Common use of Issuance Notice Clause in Contracts

Issuance Notice. The Company shall give each Person that on the date of an Issuance Notice is a Qualified Stockholder written notice of the Company’s intention to issue or sell New Securities (which notice may be provided by posting the requisite information on a Secure Site and notifying (or causing notification to be delivered to) each of such Qualified Stockholders of such posting in writing) (the “Issuance Notice”), describing the type and terms of the New Securities, the price at which such New Securities will be issued or sold and the general terms upon which the Company proposes to issue or sell the New Securities, including the anticipated date of such issuance, sale or distribution, the general use of proceeds thereof, a description of both the business purpose of the offering of such New Securities and the dilutive effects, if any, of such offering, and the record date for determining Qualified Stockholders and the pro rata share of each of them which, if not specified in the Issuance Notice, shall be the date of the Issuance Notice (the “Preemptive Offer Record Date”). Each Qualified Stockholder shall have ten (10) Business Days from the date the Issuance Notice is sent to deliver notice (the “Response Notice”) of its intention to purchase all or any portion of its pro rata share of the New Securities, based on the ratio of the shares of Company Common Stock held by such Qualified Stockholder on the Preemptive Offer Record Date to the number of shares of Company Common Stock held by all the Qualified Stockholders on the Preemptive Offer Record Date, and stating therein the quantity of New Securities it intends to purchase (each Qualified Stockholder who delivers a Response Notice hereunder is a “Purchaser” for purposes of this Section 4.4); provided that if the Company determines that a ten (10)-Business Day period is not practical, the Company shall specify a shorter period (which shall be as long a period as is reasonably practical but in no event less than three (3) Business Days) in the Issuance Notice. Such Response Notice shall constitute the irrevocable agreement of such Purchaser to purchase the quantity of New Securities indicated in the Response Notice at the price and upon the terms stated in the Issuance Notice; provided, however, that if the Company is proposing to issue, sell or distribute securities for consideration other than all cash, and subject to the limitations on the rights set forth in this Section 4.4, the Company shall accept from such Purchaser either non-cash consideration that is reasonably comparable to the non-cash consideration proposed by the Company or the cash value of such non-cash consideration, in each case as determined in good faith by the Board. Any purchase of New Securities by a Purchaser pursuant to this Section 4.4 shall be consummated on or prior to the later of (x) the date on which all other Offered Securities described in the applicable Issuance Notice are issued, sold or distributed and (y) the second (2nd) Business Day following delivery of the Response Notice by such Purchaser.

Issuance Notice. The On any Trading Day during the Commitment Period, the Company shall give each Person that on the date of may deliver an Issuance Notice is a Qualified Stockholder written notice to the Agent, subject to the satisfaction of the Company’s intention to issue or sell New Securities (which notice may be provided by posting the requisite information on a Secure Site and notifying (or causing notification to be delivered to) each of such Qualified Stockholders of such posting conditions set forth in writing) (the “Issuance Notice”), describing the type and terms of the New Securities, the price at which such New Securities will be issued or sold and the general terms upon which the Company proposes to issue or sell the New Securities, including the anticipated date of such issuance, sale or distribution, the general use of proceeds thereof, a description of both the business purpose of the offering of such New Securities and the dilutive effects, if any, of such offering, and the record date for determining Qualified Stockholders and the pro rata share of each of them which, if not specified in the Issuance Notice, shall be the date of the Issuance Notice (the “Preemptive Offer Record Date”). Each Qualified Stockholder shall have ten (10) Business Days from the date the Issuance Notice is sent to deliver notice (the “Response Notice”) of its intention to purchase all or any portion of its pro rata share of the New Securities, based on the ratio of the shares of Company Common Stock held by such Qualified Stockholder on the Preemptive Offer Record Date to the number of shares of Company Common Stock held by all the Qualified Stockholders on the Preemptive Offer Record Date, and stating therein the quantity of New Securities it intends to purchase (each Qualified Stockholder who delivers a Response Notice hereunder is a “Purchaser” for purposes of this Section 4.4); provided that if the Company determines that a ten (10)-Business Day period is not practical, the Company shall specify a shorter period (which shall be as long a period as is reasonably practical but in no event less than three (3) Business Days) in the Issuance Notice. Such Response Notice shall constitute the irrevocable agreement of such Purchaser to purchase the quantity of New Securities indicated in the Response Notice at the price and upon the terms stated in the Issuance Notice5.01; provided, however, that notwithstanding anything in this Agreement to the contrary, the Agent shall have no further obligations with respect to any Issuance Notice if and to the extent the aggregate number of Issuance Shares sold pursuant thereto, together with the aggregate number of Common Shares previously sold under the Sales Agency Agreements, shall exceed the Maximum Program Amount. If the Agent wishes to accept such proposed terms included in the Issuance Notice (which it may decline to do so for any reason in its sole discretion) or, following discussion with the Company, wishes to propose modified terms, the Agent will, prior to 4:30 p.m. (New York City time) or, if later, within three hours after receipt of the Issuance Notice, on the same business day on which such Issuance Notice is delivered to the Agent, issue to the Company a notice by email (or other method mutually agreed to in writing by the parties) addressed to all of the individuals from the Company and the Agent set forth on Schedule 1) accepting such terms (the “Agent Acceptance”) or setting forth the terms that the Agent is proposing willing to issueaccept. Where the terms provided in the Issuance Notice are proposed to be modified as provided for in the immediately preceding sentence, sell such terms will not be binding on the Company or distribute securities for consideration other than all cash, and subject the Agent until the Company delivers to the limitations Agent an acceptance by email (or other method mutually agreed to in writing by the parties) of all of the terms of such Issuance Notice, as proposed to be modified (the “Company Acceptance” and, whichever of it or the Agent Acceptance becomes effective, the “Acceptance”), which email or other communication shall be addressed to all of the individuals from the Company and the Agent set forth on Schedule 1 and must be delivered not later than 6:00 p.m. (New York City time) or, if later, within three hours after receipt of the modified terms proposed by the Agent, on the rights set forth in this Section 4.4same business day. Subject to the foregoing, the Company shall accept have the right, in its sole discretion, to amend at any time and from such Purchaser either non-cash consideration that is reasonably comparable time to time any Issuance Notice by notice to the non-cash consideration proposed by Agent and, if so notified, the Agent shall, as soon as practicable, modify its offers to sell consistent with any such amendment notice; provided, however, that the Company or may not amend the cash value number of Issuance Shares if such amended number of Issuance Shares is less than the Actual Sold Amount as of the date of such non-cash consideration, in each case as determined in good faith by the Board. Any purchase of New Securities by a Purchaser pursuant to this Section 4.4 shall be consummated on or prior to the later of (x) the date on which all other Offered Securities described in the applicable Issuance Notice are issued, sold or distributed and (y) the second (2nd) Business Day following delivery of the Response Notice by such Purchaseramendment.

