(10TH) BUSINESS DAY AFTER SUCH INVESTOR'S
RECEIPT OF THE OFFER NOTICE (THE "OFFER PERIOD"), SETTING FORTH THE AMOUNT OF
NEW SECURITIES THAT SUCH INVESTOR ELECTS TO PURCHASE OR OTHERWISE ACQUIRE (AT
THE PRICE AND ON THE TERMS SPECIFIED IN THE OFFER NOTICE), WHICH AMOUNT CAN BE
UP TO THAT PORTION OF THE NEW SECURITIES EQUAL TO SUCH INVESTOR'S PRO RATA
EQUITY INVESTMENT IN THE COMPANY (PROVIDED, FOR PURPOSES OF THIS SECTION 5.1, AN
INVESTOR'S "PRO RATA EQUITY INVESTMENT," SHALL MEAN THE RATIO OF (I) THE TOTAL
NUMBER OF SHARES OF COMMON STOCK HELD BY SUCH INVESTOR TO (II) THE TOTAL NUMBER
OF COMMON SHARES SOLD BY THE COMPANY TO THE INVESTORS PURSUANT TO THIS
AGREEMENT.
(C)
THE COMPANY SHALL HAVE NINETY (90) DAYS
AFTER EXPIRATION OF THE OFFER PERIOD TO SELL OR ENTER INTO AN AGREEMENT
(PURSUANT TO WHICH THE SALE OF NEW SECURITIES COVERED THEREBY SHALL BE CLOSED,
IF AT ALL, WITHIN SIXTY (60) DAYS FROM THE DATE OF SAID AGREEMENT) TO SELL ALL
OR ANY PART OF SUCH NEW SECURITIES AS TO WHICH A NOTICE OF ACCEPTANCE HAS NOT
BEEN GIVEN BY THE INVESTORS (THE "REFUSED SECURITIES"), BUT ONLY TO THE OFFEREES
DESCRIBED IN THE OFFER NOTICE (IF SO DESCRIBED THEREIN) AND ONLY UPON TERMS AND
CONDITIONS THAT ARE NOT MORE FAVORABLE TO THE ACQUIRING PERSON OR PERSONS OR
LESS FAVORABLE TO THE COMPANY THAN THOSE SET FORTH IN THE OFFER NOTICE.
(D)
UPON THE CLOSING OF THE ISSUANCE, SALE OR
EXCHANGE OF ALL OR LESS THAN ALL OF THE REFUSED SECURITIES, THE INVESTORS SHALL
ACQUIRE FROM THE COMPANY, AND THE COMPANY SHALL ISSUE TO THE INVESTORS, THE
NUMBER OR AMOUNT OF NEW SECURITIES SPECIFIED IN THE NOTICES OF ACCEPTANCE, UPON
THE TERMS AND CONDITIONS SPECIFIED IN THE OFFER. THE PURCHASE BY THE INVESTORS
OF ANY OFFERED SECURITIES IS SUBJECT IN ALL CASES TO THE PREPARATION, EXECUTION
AND DELIVERY BY THE COMPANY AND THE INVESTORS OF A PURCHASE AGREEMENT RELATING
TO SUCH NEW SECURITIES REASONABLY SATISFACTORY IN FORM AND SUBSTANCE TO THE
INVESTORS AND THEIR RESPECTIVE COUNSEL.
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(E)
THE RIGHT OF FIRST REFUSAL IN THIS SECTION
5.1 SHALL NOT APPLY IN CONNECTION WITH THE ISSUANCE OF ANY EXCLUDED SECURITIES.
(F)
THE OBLIGATIONS OF THE COMPANY UNDER THIS
SECTION 5.1 SHALL TERMINATE ON THE EARLIER TO OCCUR OF THE FOLLOWING: (I) A
SALE, MERGER, CONSOLIDATION OR REORGANIZATION OF THE COMPANY; OR (II) AT ANY
TIME AFTER THE DATE OF THIS AGREEMENT THAT AN INVESTOR SHALL OWN LESS THAN
100,000 SHARES OF COMMON STOCK OF THE COMPANY, BUT WITH RESPECT ONLY TO SUCH
INVESTOR.
(G)
THE RIGHT OF FIRST REFUSAL SET FORTH IN THIS
SECTION 5.1 IS NONASSIGNABLE, EXCEPT THAT (A) SUCH RIGHT IS ASSIGNABLE BY EACH
INVESTOR TO ANY AFFILIATE OF SUCH INVESTOR, (B) SUCH RIGHT IS ASSIGNABLE BETWEEN
THE INVESTORS, (C) UPON THE DEATH OF ANY INDIVIDUAL INVESTOR, SUCH RIGHT SHALL
PASS TO THE BENEFICIARIES UNDER THE DECEASED INVESTOR'S LAST WILL AND TESTAMENT
OR TO THE DISTRIBUTEES OF THE DECEASED INVESTOR'S ESTATE, AND (D) SUCH RIGHT