or claim against or upon the Investor for any commission, fee or other
compensation pursuant to any agreement, arrangement or understanding entered
into by or on behalf of the Company.
2.23
Disclosure.
The representations and warranties
of the Company contained in this Article II as of the date hereof and as of the
Closing Date, do not and will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading. The Company understands and confirms that the
Investor will rely on the foregoing representations in purchasing the Purchased
Shares.
ARTICLE III
AFFIRMATIVE COVENANTS OF THE COMPANY
The Company hereby covenants as follows:
3.1
Participation Right.
(A)
PARTICIPATION RIGHT.
UNTIL DECEMBER 31,
2010, THE INVESTOR SHALL HAVE THE RIGHT, BUT NOT THE OBLIGATION, TO PURCHASE UP
TO AN AMOUNT EQUAL TO THE BASIC AMOUNT (AS DEFINED BELOW) OF ANY SALE, IN A
TRANSACTION NOT INVOLVING A PUBLIC OFFERING, OF ANY (I) SHARES OF COMMON STOCK,
(II) ANY OTHER EQUITY SECURITIES OF THE COMPANY, (III) ANY DEBT SECURITIES WHICH
BY THEIR TERMS ARE CONVERTIBLE INTO OR EXCHANGEABLE FOR ANY EQUITY SECURITY OF
THE COMPANY, (IV) ANY SECURITIES OF THE COMPANY THAT ARE A COMBINATION OF DEBT
AND EQUITY, OR (V) ANY OPTIONS, WARRANTS OR OTHER RIGHTS TO SUBSCRIBE FOR,
PURCHASE OR OTHERWISE ACQUIRE ANY SUCH EQUITY SECURITY OR ANY SUCH DEBT SECURITY
OF THE COMPANY (THE "OFFERED SECURITIES"), EXCEPT AS OTHERWISE PROVIDED IN THIS
SECTION 3.1.
THE INVESTOR SHALL HAVE THE RIGHT TO PURCHASE THAT PORTION OF THE
OFFERED SECURITIES AS THE NUMBER OF SHARES OF COMMON STOCK HELD BY THE INVESTOR
BEARS TO THE NUMBER OF SHARES OF COMMON STOCK OUTSTANDING AS OF THE DATE OF THE
OFFER (AS DEFINED BELOW) (THE "BASIC AMOUNT"), AT A PRICE AND ON SUCH OTHER
TERMS (WHICH, WITH RESPECT TO BOTH PRICE AND OTHER TERMS,
10
ARE NO LESS FAVORABLE THAN THOSE OFFERED TO THE OTHER PURCHASERS OF THE OFFERED
SECURITIES) AS SHALL HAVE BEEN SPECIFIED BY THE COMPANY IN WRITING DELIVERED TO
THE INVESTOR (THE "OFFER"), WHICH OFFER BY ITS TERMS SHALL REMAIN OPEN AND
IRREVOCABLE FOR A PERIOD OF FIFTEEN (15) BUSINESS DAYS FROM RECEIPT OF THE
OFFER.
NOTWITHSTANDING THE FOREGOING, IF SUCH OFFERED SECURITIES CONSIST OF
(X) SHARES OF COMMON STOCK OR (Y) OPTIONS, WARRANTS OR OTHER RIGHTS TO SUBSCRIBE
FOR, PURCHASE OR OTHERWISE ACQUIRE ANY SHARES OF COMMON STOCK, THE PRICE PER
SHARE OF COMMON STOCK (OR EXERCISE PRICE PER SHARE OF COMMON STOCK, AS
APPLICABLE) TO THE INVESTOR SHALL BE THE GREATER OF (1) THE CLOSING PRICE OF THE
COMPANY'S COMMON STOCK ON THE TRADING MARKET ON THE BUSINESS DAY IMMEDIATELY
PRECEDING THE DATE THAT THE OFFER IS DELIVERED TO THE INVESTOR AND (2) $2.00 PER
SHARE OF COMMON STOCK.
(B)
NOTICE OF ACCEPTANCE.
NOTICE OF THE
INVESTOR'S INTENTION TO ACCEPT, IN WHOLE OR IN PART, ANY OFFER MADE SHALL