Issuance Notice. The On any Trading Day during the Commitment Period, the Company shall give each Person that on the date of may deliver an Issuance Notice is a Qualified Stockholder written notice to the Agent, subject to the satisfaction of the Company’s intention to issue or sell New Securities (which notice may be provided by posting the requisite information on a Secure Site and notifying (or causing notification to be delivered to) each of such Qualified Stockholders of such posting conditions set forth in writing) (the “Issuance Notice”), describing the type and terms of the New Securities, the price at which such New Securities will be issued or sold and the general terms upon which the Company proposes to issue or sell the New Securities, including the anticipated date of such issuance, sale or distribution, the general use of proceeds thereof, a description of both the business purpose of the offering of such New Securities and the dilutive effects, if any, of such offering, and the record date for determining Qualified Stockholders and the pro rata share of each of them which, if not specified in the Issuance Notice, shall be the date of the Issuance Notice (the “Preemptive Offer Record Date”). Each Qualified Stockholder shall have ten (10) Business Days from the date the Issuance Notice is sent to deliver notice (the “Response Notice”) of its intention to purchase all or any portion of its pro rata share of the New Securities, based on the ratio of the shares of Company Common Stock held by such Qualified Stockholder on the Preemptive Offer Record Date to the number of shares of Company Common Stock held by all the Qualified Stockholders on the Preemptive Offer Record Date, and stating therein the quantity of New Securities it intends to purchase (each Qualified Stockholder who delivers a Response Notice hereunder is a “Purchaser” for purposes of this Section 4.4); provided that if the Company determines that a ten (10)-Business Day period is not practical, the Company shall specify a shorter period (which shall be as long a period as is reasonably practical but in no event less than three (3) Business Days) in the Issuance Notice. Such Response Notice shall constitute the irrevocable agreement of such Purchaser to purchase the quantity of New Securities indicated in the Response Notice at the price and upon the terms stated in the Issuance Notice5.01; provided, however, that notwithstanding anything in this Agreement to the contrary, the Agent shall have no further obligations with respect to any Issuance Notice if and to the extent the aggregate number of Issuance Shares sold pursuant thereto, together with the aggregate number of Common Shares previously sold under the Sales Agency Agreements, shall exceed the Maximum Program Amount. If the Agent wishes to accept such proposed terms included in the Issuance Notice (which it may decline to do so for any reason in its sole discretion) or, following discussion with the Company, wishes to propose modified terms, the Agent will, prior to 4:30 p.m. (New York City time) or, if later, within three hours after receipt of the Issuance Notice, on the same business day on which such Issuance Notice is delivered to the Agent, issue to the Company a notice by email (or other method mutually agreed to in writing by the parties) addressed to all of the individuals from the Company and the Agent set forth on Schedule I) accepting such terms (the “Agent Acceptance”) or setting forth the terms that the Agent is proposing willing to issueaccept. Where the terms provided in the Issuance Notice are proposed to be modified as provided for in the immediately preceding sentence, sell such terms will not be binding on the Company or distribute securities for consideration other than all cash, and subject the Agent until the Company delivers to the limitations Agent an acceptance by email (or other method mutually agreed to in writing by the parties) of all of the terms of such Issuance Notice, as proposed to be modified (the “Company Acceptance” and, whichever of it or the Agent Acceptance becomes effective, the “Acceptance”), which email or other communication shall be addressed to all of the individuals from the Company and the Agent set forth on Schedule I and must be delivered not later than 6:00 p.m. (New York City time) or, if later, within three hours after receipt of the modified terms proposed by the Agent, on the rights set forth in this Section 4.4same business day. Subject to the foregoing, the Company shall accept have the right, in its sole discretion, to amend at any time and from such Purchaser either non-cash consideration that is reasonably comparable time to time any Issuance Notice by notice to the non-cash consideration proposed by Agent and, if so notified, the Agent shall, as soon as practicable, modify its offers to sell consistent with any such amendment notice; provided, however, that the Company or may not amend the cash value number of Issuance Shares if such amended number of Issuance Shares is less than the Actual Sold Amount as of the date of such non-cash consideration, in each case as determined in good faith by the Board. Any purchase of New Securities by a Purchaser pursuant to this Section 4.4 shall be consummated on or prior to the later of (x) the date on which all other Offered Securities described in the applicable Issuance Notice are issued, sold or distributed and (y) the second (2nd) Business Day following delivery of the Response Notice by such Purchaseramendment.

Issuance Notice. The Company or its Subsidiary, as applicable, shall give each Person that on the date of an Issuance Notice is a Qualified Stockholder Shareholder written notice of the CompanyCompany or such Subsidiary’s intention to issue or sell New Securities (which notice may be provided by posting the requisite information on a Secure Site and notifying (or causing notification to be delivered to) each of such Qualified Stockholders Shareholders of such posting in writing) (the “Issuance Notice”), describing the type and terms of the New Securities, the price at which such New Securities will be issued or sold and the general terms upon which the Company or its Subsidiary proposes to issue or sell the New Securities, including the anticipated date of such issuance, sale or distribution, the general use of proceeds thereof, a description of both the business purpose of the offering of such New Securities and the dilutive effects, if any, of such offering, and the record date for determining Qualified Stockholders Shareholders and the pro rata share of each of them which, if not specified in the Issuance Notice, shall be the date of the Issuance Notice (the “Preemptive Offer Record Date”). Each Qualified Stockholder Shareholder shall have ten (10) Business Days from the date the Issuance Notice is sent to deliver notice (the “Response Notice”) of its intention to purchase all or any portion of its pro rata share of the New Securities, based on the ratio of the shares of Company Common Stock Shares held by such Qualified Stockholder Shareholder on the Preemptive Offer Record Date to the number of shares of Company Common Stock Shares held by all the Qualified Stockholders Shareholders on the Preemptive Offer Record Date, and stating therein the quantity of New Securities it intends to purchase (each Qualified Stockholder Shareholder who delivers a Response Notice hereunder is a “Purchaser” for purposes of this Section 4.44.6); provided that if the Company or its Subsidiary, as applicable, determines that a ten (10)-Business Day period is not practical, the Company or the its Subsidiary, as applicable, shall specify a shorter period (which shall be as long a period as is reasonably practical but in no event less than three (3) Business Days) in the Issuance Notice. Such Response Notice shall constitute the irrevocable agreement of such Purchaser to purchase the quantity of New Securities indicated in the Response Notice at the price and upon the terms stated in the Issuance Notice; provided, however, that if the Company or its Subsidiary, as applicable is proposing to issue, sell or distribute securities for consideration other than all cash, and subject to the limitations on the rights set forth in this Section 4.44.6, the Company or its Subsidiary, as applicable, shall accept from such Purchaser either non-cash consideration that is reasonably comparable to the non-cash consideration proposed by the Company or such Subsidiary or the cash value of such non-cash consideration, in each case as determined in good faith by the BoardBoard or the board of such Subsidiary. Any purchase of New Securities by a Purchaser pursuant to this Section 4.4 4.6 shall be consummated on or prior to the later of (x) the date on which all other Offered Securities described in the applicable Issuance Notice are issued, sold or distributed and (y) the second (2nd) Business Day following delivery of the Response Notice by such Purchaser.

