AND AT ANY TIME WHEN SHARES OF PREFERRED STOCK ARE
HELD BY ANY PURCHASER PARTY, THE COMPANY SHALL NOT, WITHOUT THE PRIOR WRITTEN
CONSENT OF THE HOLDER(S) OF AT LEAST A MAJORITY OF THE OUTSTANDING SHARES OF
PREFERRED STOCK, AUTHORIZE, CREATE OR ISSUE ANY CLASS OR SERIES OF EQUITY
SECURITY THAT WOULD ENTITLE THE HOLDER OF SUCH CLASS OR SERIES TO RECEIVE ANY
AMOUNT PRIOR TO THE PAYMENT IN FULL OF THE LIQUIDATION PREFERENCE (AS DEFINED IN
THE CERTIFICATE OF DESIGNATION) IN THE EVENT OF A LIQUIDATION, DISSOLUTION OR
WINDING UP OF THE COMPANY OR A DEEMED LIQUIDATION EVENT (AS DEFINED IN THE
CERTIFICATE OF DESIGNATION) FOLLOWING THE COMMENCEMENT BY OR AGAINST THE COMPANY
(AND DURING THE PENDENCY) OF ANY PROCEEDING UNDER TITLE 11 OF THE UNITED STATES
CODE.
5.5
REGISTRATION RIGHTS.
AT THE CLOSING, THE COMPANY AND THE PURCHASER
SHALL EXECUTE A REGISTRATION RIGHTS AGREEMENT SUBSTANTIALLY IN THE FORM OF
EXHIBIT B HERETO.
THE COMPANY SHALL BEAR ALL EXPENSES IN CONNECTION WITH SUCH
AGREEMENT AND THE REGISTRATION OF SHARES PURSUANT THERETO, INCLUDING ANY FILING
FEES IN CONNECTION THEREWITH.
5.6
SECTION 203.
THE RESTRICTIONS SET FORTH IN SECTION 203 OF THE
DELAWARE GENERAL CORPORATION LAW SHALL BE INAPPLICABLE TO (I) THIS AGREEMENT AND
THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING WITHOUT LIMITATION, SUBSEQUENT
ACQUISITIONS OF THE COMMON STOCK BY THE PURCHASER THROUGH PAYMENT-IN-KIND
DIVIDENDS ON THE PREFERRED STOCK, TO THE EXTENT THAT SUCH TRANSACTIONS RESULT IN
THE PURCHASER BECOMING THE OWNER OF 15% OR MORE OF THE OUTSTANDING VOTING STOCK
OF THE COMPANY, (II) ANY OTHER TRANSACTION PURSUANT TO WHICH THE PURCHASER
ACQUIRES BENEFICIAL OWNERSHIP OF COMMON STOCK, THE RESULT OF WHICH IS THAT THE
PURCHASER BECOMES THE OWNER OF 15% OR MORE OF THE OUTSTANDING COMMON STOCK, AND
(III) ANY TRANSACTIONS PURSUANT TO WHICH THE PURCHASER ACQUIRES BENEFICIAL
OWNERSHIP OF COMMON STOCK SUBSEQUENT TO THE TRANSACTIONS REFERRED TO IN THE
FOREGOING CLAUSES (I) AND (II).
10
ARTICLE 6
PARTICIPATION RIGHTS
6.1
PARTICIPATION RIGHT.
THE COMPANY AGREES THAT, EXCEPT AS SET FORTH
IN SECTION 6.5, SO LONG AS ANY SHARES OF PREFERRED STOCK ARE HELD BY ANY HOLDER,
IT WILL NOT SELL OR ISSUE IN A CAPITAL RAISING TRANSACTION: (A) ANY SHARES OF
CAPITAL STOCK OF THE COMPANY, (B) SECURITIES CONVERTIBLE INTO OR EXERCISABLE OR
EXCHANGEABLE FOR CAPITAL STOCK OF THE COMPANY, OR (C) OPTIONS, WARRANTS OR
RIGHTS CARRYING ANY RIGHTS TO PURCHASE OR RECEIVE CAPITAL STOCK OF THE COMPANY
(A "STOCK ISSUANCE"), UNLESS IT COMPLIES WITH THE PROCEDURES SET FORTH IN THIS
ARTICLE 6.
IN THE EVENT THAT THE COMPANY DESIRES TO ENGAGE IN A STOCK ISSUANCE,
THE COMPANY SHALL PROVIDE WRITTEN NOTICE (THE "ISSUANCE NOTICE") TO EACH HOLDER
IDENTIFYING THE TERMS OF THE PROPOSED STOCK ISSUANCE (INCLUDING WITHOUT
LIMITATION PRICE, MANNER OF PAYMENT, NUMBER OR AGGREGATE PRINCIPAL AMOUNT OF
SECURITIES (OR A REASONABLY LIMITED RANGE OF PRICES AND NUMBERS OR AMOUNTS OF
SECURITIES), ANTICIPATED CLOSING DATE, AND ALL OTHER MATERIAL TERMS) AND
OFFERING EACH HOLDER THE OPPORTUNITY TO PURCHASE THE GREATER OF ITS (X)
PERMITTED ALLOCATION OR (Y) PRO