THE COMPANY WILL NOT, DIRECTLY OR
INDIRECTLY, OFFER, SELL, GRANT ANY OPTION TO PURCHASE, OR OTHERWISE DISPOSE OF
(OR ANNOUNCE ANY OFFER, SALE, GRANT OR ANY OPTION TO PURCHASE OR OTHER
DISPOSITION OF) ANY OF ITS OR THE SUBSIDIARIES' EQUITY OR EQUITY EQUIVALENT
SECURITIES, INCLUDING WITHOUT LIMITATION ANY DEBT, PREFERRED STOCK OR OTHER
INSTRUMENT OR SECURITY THAT IS, AT ANY TIME DURING ITS LIFE AND UNDER ANY
CIRCUMSTANCES, CONVERTIBLE INTO OR EXCHANGEABLE OR EXERCISABLE FOR COMMON STOCK
OR COMMON STOCK EQUIVALENTS (ANY SUCH OFFER, SALE, GRANT, DISPOSITION OR
ANNOUNCEMENT BEING REFERRED TO AS A "SUBSEQUENT PLACEMENT"). UNLESS THE COMPANY
SHALL HAVE FIRST COMPLIED WITH THIS SECTION 4.5(A).
(I)
THE COMPANY SHALL DELIVER TO EACH PURCHASER A WRITTEN NOTICE (THE
"NOTICE") OF ANY PROPOSED OR INTENDED SUBSEQUENT PLACEMENT, , WHICH NOTICE SHALL
(W) IDENTIFY AND DESCRIBE THE SUBSEQUENT PLACEMENT AND THE SECURITIES PROPOSED
TO BE OFFERED, SOLD OR GRANTED THEREIN (THE "OFFERED SECURITIES"), (X) DESCRIBE
THE PRICE AND OTHER TERMS UPON WHICH THE OFFERED SECURITIES ARE TO BE ISSUED,
SOLD OR EXCHANGED, AND THE NUMBER OR AMOUNT OF THE OFFERED SECURITIES TO BE
ISSUED, SOLD OR EXCHANGED, (Y) IDENTIFY THE PERSONS OR ENTITIES WITH WHICH THE
SUBSEQUENT PLACEMENT IS TO BE EFFECTED AND (Z) OFFER (THE "OFFER") TO ISSUE AND
SELL TO OR EXCHANGE WITH EACH PURCHASER, ON THE SAME TERMS SET FORTH IN THE
NOTICE, A PRO-RATA PORTION OF THE OFFERED SECURITIES, BASED ON SUCH PURCHASER'S
PRO RATA PORTION OF THE AGGREGATE PURCHASE PRICE PAID BY THE PURCHASERS FOR ALL
OF THE SHARES PURCHASED HEREUNDER (THE "BASIC AMOUNT"), AND WITH RESPECT TO EACH
PURCHASER THAT ELECTS TO PURCHASE ITS BASIC AMOUNT, ANY ADDITIONAL PORTION OF
THE OFFERED SECURITIES ATTRIBUTABLE TO THE BASIC AMOUNTS OF OTHER PURCHASERS AS
SUCH PURCHASER SHALL INDICATE IT WILL PURCHASE OR ACQUIRE SHOULD THE OTHER
PURCHASERS SUBSCRIBE FOR LESS THAN THEIR BASIC AMOUNTS (THE "UNDERSUBSCRIPTION
AMOUNT").
17
(II)
TO ACCEPT THE OFFER, IN WHOLE OR IN PART, A PURCHASER MUST
DELIVER A WRITTEN NOTICE TO THE COMPANY PRIOR TO 6:30 PM NEW YORK TIME ON THE
SECOND TRADING DAY FOLLOWING THE DATE ON WHICH THE OFFER IS DELIVERED (AS
DETERMINED IN SECTION 7.5) (THE "ACCEPTANCE PERIOD"), SETTING FORTH THE PORTION
OF THE PURCHASER'S BASIC AMOUNT THAT SUCH PURCHASER ELECTS TO PURCHASE AND, IF
SUCH PURCHASER SHALL ELECT TO PURCHASE ALL OF ITS BASIC AMOUNT, THE
UNDERSUBSCRIPTION AMOUNT, IF ANY, THAT SUCH PURCHASER ELECTS TO PURCHASE (IN
EITHER CASE, THE "NOTICE OF ACCEPTANCE").
IF THE BASIC AMOUNTS SUBSCRIBED FOR
BY ALL PURCHASERS ARE LESS THAN THE TOTAL OF ALL OF THE BASIC AMOUNTS, THEN EACH
PURCHASER WHO HAS SET FORTH AN UNDERSUBCRIPTION AMOUNT IN ITS NOTICE OF
ACCEPTANCE SHALL BE ENTITLED TO PURCHASE, IN ADDITION TO THE BASIC AMOUNTS
SUBSCRIBED FOR, THE UNDERSUBSCRIPTION AMOUNT IT HAS SUBSCRIBED FOR; PROVIDED,
HOWEVER, THAT IF THE UNDERSUBSCRIPTION AMOUNTS SUBSCRIBED FOR EXCEED THE
DIFFERENCE BETWEEN THE TOTAL OF ALL THE BASIC AMOUNTS AND THE BASIC AMOUNTS
SUBSCRIBED FOR (THE "AVAILABLE UNDERSUBSCRIPTION AMOUNT"), EACH PURCHASER WHO
HAS SUBSCRIBED FOR ANY UNDERSUBSCRIPTION