Issuance Notice. The If the Company proposes to undertake an issuance of New Securities, it shall give each Person that on the date of an Issuance Notice is a Qualified Stockholder written notice of the Company’s intention to issue or sell New Securities (which notice may be provided by posting the requisite information on a Secure Site and notifying (or causing notification to be delivered to) each of such Qualified Stockholders of such posting in writing) (the an “Issuance Notice”)) of its intention, describing the number and type and terms of the New Securities, and the proposed offer price at which for such New Securities will be issued or sold and the general terms upon which the Company proposes to issue or sell the such New Securities, including the anticipated date of such issuance, sale or distribution, the general use of proceeds thereof, a description of both the business purpose . Each Stockholder shall have twenty (20) days after its receipt of the offering Issuance Notice to agree to purchase up to such Stockholder’s Pro Rata Share of such New Securities and the dilutive effects, if any, of such offering, and the record date for determining Qualified Stockholders and the pro rata share of each of them which, if not specified in the Issuance Notice, shall be the date of the Issuance Notice (the “Preemptive Offer Record Date”). Each Qualified Stockholder shall have ten (10) Business Days from the date the Issuance Notice is sent to deliver notice (the “Response Notice”) of its intention to purchase all or any portion of its pro rata share of the New Securities, based on the ratio of the shares of Company Common Stock held by such Qualified Stockholder on the Preemptive Offer Record Date to the number of shares of Company Common Stock held by all the Qualified Stockholders on the Preemptive Offer Record Date, and stating therein the quantity of New Securities it intends to purchase (each Qualified Stockholder who delivers a Response Notice hereunder is a “Purchaser” for purposes of this Section 4.4); provided that if the Company determines that a ten (10)-Business Day period is not practical, the Company shall specify a shorter period (which shall be as long a period as is reasonably practical but in no event less than three (3) Business Days) in the Issuance Notice. Such Response Notice shall constitute the irrevocable agreement of such Purchaser to purchase the quantity of New Securities indicated in the Response Notice at the price and upon the terms stated specified in the Acceptance Notice by giving written notice to the Company (the “Acceptance Notice”) and indicating therein the number of New Securities to be purchased. The Company shall, at the closing of the issuance of the New Securities, sell to each Stockholder such number of New Securities as such Stockholder shall have agreed to purchase in the Acceptance Notice. In the event any Stockholder fails to exercise such preemptive right within such twenty (20) day period, the Company will have sixty (60) days thereafter to sell or enter into a binding agreement (pursuant to which the sale of New Securities covered thereby will be, and is, consummated within sixty (60) days from the date of such agreement) to sell the New Securities as to which such Stockholder’s preemptive right was not exercised, at a price and upon such other terms no more favorable to the purchasers thereof than those specified in the Issuance Notice; provided. In the event the Company has not sold such New Securities within such sixty (60) day period (or sold and issued New Securities in accordance with the foregoing within sixty (60) days from the date of such agreement), howeverthe Company will not thereafter issue or sell any New Securities without first offering such New Securities to such Stockholders in the manner provided above. Notwithstanding anything in this Agreement to the contrary, that if for so long as the Company is proposing a Public Filer, in no event will the Company be required to issue, sell or distribute securities for consideration other than all cashdeliver an Issuance Notice to any Public Stockholder, and subject no such Public Stockholder shall have a right to the limitations on the exercise its rights set forth in under this Section 4.4Article 7 if such Issuance Notice is a condition precedent to such exercise (or election to exercise), the Company shall accept from and any such Purchaser either non-cash consideration that is reasonably comparable to the non-cash consideration proposed by the Company or the cash value of such non-cash considerationIssuance Notice, in each case as determined in good faith by the Board. Any purchase of New Securities by a Purchaser pursuant to this Section 4.4 shall be consummated on or prior to the later of (x) the date on which all other Offered Securities described in the applicable Issuance Notice are issuedResponsible Officer, sold or distributed and (y) the second (2nd) Business Day following delivery of the Response Notice by such Purchaserwould constitute Restricting Information.

Issuance Notice. The Company shall give each Person that on Subject to the terms and conditions of this Section and applicable securities laws, if, following the date of an Issuance Notice is a Qualified Stockholder written notice of the Company’s intention to issue or sell New Securities (which notice may be provided by posting the requisite information on a Secure Site hereof and notifying (or causing notification to be delivered to) each of such Qualified Stockholders of such posting in writing) (the “Issuance Notice”)until December 31, describing the type and terms of the New Securities2010, the price at which such New Securities will be issued or sold and the general terms upon which the Company proposes to issue or sell any securities to a purchaser that is not an Affiliate of the New SecuritiesCompany (the “Proposed Third Party Purchaser”), the Company shall, not less than fifteen (15) business days prior to the consummation of such issuance or sale, offer such securities to Citadel as long as Citadel holds at least 10% of the outstanding HY Notes, 20% of the outstanding Convertible Notes (including the anticipated date principal amount of the Convertible Notes that have been converted into Conversion Shares as if such issuanceconversion had not taken place and to the extent that such Conversion Shares are held by Citadel at the time of calculating such percentage) or 3% of the total outstanding equity interest in the Company on a fully-diluted basis (including, sale or distributionfor the avoidance of doubt, any Conversion Shares) (the general use “Alternative Minimum Holding”) by sending written notice (an “Issuance Notice”) to Citadel, which shall state (a) the identity of proceeds thereofthe Proposed Third Party Purchaser, (b) a description of both the business purpose securities to be issued or sold, including detailed terms of such securities, (c) the amount of the offering of such New Securities and securities proposed to be issued to the dilutive effects, if any, of such offering, and the record date for determining Qualified Stockholders and the pro rata share of each of them which, if not specified in the Issuance Notice, shall be the date of the Issuance Notice Proposed Third Party Purchaser (the “Preemptive Offer Record DateOffered New Securities”). Each Qualified Stockholder shall have ten ; (10d) Business Days from the date proposed purchase price for the Issuance Notice is sent to deliver notice Offered New Securities (the “Response NoticeIssuance Price”); and (e) the terms and conditions of its intention to purchase all or any portion of its pro rata share of such proposed sale. The Issuance Notice shall also certify that the Company has received a firm offer from the Proposed Third Party Purchaser and in good faith believes a binding agreement for the Offered New Securities, based Securities is obtainable on the ratio of the shares of Company Common Stock held by such Qualified Stockholder on the Preemptive Offer Record Date to the number of shares of Company Common Stock held by all the Qualified Stockholders on the Preemptive Offer Record Date, and stating therein the quantity of New Securities it intends to purchase (each Qualified Stockholder who delivers a Response Notice hereunder is a “Purchaser” for purposes of this Section 4.4); provided that if the Company determines that a ten (10)-Business Day period is not practical, the Company shall specify a shorter period (which shall be as long a period as is reasonably practical but in no event less than three (3) Business Days) terms set forth in the Issuance Notice. Such Response The Issuance Notice shall constitute also include a copy of any written proposal, term sheet or letter of intent or other agreement or understanding relating to the irrevocable agreement of such Purchaser to purchase the quantity of Offered New Securities indicated in and proof satisfactory to the Response Notice at Company that the price and upon the terms stated in Offered New Securities will not violate any applicable securities laws. Upon delivery of the Issuance Notice; provided, however, that if the Company is proposing to issue, sell or distribute securities for consideration other than all cash, such offer shall be irrevocable unless and subject to the limitations on until the rights set forth in this Section 4.4, the Company of first refusal provided for herein shall accept from such Purchaser either non-cash consideration that is reasonably comparable to the non-cash consideration proposed by the Company have been waived or the cash value of such non-cash consideration, in each case as determined in good faith by the Board. Any purchase of New Securities by a Purchaser pursuant to this Section 4.4 shall be consummated on or prior to the later of (x) the date on which all other Offered Securities described in the applicable Issuance Notice are issued, sold or distributed and (y) the second (2nd) Business Day following delivery of the Response Notice by such Purchaserhave expired.

