DAY AFTER SUCH REQUEST, DELIVER A
SUBSEQUENT FINANCING NOTICE TO SUCH PURCHASER.
THE SUBSEQUENT FINANCING NOTICE
SHALL DESCRIBE IN REASONABLE DETAIL THE PROPOSED TERMS OF SUCH SUBSEQUENT
FINANCING, THE AMOUNT OF PROCEEDS INTENDED TO BE RAISED THEREUNDER, THE PERSON
WITH WHOM SUCH SUBSEQUENT FINANCING IS PROPOSED TO BE EFFECTED, AND ATTACHED TO
WHICH SHALL BE A TERM SHEET OR SIMILAR DOCUMENT RELATING THERETO.
IF BY 5:30
P.M. (NEW YORK CITY TIME) ON THE 5TH BUSINESS DAY AFTER ALL OF THE PURCHASERS
HAVE RECEIVED THE PRE-NOTICE, NOTIFICATIONS BY THE PURCHASERS OF THEIR
WILLINGNESS TO PARTICIPATE IN THE SUBSEQUENT FINANCING (OR TO CAUSE THEIR
DESIGNEES TO PARTICIPATE) IS, IN THE AGGREGATE, LESS THAN THE TOTAL AMOUNT OF
THE SUBSEQUENT FINANCING, THEN THE COMPANY MAY EFFECT THE REMAINING PORTION OF
SUCH SUBSEQUENT FINANCING ON THE TERMS AND TO THE PERSONS SET FORTH IN THE
SUBSEQUENT FINANCING NOTICE.
IF THE COMPANY RECEIVES NO NOTICE FROM A PURCHASER
AS OF SUCH 5TH BUSINESS DAY, SUCH PURCHASER SHALL BE DEEMED TO HAVE NOTIFIED THE
COMPANY THAT IT DOES NOT ELECT TO PARTICIPATE.
THE COMPANY MUST PROVIDE THE
PURCHASERS WITH A SECOND SUBSEQUENT FINANCING NOTICE, AND THE PURCHASERS WILL
AGAIN HAVE THE RIGHT OF PARTICIPATION SET FORTH ABOVE IN THIS SECTION 4.13, IF
THE SUBSEQUENT FINANCING SUBJECT TO THE INITIAL SUBSEQUENT FINANCING NOTICE IS
NOT CONSUMMATED FOR ANY REASON ON THE TERMS SET FORTH IN SUCH SUBSEQUENT
FINANCING NOTICE WITHIN 20 BUSINESS DAYS AFTER THE DATE OF THE INITIAL
SUBSEQUENT FINANCING NOTICE. IN THE EVENT THE COMPANY RECEIVES RESPONSES TO
SUBSEQUENT FINANCING NOTICES FROM PURCHASERS SEEKING TO PURCHASE MORE THAN THE
AGGREGATE AMOUNT OF THE SUBSEQUENT FINANCING, EACH SUCH PURCHASER SHALL HAVE THE
RIGHT TO PURCHASE THEIR PRO RATA PORTION (AS DEFINED BELOW) OF THE PARTICIPATION
MAXIMUM.
"PRO RATA PORTION" IS THE RATIO OF (X) THE SUBSCRIPTION AMOUNT OF
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SECURITIES PURCHASED BY A PARTICIPATING PURCHASER AND (Y) THE SUM OF THE
AGGREGATE SUBSCRIPTION AMOUNT OF ALL PARTICIPATING PURCHASERS.
NOTWITHSTANDING
THE FOREGOING, THIS SECTION 4.13 SHALL NOT APPLY IN RESPECT OF AN EXEMPT
ISSUANCE.
4.14
SUBSEQUENT EQUITY SALES.
FROM THE DATE HEREOF UNTIL 180 DAYS AFTER
THE EFFECTIVE DATE, NEITHER THE COMPANY NOR ANY SUBSIDIARY SHALL FILE A
REGISTRATION STATEMENT WITH RESPECT TO ANY SHARES OF COMMON STOCK OR COMMON
STOCK EQUIVALENTS UNLESS THE COMPANY PROVIDES EACH PURCHASER WITH AN
UNCONDITIONAL OPINION OF COUNSEL THAT SUCH OTHER REGISTRATION STATEMENT WILL NOT
CAUSE THE SECURITIES TO BE INTEGRATED WITH SUCH SUBSEQUENT OFFERING FOR PURPOSES
OF THE SECURITIES ACT OR THE RULES OF ANY TRADING MARKET; PROVIDED, HOWEVER, THE
180 DAY PERIOD SET FORTH IN THIS SECTION 4.14 SHALL BE EXTENDED FOR THE NUMBER
OF BUSINESS DAYS DURING SUCH PERIOD IN WHICH (Y) TRADING IN THE COMMON STOCK IS
SUSPENDED BY ANY TRADING MARKET, OR (Z) FOLLOWING THE EFFECTIVE DATE, THE
REGISTRATION STATEMENT IS NOT EFFECTIVE OR THE PROSPECTUS INCLUDED IN THE
REGISTRATION STATEMENT MAY NOT BE USED BY THE PURCHASERS FOR THE RESALE OF THE
UNDERLYING SHARES.
IN ADDITION TO THE LIMITATIONS SET FORTH HEREIN, FROM THE