Common use of Preemptive Right Clause in Contracts

Preemptive Right. The Company shall not issue, sell or exchange, agree or obligate itself to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, any (i) shares of Common Stock, (ii) any other equity security of the Company, including without limitation, Preferred Stock, (iii) any debt security of the Company (other than debt with no equity feature) including without limitation, any debt security which by its terms is convertible into or exchangeable for any equity security of the Company, (iv) any security of the Company that is a combination of debt and equity, or (v) any option, warrant or other right to subscribe for, purchase or otherwise acquire any such equity security or any debt security of the Company specified in (i)-(iv) above, unless in each case the Company shall have first offered to sell a portion of such securities (the “Offered Securities”) to each Investor who holds at least 5% of the then outstanding shares of Preferred Stock (each an “Offeree” and collectively, the “Offerees”) as follows: each Offeree shall have the right (but not an obligation) to purchase (x) up to that portion of the Offered Securities as the number of shares of capital stock then held by such Offeree (assuming for such purposes exercise, conversion and exchange of all outstanding options, warrants or convertible securities of the Company exercisable, convertible and/or exchangeable into shares of Common Stock) bears to the total number of the outstanding shares of capital stock of the Company (assuming for such purposes exercise, conversion and exchange of all outstanding options, warrants or convertible securities of the Company exercisable, convertible and/or exchangeable into shares of Common Stock) (the “Basic Amount”), and (y) such additional portion of the Offered Securities as such Offeree shall indicate it will purchase should the other Offerees subscribe for less than their respective Basic Amounts (the “Undersubscription Amount”), at a price and on such other terms as shall have been specified by the Company in writing delivered to such Offeree (the “Offer”), which Offer by its terms shall remain open and irrevocable for a period of thirty (30) days from receipt thereof. The Offer shall disclose the identity of the proposed transferee, the Offered Securities proposed to be sold, and the terms and conditions (including price) of the proposed sale.

Preemptive Right. The Company shall not issuegive each Shareholder thirty (30) days’ prior written notice of the proposed issuance or sale by the Company of any Common Stock, sell or exchange, agree or obligate itself to issue, sell or exchangePreferred Stock, or reserve any Stock Equivalent (each, a “New Issuance”) other than Common Stock, Preferred Stock or set aside for issuance, sale Stock Equivalents issued or exchange, any sold by the Company (i) shares to the Company’s employees, consultants or directors pursuant to arrangements approved by the Board of Common StockDirectors, (ii) any in connection with acquisitions of other equity security of the Company, including without limitation, Preferred Stockcompanies or businesses, (iii) any debt security of the Company (other than debt with no equity feature) including without limitation, any debt security which by its terms is convertible into as a stock split or exchangeable for any equity security of the Companystock dividend, (iv) pursuant to the exercise, conversion or exchange of any security of then outstanding Stock Equivalent, (v) pursuant to a public offering registered under the Company that is a combination of debt and equitySecurities Act, or (vvi) any optionin connection with a Change of Control Transaction. Such notice shall specify the number and class of securities to be issued, warrant or other right to subscribe forthe rights, purchase or otherwise acquire any such equity security or any debt security of terms and privileges thereof, the Company specified in (i)-(iv) above, unless in each case the Company shall have first offered to sell a portion of price at which such securities (shall be issued and the “Offered Securities”) to each Investor who holds at least 5% of the then outstanding shares of Preferred Stock (each an “Offeree” and collectively, the “Offerees”) as follows: each Offeree portion such Shareholder shall have the right (but not an obligation) be entitled to purchase (x) up pursuant to this Section. Each Shareholder shall be entitled to purchase that portion of a New Issuance equal to a fraction, the Offered Securities as the number numerator of shares of capital stock then held by such Offeree (assuming for such purposes exercise, conversion and exchange of all outstanding options, warrants or convertible securities of the Company exercisable, convertible and/or exchangeable into shares of Common Stock) bears to which shall be the total number of Shares owned by such Shareholder, giving effect, without duplication, to all Stock Equivalents owned by such Shareholder, whether or not then convertible, exercisable or exchangeable, but only to the outstanding shares of capital stock of the Company (assuming for such purposes exercise, conversion and exchange of all outstanding options, warrants or convertible securities of the Company exercisable, convertible and/or exchangeable into shares of Common Stock) (the “Basic Amount”)extent then vested, and the denominator of which shall be the total number of Shares then outstanding, giving effect, without duplication, to all Stock Equivalents outstanding, whether or not then convertible, exercisable or exchangeable, but only to the extent then vested (y) including such additional portion of the Offered Securities as such Offeree shall indicate it will purchase should the other Offerees subscribe for less than their respective Basic Amounts (the “Undersubscription Amount”Shareholder’s Shares), at a the most favorable price and on such other the most favorable terms as are offered to any other Persons, by giving written notice of such election to the Company within fifteen (15) days after notice of such New Issuance has been given to such Shareholder; provided, however, that no Shareholder shall have been specified by the Company in writing delivered any right to purchase securities pursuant to this Section if, prior to a sale of securities to such Offeree (Shareholder pursuant to this Section, such securities would be required to be registered under the “Offer”), which Offer by its terms shall remain open and irrevocable for a period of thirty (30) days from receipt thereofSecurities Act. The Offer failure of a Shareholder to give any written notice specified in this Section within the time period specified herein shall disclose the identity of the proposed transferee, the Offered Securities proposed be deemed to be sold, and the terms and conditions (including price) a waiver of the proposed salesuch Shareholder’s rights under this Section.