Issuance Notice. The Company shall give each Person that on Subject to the terms and conditions of this Section and applicable securities laws, if, following the date of an Issuance Notice is a Qualified Stockholder written notice of the Company’s intention to issue or sell New Securities (which notice may be provided by posting the requisite information on a Secure Site hereof and notifying (or causing notification to be delivered to) each of such Qualified Stockholders of such posting in writing) (the “Issuance Notice”)until December 31, describing the type and terms of the New Securities2010, the price at which such New Securities will be issued or sold and the general terms upon which the Company proposes to issue or sell (other than the New Securitiessale of securities (a “Shelf Registration”) effected by preparing and filing a registration statement on Form S-3 (the “Shelf Registration Statement”) in compliance with the U.S. Securities Act of 1933, including as amended, and the anticipated date declaration or ordering of the effectiveness of such issuance, sale registration statement by the U.S. Securities and Exchange Commission (the “Commission”)) any securities to a purchaser or distributionpurchasers that are not an Affiliate of the Company (the “Proposed Third Party Purchaser”), the general use Company shall, provided Citadel at such time holds not less than 20.0% of proceeds thereofthe Notes then outstanding and not converted, not less than fifteen (15) business days prior to the consummation of such issuance or sale of securities of the Company, offer such securities to Citadel by sending written notice (an “Issuance Notice”) to Citadel, which shall state (a) the identity of the Proposed Third Party Purchaser, (b) a description of both the business purpose securities to be issued or sold, including detailed terms of such securities, (c) the amount of the offering of such New Securities and securities proposed to be issued to the dilutive effects, if any, of such offering, and the record date for determining Qualified Stockholders and the pro rata share of each of them which, if not specified in the Issuance Notice, shall be the date of the Issuance Notice Proposed Third Party Purchaser (the “Preemptive Offer Record DateOffered New Securities”). Each Qualified Stockholder shall have ten , (10d) Business Days from the date proposed purchase price for the Issuance Notice is sent to deliver notice Offered New Securities (the “Response NoticeIssuance Price”); and (e) the terms and conditions of its intention to purchase all or any portion of its pro rata share of such proposed sale. The Issuance Notice shall also certify that the Company has received a firm offer from the Proposed Third Party Purchaser and in good faith believes a binding agreement for the Offered New Securities, based Securities is obtainable on the ratio of the shares of Company Common Stock held by such Qualified Stockholder on the Preemptive Offer Record Date to the number of shares of Company Common Stock held by all the Qualified Stockholders on the Preemptive Offer Record Date, and stating therein the quantity of New Securities it intends to purchase (each Qualified Stockholder who delivers a Response Notice hereunder is a “Purchaser” for purposes of this Section 4.4); provided that if the Company determines that a ten (10)-Business Day period is not practical, the Company shall specify a shorter period (which shall be as long a period as is reasonably practical but in no event less than three (3) Business Days) terms set forth in the Issuance Notice. Such Response The Issuance Notice shall constitute also include a copy of any written proposal, term sheet or letter of intent or other agreement or understanding relating to the irrevocable agreement of such Purchaser to purchase the quantity of Offered New Securities indicated in and proof satisfactory to the Response Notice at Company that the price and upon the terms stated in Offered New Securities will not violate any applicable securities laws. Upon delivery of the Issuance Notice; provided, however, that if the Company is proposing to issue, sell or distribute securities for consideration other than all cash, such offer shall be irrevocable unless and subject to the limitations on until the rights set forth in this Section 4.4, the Company of first refusal provided for herein shall accept from such Purchaser either non-cash consideration that is reasonably comparable to the non-cash consideration proposed by the Company have been waived or the cash value of such non-cash consideration, in each case as determined in good faith by the Board. Any purchase of New Securities by a Purchaser pursuant to this Section 4.4 shall be consummated on or prior to the later of (x) the date on which all other Offered Securities described in the applicable Issuance Notice are issued, sold or distributed and (y) the second (2nd) Business Day following delivery of the Response Notice by such Purchaserhave expired.

Issuance Notice. The Company shall give each Person that on the date of an Issuance Notice is a Qualified Stockholder written notice of the Company’s intention to issue or sell New Securities (which notice may be provided by posting the requisite information on a Secure Site and notifying (or causing notification to be delivered to) each of such Qualified Stockholders of such posting in writing) (the “Issuance Notice”), describing the type and terms of the New Securities, the price at which such New Securities will be issued or sold and the general terms upon which the Company proposes to issue or sell the New Securities, including the anticipated date of such issuance, sale or distribution, the general use of proceeds thereof, a description of both the business purpose of the offering of such New Securities and the dilutive effects, if any, of such offering, and the record date for determining Qualified Stockholders and the pro rata share of each of them which, if not specified in the Issuance Notice, shall be the date of the Issuance Notice (the “Preemptive Offer Record Date”). Each Qualified Stockholder shall have ten (10) Business Days from the date the Issuance Notice is sent to deliver notice (the “Response Notice”) of its intention to purchase all or any portion of its pro rata share of the New Securities, based on the ratio of the shares of Company Common Stock on a Fully Diluted Basis held by such Qualified Stockholder on the Preemptive Offer Record Date to the number of shares of Company Common Stock on a Fully Diluted Basis held by all the Qualified Stockholders on the Preemptive Offer Record Date, and stating therein the quantity of New Securities it intends to purchase (each Qualified Stockholder who delivers a Response Notice hereunder is a “Purchaser” for purposes of this Section 4.44.6); provided that if the Company determines that a ten (10)-Business Day period is not practical, the Company shall specify a shorter period (which shall be as long a period as is reasonably practical but in no event less than three (3) Business Days) in the Issuance Notice. Such Response Notice shall constitute the irrevocable agreement of such Purchaser to purchase the quantity of New Securities indicated in the Response Notice at the price and upon the terms stated in the Issuance Notice; provided, however, that if the Company is proposing to issue, sell or distribute securities for consideration other than all cash, and subject to the limitations on the rights set forth in this Section 4.44.6, the Company shall accept from such Purchaser either non-cash consideration that is reasonably comparable to the non-cash consideration proposed by the Company or the cash value of such non-cash consideration, in each case consideration as determined in good faith by the Board. Any purchase of New Securities by a Purchaser pursuant to this Section 4.4 4.6 shall be consummated on or prior to the later of (x) the date on which all other Offered Securities offered securities described in the applicable Issuance Notice are issued, sold or distributed and (y) the second (2nd) Business Day following delivery of the Response Notice by such Purchaser.

Issuance Notice. The Company shall give each Person that on the date of an Issuance Notice is a Qualified Stockholder written notice shall disclose in reasonable detail the number of the Company’s intention shares of stock proposed to issue or sell New Securities (which notice may be provided by posting the requisite information on a Secure Site and notifying (or causing notification to be delivered to) each of such Qualified Stockholders of such posting in writing) (the “Issuance Notice”), describing the type and terms of the New Securities, the price at which such New Securities will be issued or sold the amount of debt to be incurred (collectively, the "SECURITIES") and the general terms and conditions upon which the Company proposes to issue or effect the issuance of the Securities and shall confirm that the offer by the Company to sell the New Securities, including the anticipated date of such issuance, sale or distribution, the general use of proceeds thereof, a description of both the business purpose portion of the offering Securities specified below, constituted by the service of such New Securities and the dilutive effects, if any, of such offering, and the record date for determining Qualified Stockholders and the pro rata share of each of them which, if not specified in the Issuance Notice, is irrevocable until all the Stockholders have either accepted or rejected (or been deemed to have rejected) the offer as provided below. The Stockholders shall, collectively, have the right to purchase, in whole or in part, a portion of such Securities proportionate to the percentage of the fully diluted equity of the Company represented by the shares of Common Stock issuable and issued upon conversion of the Preferred Stock then owned by the Stockholders. The Stockholders may elect to purchase such portion of the Securities, in whole or in part, upon the same terms and conditions as those set forth in the Issuance Notice by delivering a written notice of such election to the Company within 15 days after the Service Date based on their respective pro rata ownership of the shares of Common Stock issuable and issued upon conversion of the Preferred Stock in proportion to the fully diluted equity of the Company. The failure by the Stockholders to serve notice in accordance with the foregoing provisions shall be deemed a rejection of the date offer constituted by the service of the Issuance Notice (the “Preemptive Offer Record Date”)Notice. Each Qualified In addition, each Stockholder shall have ten (10) Business Days from the date the Issuance Notice is sent a right of over-allotment such that if any Stockholder fails to deliver notice (the “Response Notice”) of exercise its intention rights hereunder to purchase all or any portion of its pro rata share of the New Securities, based the other Stockholders may purchase the non-purchasing Stockholder's portion on a pro rata basis within 10 days from the ratio date the Company provides written notice to such other Stockholders that such non-purchasing Stockholder failed to exercise its right hereunder to purchase its pro rata share of Securities. The Company shall promptly give written notice to all the other Stockholders of any Stockholder's failure to exercise its right hereunder to purchase Securities. The failure by any Stockholder to deliver written notice to the Company of such Stockholder's election to purchase additional Securities within the above-mentioned 10-day time period shall be deemed a rejection of the shares of Company Common Stock held by such Qualified Stockholder on the Preemptive Offer Record Date offer to purchase additional Securities pursuant to the number of shares of Company Common Stock held by all over-allotment right. If the Qualified Stockholders on the Preemptive Offer Record Date, and stating therein the quantity of New Securities it intends elect to purchase any or all of the Securities, the closing of such purchase shall occur upon the later to occur of (each Qualified Stockholder who delivers a Response Notice hereunder is a “Purchaser” for purposes x) the expiration of this Section 4.4); provided that if 120 days from the Service Date and (y) 5 days following the satisfaction of any anti-trust governmental authority consents, or other applicable governmental authority conditions, to the consummation of the issuance. If the Stockholders elect not to purchase all of the Securities, then the Company determines that may issue any such Securities not purchased by the Stockholders at a ten (10)-Business Day period is not practical, price and on terms no more favourable to the Company shall specify a shorter period (which shall be as long a period as is reasonably practical but in no event less transferee(s) thereof than three (3) Business Days) specified in the Issuance NoticeNotice during the 120-day period immediately following the Service Date. Such Response Notice Any Securities not issued within such 120-day period shall constitute thereupon , if still proposed to be issued by the irrevocable agreement of such Purchaser to purchase the quantity of New Securities indicated in the Response Notice at the price and upon the terms stated in the Issuance Notice; providedCompany, however, that if the Company is proposing to issue, sell or distribute securities for consideration other than all cash, and be subject to the limitations on provisions of the preemptive rights set forth in this Section 4.4, the Company shall accept from such Purchaser either non-cash consideration that is reasonably comparable to the non-cash consideration proposed by the Company or the cash value of such non-cash consideration, in each case as determined in good faith by the Board. Any purchase of New Securities by a Purchaser pursuant to this Section 4.4 shall be consummated on or prior to the later of (x) the date on which all other Offered Securities described in the applicable Issuance Notice are issued, sold or distributed and (y) the second (2nd) Business Day following delivery of the Response Notice by such Purchaser3.

