY TO PURCHASE
ITS PRO RATA PORTION OF THE NUMBER OF THE EQUITY PURCHASE SHARES AT THE PURCHASE
PRICE SET FORTH IN THE ISSUANCE NOTICE (PROVIDED THAT, IN THE EVENT ANY PORTION
OF THE PURCHASE PRICE PER SHARE TO BE PAID BY THE PROPOSED PURCHASER IS TO BE
PAID IN NON-CASH CONSIDERATION, THE VALUE OF ANY SUCH NON-CASH CONSIDERATION PER
SHARE SHALL BE THE FAIR MARKET VALUE THEREOF) AND UPON THE OTHER TERMS AND
CONDITIONS SPECIFIED IN THE ISSUANCE NOTICE BY DELIVERING A WRITTEN NOTICE TO
THE COMPANY.
EXCEPT AS PROVIDED IN THE FOLLOWING SENTENCE, SUCH PURCHASE SHALL
BE CONSUMMATED CONCURRENTLY WITH THE CONSUMMATION OF THE ISSUANCE OR SALE
DESCRIBED IN THE ISSUANCE NOTICE.
THE CLOSING OF ANY PURCHASE BY ANY
STOCKHOLDER MAY BE EXTENDED BEYOND THE CLOSING OF THE TRANSACTION DESCRIBED IN
THE ISSUANCE NOTICE TO THE EXTENT NECESSARY TO (I) OBTAIN REQUIRED GOVERNMENTAL
APPROVALS AND OTHER REQUIRED APPROVALS AND THE COMPANY AND THE STOCKHOLDERS
SHALL USE THEIR RESPECTIVE COMMERCIALLY REASONABLE EFFORTS TO OBTAIN SUCH
APPROVALS AND (II) PERMIT THE STOCKHOLDERS OR THEIR AFFILIATES TO COMPLETE THEIR
INTERNAL CAPITAL CALL PROCESS; PROVIDED THAT THE EXTENSION PURSUANT TO THIS
CLAUSE (II) SHALL NOT EXCEED 30 DAYS.
(D)
EACH STOCKHOLDER EXERCISING ITS RIGHT TO PURCHASE ITS RESPECTIVE PORTION OF
THE EQUITY PURCHASE SHARES IN FULL (AN "EXERCISING STOCKHOLDER") SHALL HAVE A
RIGHT OF OVER-ALLOTMENT SUCH THAT IF ANY OTHER STOCKHOLDER OR AFFILIATE OF ANY
STOCKHOLDER FAILS TO EXERCISE ITS RIGHT HEREUNDER TO PURCHASE ITS FULL PRO RATA
PORTION OF NEW SECURITIES (A "NON-PURCHASING STOCKHOLDER"), SUCH EXERCISING
STOCKHOLDER MAY PURCHASE ITS PRO RATA PORTION OF SUCH SECURITIES BY GIVING
WRITTEN NOTICE TO THE COMPANY WITHIN TEN (10) DAYS FROM THE DATE THAT THE
COMPANY
22
PROVIDES WRITTEN NOTICE OF THE AMOUNT OF NEW SECURITIES AS TO WHICH SUCH
NON-PURCHASING STOCKHOLDERS HAVE FAILED TO EXERCISE THEIR EQUITY PURCHASE RIGHTS
HEREUNDER.
(E)
IF ANY STOCKHOLDER OR EXERCISING STOCKHOLDER FAILS TO EXERCISE FULLY THE
EQUITY PURCHASE RIGHT WITHIN THE PERIODS DESCRIBED ABOVE AND AFTER EXPIRATION OF
THE 10-DAY PERIOD FOR EXERCISE OF THE OVER-ALLOTMENT PROVISIONS PURSUANT TO
SECTION 4.1(D) ABOVE, THE COMPANY SHALL BE FREE TO COMPLETE THE PROPOSED
ISSUANCE OR