Common use of Subsequent Transaction Clause in Contracts

Subsequent Transaction. The Company will not enter, prior to December 31, 2012, into any agreement for the merger, business combination or sale of all or substantially all of the Company’s assets to Red Mountain or to any of its Affiliates unless (a) such transaction is approved by a majority of the “independent directors” of the Company or two thirds (2/3) of the Company’s shareholders and (b) the Company obtains an opinion from an independent investment banking firm that the transaction is fair to the unaffiliated stockholders of the Company. For purposes of this section, the term independent directors refers to P▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, R▇▇▇▇▇▇ ▇. ▇▇▇▇, R▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. and J▇▇▇ ▇. ▇▇▇▇▇▇▇ (or their respective successors). For the avoidance of doubt, this provision will not apply to Red Mountain entering into private or public market purchases of the Company’s securities (whether directly with the Company or with third parties) or from acquiring additional shares of the Company’s Common Stock through the exercise of any warrants of the Company held by Red Mountain.