Issuance Notice. The Company shall give each Person that on Subject to the terms and conditions of this Section and applicable securities laws, if, following the date of an Issuance Notice is a Qualified Stockholder written notice of the Company’s intention to issue or sell New Securities (which notice may be provided by posting the requisite information on a Secure Site hereof and notifying (or causing notification to be delivered to) each of such Qualified Stockholders of such posting in writing) (the “Issuance Notice”)until June 1, describing the type and terms of the New Securities2012, the price at which such New Securities will be issued or sold and the general terms upon which the Company proposes to issue or sell (other than the New Securitiessale of securities (a “Shelf Registration”) effected by preparing and filing a registration statement on Form S-3 (the “Shelf Registration Statement”) in compliance with the U.S. Securities Act of 1933, including as amended, and the anticipated date declaration or ordering of the effectiveness of such issuance, sale registration statement by the U.S. Securities and Exchange Commission (the “Commission”)) any securities to a purchaser or distributionpurchasers that are not an Affiliate of the Company (the “Proposed Third Party Purchaser”), the general use Company shall, not less than fifteen (15) business days prior to the consummation of proceeds thereofsuch issuance or sale of securities of the Company, offer such securities to Citadel by sending written notice (an “Issuance Notice”) to Citadel, which shall state (a) the identity of the Proposed Third Party Purchaser, (b) a description of both the business purpose securities to be issued or sold, including detailed terms of such securities, (c) the amount of the offering of such New Securities and securities proposed to be issued to the dilutive effects, if any, of such offering, and the record date for determining Qualified Stockholders and the pro rata share of each of them which, if not specified in the Issuance Notice, shall be the date of the Issuance Notice Proposed Third Party Purchaser (the “Preemptive Offer Record DateOffered New Securities”). Each Qualified Stockholder shall have ten ; (10d) Business Days from the date proposed purchase price for the Issuance Notice is sent to deliver notice Offered Securities (the “Response NoticeIssuance Price”); and (e) the terms and conditions of its intention to purchase all or any portion of its pro rata share of such proposed sale. The Issuance Notice shall also certify that the Company has received a firm offer from the Proposed Third Party Purchaser and in good faith believes a binding agreement for the Offered New Securities, based Securities is obtainable on the ratio of the shares of Company Common Stock held by such Qualified Stockholder on the Preemptive Offer Record Date to the number of shares of Company Common Stock held by all the Qualified Stockholders on the Preemptive Offer Record Date, and stating therein the quantity of New Securities it intends to purchase (each Qualified Stockholder who delivers a Response Notice hereunder is a “Purchaser” for purposes of this Section 4.4); provided that if the Company determines that a ten (10)-Business Day period is not practical, the Company shall specify a shorter period (which shall be as long a period as is reasonably practical but in no event less than three (3) Business Days) terms set forth in the Issuance Notice. Such Response The Issuance Notice shall constitute also include a copy of any written proposal, term sheet or letter of intent or other agreement or understanding relating to the irrevocable agreement of such Purchaser to purchase the quantity of Offered New Securities indicated in and proof satisfactory to the Response Notice at Company that the price and upon the terms stated in Offered New Securities will not violate any applicable securities laws. Upon delivery of the Issuance Notice; provided, however, that if the Company is proposing to issue, sell or distribute securities for consideration other than all cash, such offer shall be irrevocable unless and subject to the limitations on until the rights set forth in this Section 4.4, the Company of first refusal provided for herein shall accept from such Purchaser either non-cash consideration that is reasonably comparable to the non-cash consideration proposed by the Company have been waived or the cash value of such non-cash consideration, in each case as determined in good faith by the Board. Any purchase of New Securities by a Purchaser pursuant to this Section 4.4 shall be consummated on or prior to the later of (x) the date on which all other Offered Securities described in the applicable Issuance Notice are issued, sold or distributed and (y) the second (2nd) Business Day following delivery of the Response Notice by such Purchaserhave expired.

Issuance Notice. The Company shall give each Person that on the date of an Issuance Notice is a Qualified Stockholder written notice of the Company’s intention to issue or sell New Securities (which notice may be provided by posting the requisite information on a Secure Site and notifying (or causing notification to be delivered to) each of such Qualified Stockholders of such posting in writing) (the “Issuance Notice”), describing the type and terms of the New Securities, the price at which such New Securities will be issued or sold and the general terms upon which the Company proposes to issue or sell the New Securities, including the anticipated date of such issuance, sale or distribution, the general use of proceeds thereof, a description of both the business purpose of the offering of such New Securities and the dilutive effects, if any, of such offering, and the record date for determining Qualified Stockholders and the pro rata share of each of them which, if not specified in the Issuance Notice, shall be the date of the Issuance Notice (the “Preemptive Offer Record Date”). Each Qualified Stockholder shall have ten (10) Business Days from the date the Issuance Notice is sent to deliver notice (the “Response Notice”) of its intention to purchase all or any portion of its pro rata share of the New Securities, based on the ratio of the shares of Company Common Stock held by such Qualified Stockholder on the Preemptive Offer Record Date to the number of shares of Company Common Stock held by all of the Qualified Stockholders holders of Company Common Stock on the Preemptive Offer Record Date, and stating therein the quantity of New Securities it intends to purchase (each Qualified Stockholder who delivers a Response Notice hereunder is a “Purchaser” for purposes of this Section 4.44.1); provided that if the Company determines that a ten (10)-Business Day period is not practical, the Company shall specify a shorter period (which shall be as long a period as is reasonably practical but in no event less than three (3) Business Days) in the Issuance Notice. Such Response Notice shall constitute the irrevocable agreement of such Purchaser to purchase the quantity of New Securities indicated in the Response Notice at the price and upon the terms stated in the Issuance Notice; provided, however, that if the Company is proposing to issue, sell or distribute securities for consideration other than all cash, and subject to the limitations on the rights set forth in this Section 4.44.1, the Company shall accept from such Purchaser either non-cash consideration that is reasonably comparable to the non-cash consideration proposed by the Company or the cash value of such non-cash consideration, in each case as determined in good faith by the Board. Any purchase of New Securities by a Purchaser pursuant to this Section 4.4 4.1 shall be consummated on or prior to the later of (x) the date on which all other Offered Securities described in the applicable Issuance Notice are issued, sold or distributed and (y) the second (2nd) Business Day following delivery of the Response Notice by such Purchaser.