Preemptive Right. The (a) If the Company shall not issue, sell or exchange, agree or obligate itself proposes to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, any issue (i) shares of Common Stock, (iia “Proposed Issuance”) any other equity security of the Company, including without limitation, Preferred Stock, (iii) any debt security capital stock of the Company (other than debt with no equity feature) including without limitationor any securities convertible into, any debt security which by its terms is convertible into or exercisable or exchangeable for any equity security of the Company, (iv) any security of the Company that is a combination of debt and equity, or (v) any option, warrant or other right to subscribe for, purchase or otherwise acquire any such equity security or any debt security of the Company specified in capital stock (i)-(iv) abovecollectively, unless in each case the Company shall have first offered to sell a portion of such securities (the “Offered Securities”) to each Investor who holds at least 5% any time when the holders of all the then outstanding shares of Preferred Class B Common Stock (each an “Offeree” and collectivelyassuming that all the outstanding shares of Class A Common Stock which are then exchangeable for Class B Common Stock have been so exchanged) are collectively entitled to cast a majority of the Total Voting Power, the Company shall give written notice of the Proposed Issuance to the holders of Class B Common Stock (the “OffereesOffer Notice”) as follows: each Offeree at least 30 days prior to such issuance. Such notice shall describe all the material terms and conditions of such Proposed Issuance. Each holder of Class B Common Stock shall have the right (but not to acquire at the same price and on the same terms and conditions, an obligation) to purchase (x) up to that portion additional amount of the Offered Securities so that the percentage of the outstanding Common Stock and Total Voting Power then owned by such holder shall not change as a result of such acquisition and Proposed Issuance; provided, however, that notwithstanding the foregoing (i) such holder may elect to acquire a lesser number of shares additional Offered Securities as it may determine in its sole discretion and (ii) if the Offered Securities are, or are convertible into or exercisable or exchangeable for, Class A Common Stock, then in lieu thereof such holder shall be entitled to purchase Class B Common Stock or Offered Securities convertible into or exercisable or exchangeable for Class B Common Stock, as applicable. If any holder of capital stock then held Class B Common Stock fails to accept such offer by written notice received by the Company within fifteen (15) days following the date on which such Offeree (assuming for such purposes exerciseholder received the Offer Notice, conversion the Proposed Issuance may be consummated free and exchange of all outstanding options, warrants or convertible securities clear of the Company exercisablepreemptive right granted to the holders of Class B Common Stock under this Section 4.5. Notwithstanding the foregoing, convertible and/or exchangeable into shares if the purchase price for any Proposed Issuance is to be paid in whole or in part other than in cash, then the holders of Class B Common Stock) bears Stock may pay the purchase price in cash in an amount per Offered Security equal to the fair market value of the aggregate non-cash consideration so payable, as reasonably determined in good faith by the Board, divided by the total number of the outstanding shares of capital stock of the Company (assuming for such purposes exercise, conversion and exchange of all outstanding options, warrants or convertible securities of the Company exercisable, convertible and/or exchangeable into shares of Common Stock) (the “Basic Amount”), and (y) such additional portion of the Offered Securities as such Offeree shall indicate it will purchase should the other Offerees subscribe for less than their respective Basic Amounts (the “Undersubscription Amount”), at a price and on such other terms as shall have been specified by the Company in writing delivered to such Offeree (the “Offer”), which Offer by its terms shall remain open and irrevocable for a period of thirty (30) days from receipt thereof. The Offer shall disclose the identity of the proposed transferee, the Offered Securities proposed to be sold, and issued without giving effect to the terms and conditions (including price) of the proposed salepreemptive right granted by this Section 4.5.

