FORTH IN THE NOTICE.
FOR A PERIOD OF FIVE (5) BUSINESS DAYS AFTER RECEIPT
OF THE NOTICE (OR, IN THE CASE OF AN UNDERWRITTEN PUBLIC OFFERING, SUCH SHORTER
PERIOD OF TIME (FOLLOWING NOTICE OF THE PURCHASE PRICE) THAT THE UNDERWRITER MAY
REQUIRE), EACH INVESTOR SHALL HAVE THE OPTION, EXERCISABLE BY WRITTEN NOTICE TO
THE COMPANY, TO ACCEPT THE COMPANY'S OFFER AS TO ALL OR ANY PART OF SUCH
INVESTOR'S BASIC AMOUNT (THE "NOTICE OF ACCEPTANCE").
IF TWO OR MORE TYPES OF
NEW ISSUE SECURITIES ARE TO BE ISSUED OR NEW ISSUE SECURITIES ARE TO BE ISSUED
TOGETHER WITH OTHER TYPES OF SECURITIES, INCLUDING, WITHOUT LIMITATION, DEBT
SECURITIES, IN A SINGLE TRANSACTION OR RELATED TRANSACTIONS, THE RIGHTS TO
PURCHASE NEW ISSUE SECURITIES GRANTED TO THE INVESTORS UNDER THIS SECTION MUST
BE EXERCISED TO PURCHASE ALL TYPES OF NEW ISSUE SECURITIES AND SUCH OTHER
SECURITIES IN THE SAME PROPORTION AS SUCH NEW ISSUE SECURITIES AND OTHER
SECURITIES ARE TO BE ISSUED BY THE COMPANY.
(C)
THE COMPANY SHALL HAVE SIXTY (60) TRADING DAYS FROM THE EXPIRATION
OF THE PERIOD SET FORTH IN SECTION 4.3(B) ABOVE TO ISSUE, SELL OR EXCHANGE ALL
OR ANY PART OF SUCH NEW ISSUE SECURITIES AS TO WHICH A NOTICE OF ACCEPTANCE HAS
NOT BEEN GIVEN BY THE INVESTORS (THE "REFUSED SECURITIES"), BUT ONLY UPON TERMS
AND CONDITIONS (INCLUDING, WITHOUT LIMITATION, UNIT PRICES AND INTEREST RATES)
THAT ARE NOT MORE FAVORABLE TO THE ACQUIRING PERSON OR PERSONS THAN THOSE SET
FORTH IN THE NOTICE.
(D)
THE PURCHASE BY THE INVESTORS OF ANY NEW ISSUE 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 ISSUE SECURITIES
REASONABLY SATISFACTORY IN FORM AND SUBSTANCE TO THE INVESTORS AND THE COMPANY
AND THEIR RESPECTIVE COUNSEL.
(E)
THE PARTICIPATION RIGHTS CONTAINED IN THIS SECTION SHALL NOT APPLY
TO THE ISSUANCE AND SALE BY THE COMPANY OF (I) SHARES OF COMMON STOCK OR COMMON
STOCK EQUIVALENTS TO EMPLOYEES, OFFICERS, OR DIRECTORS OF OR CONSULTANTS TO THE
COMPANY PURSUANT TO ANY STOCK OPTION PLAN, EMPLOYEE STOCK PURCHASE PLAN OR
SIMILAR PLAN OR INCENTIVE OR CONSULTING ARRANGEMENT APPROVED BY THE COMPANY'S
BOARD OF DIRECTORS; (II) ANY RESTRICTED STOCK AWARDS APPROVED BY THE COMPANY'S
BOARD OF DIRECTORS; (III) SECURITIES PURSUANT TO THE TRANSACTION DOCUMENTS,
(IV) SHARES OF COMMON STOCK ISSUED AS CONSIDERATION FOR THE ACQUISITION OF
ANOTHER COMPANY OR BUSINESS IN WHICH THE SHAREHOLDERS OF THE COMPANY DO NOT HAVE
AN OWNERSHIP INTEREST, WHICH ACQUISITION HAS BEEN APPROVED BY THE BOARD OF
DIRECTORS OF THE COMPANY, OR (V) THE ISSUANCE OF SECURITIES PURSUANT TO THE
EXERCISE OF CONVERSION OR PURCHASE RIGHTS PURSUANT TO ISSUED AND OUTSTANDING
CONVERTIBLE SECURITIES, OPTIONS OR WARRANTS, INCLUDING THE WARRANTS TO BE ISSUED
TO THE AGENT AND ANY SUB-AGENTS IN CONNECTION WITH THIS TRANSACTION.
17
4.4
INTEGRATION.
THE COMPANY SHALL NOT, AND SHALL USE ITS BEST
EFFORTS TO ENSURE THAT NO AFFILIATE OF THE COMPANY SHALL, SELL, OFFER FOR SALE
OR SOLICIT OFFERS TO BUY