Issuance Notice. The Company shall give each Person that on the date of an Issuance Notice is a Qualified Stockholder Shareholder written notice of the Company’s intention to issue or sell New Securities (which notice may be provided by posting the requisite information on a Secure Site and notifying (or causing notification to be delivered to) each of such Qualified Stockholders Shareholders of such posting in writing) (the “Issuance Notice”), describing the type and terms of the New Securities, the price at which such New Securities will be issued or sold and the general terms upon which the Company proposes to issue or sell the New Securities, including the anticipated date of such issuance, sale or distribution, the general use of proceeds thereof, a description of both the business purpose of the offering of such New Securities and the dilutive effects, if any, of such offering, and the record date for determining Qualified Stockholders Shareholders and the pro rata share of each of them which, if not specified in the Issuance Notice, shall be the date of the Issuance Notice (the “Preemptive Offer Record Date”). Each Qualified Stockholder Shareholder shall have ten (10) Business Days from the date the Issuance Notice is sent to deliver notice (the “Response Notice”) of its intention to purchase all or any portion of its pro rata share of the New Securities, based on the ratio of the shares of Company Common Stock held by such Qualified Stockholder Shareholder on the Preemptive Offer Record Date to the number of shares of Company Common Stock held by all the Qualified Stockholders Shareholders on the Preemptive Offer Record Date, and stating therein the quantity of New Securities it intends to purchase (each Qualified Stockholder Shareholder who delivers a Response Notice hereunder is a “Purchaser” for purposes of this Section 4.44.3); provided that if the Company determines that a ten (10)-Business Day period is not practical, the Company shall specify a shorter period (which shall be as long a period as is reasonably practical but in no event less than three (3) Business Days) in the Issuance Notice. Such Response Notice shall constitute the irrevocable agreement of such Purchaser to purchase the quantity of New Securities indicated in the Response Notice at the price and upon the terms stated in the Issuance Notice; provided, however, that if the Company is proposing to issue, sell or distribute securities for consideration other than all cash, and subject to the limitations on the rights set forth in this Section 4.44.3, the Company shall accept from such Purchaser either non-cash consideration that is reasonably comparable to the non-cash consideration proposed by the Company or the cash value of such non-cash consideration, in each case as determined in good faith by the Board. Any purchase of New Securities by a Purchaser pursuant to this Section 4.4 4.3 shall be consummated on or prior to the later of (x) the date on which all other Offered Securities described in the applicable Issuance Notice are issued, sold or distributed and (y) the second (2nd) Business Day following delivery of the Response Notice by such Purchaser.

Issuance Notice. The Company shall give each Person that on As long as Citadel holds the Minimum Holdings, subject to the terms and conditions of this Section and applicable securities laws, if, following the date of an Issuance Notice is a Qualified Stockholder written notice of the Company’s intention to issue or sell New Securities (which notice may be provided by posting the requisite information on a Secure Site hereof and notifying (or causing notification to be delivered to) each of such Qualified Stockholders of such posting in writing) (the “Issuance Notice”)until December 31, describing the type and terms of the New Securities2010, the price at which such New Securities will be issued or sold and the general terms upon which the Company proposes to issue or sell the New Securities, including the anticipated date of such issuance, sale any securities to a purchaser or distribution, the general use of proceeds thereof, a description of both the business purpose purchasers that are not an Affiliate of the offering of such New Securities and the dilutive effects, if any, of such offering, and the record date for determining Qualified Stockholders and the pro rata share of each of them which, if not specified in the Issuance Notice, shall be the date of the Issuance Notice Company (the “Preemptive Offer Record DateProposed Third Party Purchaser”). Each Qualified Stockholder shall have ten (10) Business Days from the date the Issuance Notice is sent to deliver notice (the “Response Notice”) of its intention to purchase all or any portion of its pro rata share of the New Securities, based on the ratio of the shares of Company Common Stock held by such Qualified Stockholder on the Preemptive Offer Record Date to the number of shares of Company Common Stock held by all the Qualified Stockholders on the Preemptive Offer Record Date, and stating therein the quantity of New Securities it intends to purchase (each Qualified Stockholder who delivers a Response Notice hereunder is a “Purchaser” for purposes of this Section 4.4); provided that if the Company determines that a ten (10)-Business Day period is not practical, the Company shall specify a shorter period shall, (which shall be as long a period as is reasonably practical but in no event i) not less than three (3) Business Daysbusiness days prior to the consummation of such issuance or sale in the case of a proposed public offering of Equity Securities of the Company, and (ii) not less than fifteen (15) business days prior to the consummation of such issuance or sale in the case of all other issuances and sales of securities of the Company, offer such securities to Citadel by sending written notice (an “Issuance Notice”) to Citadel, which shall state (a) the identity of the Proposed Third Party Purchaser, (b) a description of the securities to be issued or sold, including detailed terms of such securities, (c) the amount of the securities proposed to be issued to the Proposed Third Party Purchaser (the “Offered New Securities”); (d) the proposed purchase price for the Offered Securities (the “Issuance Price”); and (e) the terms and conditions of such proposed sale. The Issuance Notice shall also certify that the Company has received a firm offer from the Proposed Third Party Purchaser and in good faith believes a binding agreement for the Offered New Securities is obtainable on the terms set forth in the Issuance Notice. Such Response The Issuance Notice shall constitute also include a copy of any written proposal, term sheet or letter of intent or other agreement or understanding relating to the irrevocable agreement of such Purchaser to purchase the quantity of Offered New Securities indicated in and proof satisfactory to the Response Notice at Company that the price and upon the terms stated in Offered New Securities will not violate any applicable securities laws. Upon delivery of the Issuance Notice; provided, however, that if the Company is proposing to issue, sell or distribute securities for consideration other than all cash, such offer shall be irrevocable unless and subject to the limitations on until the rights set forth in this Section 4.4, the Company of first refusal provided for herein shall accept from such Purchaser either non-cash consideration that is reasonably comparable to the non-cash consideration proposed by the Company have been waived or the cash value of such non-cash consideration, in each case as determined in good faith by the Board. Any purchase of New Securities by a Purchaser pursuant to this Section 4.4 shall be consummated on or prior to the later of (x) the date on which all other Offered Securities described in the applicable Issuance Notice are issued, sold or distributed and (y) the second (2nd) Business Day following delivery of the Response Notice by such Purchaserhave expired.

Issuance Notice. The At least 30 Business Days prior to any issuance by the Company of any New Securities to any Person, the Company shall give each Person that on the date of an Issuance Notice is a Qualified Stockholder written notice of the Company’s intention to issue or sell New Securities (which notice may be provided by posting the requisite information on a Secure Site and notifying (or causing notification to be delivered to) each of such Qualified Stockholders of such posting in writing) (the “Issuance Notice”)) to each Material Holder specifying in reasonable detail the total amount of New Securities to be issued, describing the type purchase price thereof, the other material terms and terms conditions of the issuance and such Material Holder’s pro rata portion of the New Securities. In order to exercise such Material Holder’s purchase rights hereunder, the price at which such New Securities will be issued or sold and the general terms upon which the Company proposes to issue or sell the New Securitieseach Material Holder must, including the anticipated date of such issuance, sale or distribution, the general use of proceeds thereof, a description of both the business purpose of the offering of such New Securities and the dilutive effects, if any, of such offering, and the record date for determining Qualified Stockholders and the pro rata share of each of them which, if not specified in the Issuance Notice, shall be the date of within 20 Business Days after the Issuance Notice (has been given, give written notice to the “Preemptive Offer Record Date”). Each Qualified Stockholder shall have ten (10) Business Days from the date the Issuance Notice is sent to deliver notice (the “Response Notice”) of its intention Company describing such holder’s election to purchase all or any portion of its the amount of New Securities available for purchase by such Material Holder as calculated in accordance with Section 6(a). If all of the New Securities offered to the Material Holders are not fully subscribed for by each Material Holder, the remaining New Securities shall be reoffered by the Company to the Material Holders purchasing their full portion upon the terms set forth in this Section 6(b) (including, for the avoidance of doubt, each Material Holder to which the original issuance or sale of New Securities gives rise to the right under this Section 6) one additional time and each participating Material Holder shall be permitted to commit to acquiring all of the New Securities being reoffered pursuant to this Section 6(b) (and any over commitment shall be cut back pro rata share on the basis of each such participating Material Holder’s relative pro rata portion of the New Securities, based on the ratio of the shares of Company Common Stock held by as calculated in accordance with Section 6(a)), except that such Qualified Stockholder on the Preemptive Offer Record Date to the number of shares of Company Common Stock held by all the Qualified Stockholders on the Preemptive Offer Record Date, and stating therein the quantity of New Securities it intends to Material Holders must exercise their purchase (each Qualified Stockholder who delivers a Response Notice hereunder is a “Purchaser” for purposes of this Section 4.4); provided that if the Company determines that a ten (10)-Business Day period is not practical, the Company shall specify a shorter period (which shall be as long a period as is reasonably practical but in no event less than three (3) rights within five Business Days) in the Issuance Notice. Such Response Notice shall constitute the irrevocable agreement Days after notice of such Purchaser to purchase the quantity of New Securities indicated in the Response Notice at the price and upon the terms stated in the Issuance Notice; provided, however, that if the Company is proposing to issue, sell or distribute securities for consideration other than all cash, and subject to the limitations on the rights set forth in this Section 4.4, the Company shall accept from such Purchaser either non-cash consideration that is reasonably comparable to the non-cash consideration proposed reoffer has been given by the Company or the cash value of to such non-cash consideration, in each case as determined in good faith by the Board. Any purchase of New Securities by a Purchaser pursuant to this Section 4.4 shall be consummated on or prior to the later of (x) the date on which all other Offered Securities described in the applicable Issuance Notice are issued, sold or distributed and (y) the second (2nd) Business Day following delivery of the Response Notice by such PurchaserMaterial Holder.

Issuance Notice. The Company shall give each Person that on As long as Citadel is the Beneficial Owner of the Minimum Holdings, subject to the terms and conditions of this Section and applicable securities laws, if, following the date of an Issuance Notice is a Qualified Stockholder written notice of the Company’s intention to issue or sell New Securities (which notice may be provided by posting the requisite information on a Secure Site hereof and notifying (or causing notification to be delivered to) each of such Qualified Stockholders of such posting in writing) (the “Issuance Notice”)until December 31, describing the type and terms of the New Securities2010, the price at which such New Securities will be issued or sold and the general terms upon which the Company proposes to issue or sell the New Securities, including the anticipated date of such issuance, sale any securities to a purchaser or distribution, the general use of proceeds thereof, a description of both the business purpose purchasers that are not an Affiliate of the offering of such New Securities and the dilutive effects, if any, of such offering, and the record date for determining Qualified Stockholders and the pro rata share of each of them which, if not specified in the Issuance Notice, shall be the date of the Issuance Notice Company (the “Preemptive Offer Record DateProposed Third Party Purchaser”). Each Qualified Stockholder shall have ten (10) Business Days from the date the Issuance Notice is sent to deliver notice (the “Response Notice”) of its intention to purchase all or any portion of its pro rata share of the New Securities, based on the ratio of the shares of Company Common Stock held by such Qualified Stockholder on the Preemptive Offer Record Date to the number of shares of Company Common Stock held by all the Qualified Stockholders on the Preemptive Offer Record Date, and stating therein the quantity of New Securities it intends to purchase (each Qualified Stockholder who delivers a Response Notice hereunder is a “Purchaser” for purposes of this Section 4.4); provided that if the Company determines that a ten (10)-Business Day period is not practical, the Company shall specify a shorter period shall, (which shall be as long a period as is reasonably practical but in no event i) not less than three (3) Business Daysbusiness days prior to the consummation of such issuance or sale in the case of a proposed public offering of Equity Securities of the Company, and (ii) not less than fifteen (15) business days prior to the consummation of such issuance or sale in the case of all other issuances and sales of securities of the Company, offer such securities to Citadel by sending written notice (an “Issuance Notice”) to Citadel, which shall state (a) the identity of the Proposed Third Party Purchaser, (b) a description of the securities to be issued or sold, including detailed terms of such securities, (c) the amount of the securities proposed to be issued to the Proposed Third Party Purchaser (the “Offered New Securities”); (d) the proposed purchase price for the Offered Securities (the “Issuance Price”); and (e) the terms and conditions of such proposed sale. The Issuance Notice shall also certify that the Company has received a firm offer from the Proposed Third Party Purchaser and in good faith believes a binding agreement for the Offered New Securities is obtainable on the terms set forth in the Issuance Notice. Such Response The Issuance Notice shall constitute also include a copy of any written proposal, term sheet or letter of intent or other agreement or understanding relating to the irrevocable agreement of such Purchaser to purchase the quantity of Offered New Securities indicated in and proof satisfactory to the Response Notice at Company that the price and upon the terms stated in Offered New Securities will not violate any applicable securities laws. Upon delivery of the Issuance Notice; provided, however, that if the Company is proposing to issue, sell or distribute securities for consideration other than all cash, such offer shall be irrevocable unless and subject to the limitations on until the rights set forth in this Section 4.4, the Company of first refusal provided for herein shall accept from such Purchaser either non-cash consideration that is reasonably comparable to the non-cash consideration proposed by the Company have been waived or the cash value of such non-cash consideration, in each case as determined in good faith by the Board. Any purchase of New Securities by a Purchaser pursuant to this Section 4.4 shall be consummated on or prior to the later of (x) the date on which all other Offered Securities described in the applicable Issuance Notice are issued, sold or distributed and (y) the second (2nd) Business Day following delivery of the Response Notice by such Purchaserhave expired.

Issuance Notice. The Company shall give each Person that on Subject to the terms and conditions of this Section and applicable securities laws, if, following the date of an Issuance Notice is a Qualified Stockholder written notice of the Company’s intention to issue or sell New Securities (which notice may be provided by posting the requisite information on a Secure Site hereof and notifying (or causing notification to be delivered to) each of such Qualified Stockholders of such posting in writing) (the “Issuance Notice”)until December 31, describing the type and terms of the New Securities2010, the price at which such New Securities will be issued or sold and the general terms upon which the Company proposes to issue or sell any securities to a purchaser that is not an Affiliate of the New SecuritiesCompany (the “Proposed Third Party Purchaser”), the Company shall, not less than fifteen (15) business days prior to the consummation of such issuance or sale, offer such securities to Citadel as long as Citadel holds at least 10% of the outstanding HY Notes, 20% of the outstanding Convertible Notes (including the anticipated date principal amount of the Convertible Notes that have been converted into Conversion Shares as if such issuanceconversion had not taken place and to the extent that such Conversion Shares are held by Citadel at the time of calculating such percentage) or 3% of the total outstanding equity interest in the Company on a fully-diluted basis (including, sale or distributionfor the avoidance of doubt, any Conversion Shares) (the general use “Alternative Minimum Holding”) by sending written notice (an “Issuance Notice”) to Citadel, which shall state (a) the identity of proceeds thereofthe Proposed Third Party Purchaser, (b) a description of both the business purpose securities to be issued or sold, including detailed terms of such securities, (c) the amount of the offering of such New Securities and securities proposed to be issued to the dilutive effects, if any, of such offering, and the record date for determining Qualified Stockholders and the pro rata share of each of them which, if not specified in the Issuance Notice, shall be the date of the Issuance Notice Proposed Third Party Purchaser (the “Preemptive Offer Record DateOffered New Securities”). Each Qualified Stockholder shall have ten ; (10d) Business Days from the date proposed purchase price for the Issuance Notice is sent to deliver notice Offered Securities (the “Response NoticeIssuance Price”); and (e) the terms and conditions of its intention to purchase all or any portion of its pro rata share of such proposed sale. The Issuance Notice shall also certify that the Company has received a firm offer from the Proposed Third Party Purchaser and in good faith believes a binding agreement for the Offered New Securities, based Securities is obtainable on the ratio of the shares of Company Common Stock held by such Qualified Stockholder on the Preemptive Offer Record Date to the number of shares of Company Common Stock held by all the Qualified Stockholders on the Preemptive Offer Record Date, and stating therein the quantity of New Securities it intends to purchase (each Qualified Stockholder who delivers a Response Notice hereunder is a “Purchaser” for purposes of this Section 4.4); provided that if the Company determines that a ten (10)-Business Day period is not practical, the Company shall specify a shorter period (which shall be as long a period as is reasonably practical but in no event less than three (3) Business Days) terms set forth in the Issuance Notice. Such Response The Issuance Notice shall constitute also include a copy of any written proposal, term sheet or letter of intent or other agreement or understanding relating to the irrevocable agreement of such Purchaser to purchase the quantity of Offered New Securities indicated in and proof satisfactory to the Response Notice at Company that the price and upon the terms stated in Offered New Securities will not violate any applicable securities laws. Upon delivery of the Issuance Notice; provided, however, that if the Company is proposing to issue, sell or distribute securities for consideration other than all cash, such offer shall be irrevocable unless and subject to the limitations on until the rights set forth in this Section 4.4, the Company of first refusal provided for herein shall accept from such Purchaser either non-cash consideration that is reasonably comparable to the non-cash consideration proposed by the Company have been waived or the cash value of such non-cash consideration, in each case as determined in good faith by the Board. Any purchase of New Securities by a Purchaser pursuant to this Section 4.4 shall be consummated on or prior to the later of (x) the date on which all other Offered Securities described in the applicable Issuance Notice are issued, sold or distributed and (y) the second (2nd) Business Day following delivery of the Response Notice by such Purchaserhave expired.

Issuance Notice. The Company shall give each Person that on the date of an Issuance Notice is a Qualified Stockholder written notice shall disclose in reasonable detail the number of the Company’s intention shares of stock proposed to issue or sell New Securities (which notice may be provided by posting the requisite information on a Secure Site and notifying (or causing notification to be delivered to) each of such Qualified Stockholders of such posting in writing) (the “Issuance Notice”), describing the type and terms of the New Securities, the price at which such New Securities will be issued or sold the amount of debt to be incurred (collectively, the "Securities") and the general terms and conditions upon which the Company proposes to issue or effect the issuance of the Securities and shall confirm that the offer by the Company to sell the New Securities, including the anticipated date of such issuance, sale or distribution, the general use of proceeds thereof, a description of both the business purpose portion of the offering Securities specified below, constituted by the service of such New Securities and the dilutive effects, if any, of such offering, and the record date for determining Qualified Stockholders and the pro rata share of each of them which, if not specified in the Issuance Notice, is irrevocable until all the Stockholders have either accepted or rejected (or been deemed to have rejected) the offer as provided below. The Stockholders shall, collectively, have the right to purchase, in whole or in part, a portion of such Securities proportionate to the percentage of the fully diluted equity of the Company represented by the shares of Common Stock issuable and issued upon conversion of the Preferred Stock then owned by the Stockholders. The Stockholders may elect to purchase such portion of the Securities, in whole or in part, upon the same terms and conditions as those set forth in the Issuance Notice by delivering a written notice of such election to the Company within 15 days after the Service Date based on their respective pro rata ownership of the shares of Common Stock issuable and issued upon conversion of the Preferred Stock in proportion to the fully diluted equity of the Company. The failure by the Stockholders to serve notice in accordance with the foregoing provisions shall be deemed a rejection of the date offer constituted by the service of the Issuance Notice (the “Preemptive Offer Record Date”)Notice. Each Qualified In addition, each Stockholder shall have ten (10) Business Days from the date the Issuance Notice is sent a right of over-allotment such that if any Stockholder fails to deliver notice (the “Response Notice”) of exercise its intention rights hereunder to purchase all or any portion of its pro rata share of the New Securities, based the other Stockholders may purchase the non-purchasing Stockholder's portion on a pro rata basis within 10 days from the ratio date the Company provides written notice to such other Stockholders that such non-purchasing Stockholder failed to exercise its right hereunder to purchase its pro rata share of Securities. The Company shall promptly give written notice to all the other Stockholders of any Stockholder's failure to exercise its right hereunder to purchase Securities. The failure by any Stockholder to deliver written notice to the Company of such Stockholder's election to purchase additional Securities within the above-mentioned 10-day time period shall be deemed a rejection of the shares of Company Common Stock held by such Qualified Stockholder on the Preemptive Offer Record Date offer to purchase additional Securities pursuant to the number of shares of Company Common Stock held by all over-allotment right. If the Qualified Stockholders on the Preemptive Offer Record Date, and stating therein the quantity of New Securities it intends elect to purchase any or all of the Securities, the closing of such purchase shall occur upon the later to occur of (each Qualified Stockholder who delivers a Response Notice hereunder is a “Purchaser” for purposes x) the expiration of this Section 4.4); provided that if 120 days from the Service Date and (y) 5 days following the satisfaction of any anti-trust governmental authority consents, or other applicable governmental authority conditions, to the consummation of the issuance. If the Stockholders elect not to purchase all of the Securities, then the Company determines that may issue any such Securities not purchased by the Stockholders at a ten (10)-Business Day period is not practical, price and on terms no more favourable to the Company shall specify a shorter period (which shall be as long a period as is reasonably practical but in no event less transferee(s) thereof than three (3) Business Days) specified in the Issuance NoticeNotice during the 120-day period immediately following the Service Date. Such Response Notice Any Securities not issued within such 120-day period shall constitute thereupon , if still proposed to be issued by the irrevocable agreement of such Purchaser to purchase the quantity of New Securities indicated in the Response Notice at the price and upon the terms stated in the Issuance Notice; providedCompany, however, that if the Company is proposing to issue, sell or distribute securities for consideration other than all cash, and be subject to the limitations on provisions of the preemptive rights set forth in this Section 4.4, the Company shall accept from such Purchaser either non-cash consideration that is reasonably comparable to the non-cash consideration proposed by the Company or the cash value of such non-cash consideration, in each case as determined in good faith by the Board. Any purchase of New Securities by a Purchaser pursuant to this Section 4.4 shall be consummated on or prior to the later of (x) the date on which all other Offered Securities described in the applicable Issuance Notice are issued, sold or distributed and (y) the second (2nd) Business Day following delivery of the Response Notice by such Purchaser3.