Preemptive Right. The (a) Prior to the Company or any of its Subsidiaries entering into discussions or negotiations with any third party regarding any potential issuance by the Company or any of its Subsidiaries of any debt security or any indebtedness described in clause (2) of this Section 2.7(a) (any such potential issuance, a “Potential Debt Issuance”), the Company shall inform ACOF for so long as it remains a Major Stockholder of its intention to enter into such negotiations, and ACOF shall then inform the Company if it does not issuedesire to have the provisions of this Section 2.7 apply with respect to such Potential Debt Issuance. Notwithstanding anything in this Agreement to the contrary, sell or exchange, agree or obligate itself to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, any (i) shares if ACOF informs the Company that it does not wish to have the provisions of Common Stockthis Section 2.7 apply to ACOF with respect to such Potential Debt Issuance, then this Section 2.7 shall not apply to ACOF with respect to such Potential Debt Issuance and (ii) if ACOF is silent or affirms its desire to have the provisions of this Section 2.7 apply with respect to such Potential Debt Issuance, it shall be under no obligation to purchase any other equity security of the CompanyPreemptive Securities unless and until it has exercised its preemptive rights pursuant to Section 2.7(b) below. Subject to the preceding two sentences, prior to any issuance by the Company or any of its Subsidiaries of (1) any securities (including any shares of Capital Stock or debt securities) or (2) any indebtedness in respect of borrowed money, including without limitationindebtedness evidenced by bonds, Preferred Stocknotes or similar instruments or by letters of credit or bankers acceptances (but, for the avoidance of doubt, not including trade payables) or any guarantees (iii) any debt security of the Company (in each case, other than debt with no equity feature) including without limitationExempt Issuances), any debt security which by its terms is convertible into or exchangeable for any equity security of the Company, (iv) any security of the Company that is a combination of debt and equity, or (v) any option, warrant or other right to subscribe for, purchase or otherwise acquire any such equity security or any debt security of the Company specified in (i)-(iv) above, unless in each case the Company shall have first offered to sell give written notice (a portion of such securities (the “Offered SecuritiesPreemptive Notice”) thereof to each Investor who holds at least 5% of the then outstanding shares of Preferred Stock (each an “Offeree” and collectively, the “Offerees”) ACOF for so long as follows: each Offeree shall have the right (but not an obligation) to purchase (x) up to that portion of the Offered Securities as the number of shares of capital stock then held by such Offeree (assuming for such purposes exercise, conversion and exchange of all outstanding options, warrants or convertible securities of the Company exercisable, convertible and/or exchangeable into shares of Common Stock) bears to the total number of the outstanding shares of capital stock of the Company (assuming for such purposes exercise, conversion and exchange of all outstanding options, warrants or convertible securities of the Company exercisable, convertible and/or exchangeable into shares of Common Stock) (the “Basic Amount”), and (y) such additional portion of the Offered Securities as such Offeree shall indicate it will purchase should the other Offerees subscribe for less than their respective Basic Amounts (the “Undersubscription Amount”), at is a price and on such other terms as shall have been specified by the Company in writing delivered to such Offeree (the “Offer”), which Offer by its terms shall remain open and irrevocable for a period of thirty (30) days from receipt thereofMajor Stockholder. The Offer shall disclose the identity of the proposed transferee, the Offered Securities proposed to be sold, and the terms and conditions (including price) of the proposed sale.Preemptive Notice shall:

Preemptive Right. The (a) If the Company shall not issue, sell or exchange, agree or obligate itself proposes to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, any issue (i) shares of Common Stock, (iia “Proposed Issuance”) any other equity security of the Company, including without limitation, Preferred Stock, (iii) any debt security capital stock of the Company (other than debt with no equity feature) including without limitationor any securities convertible into, any debt security which by its terms is convertible into or exercisable or exchangeable for any equity security of the Company, (iv) any security of the Company that is a combination of debt and equity, or (v) any option, warrant or other right to subscribe for, purchase or otherwise acquire any such equity security or any debt security of the Company specified in capital stock (i)-(iv) abovecollectively, unless in each case the Company shall have first offered to sell a portion of such securities (the “Offered Securities”) to each Investor who holds at least 5% any time when the holders of all the then outstanding shares of Preferred Class B Common Stock (each an “Offeree” and collectivelyassuming that all the outstanding shares of Class A Common Stock which are then exchangeable for Class B Common Stock have been so exchanged) are collectively entitled to cast a Table of Contents majority of the Total Voting Power, the Company shall give written notice of the Proposed Issuance to the holders of Class B Common Stock (the “OffereesOffer Notice”) as follows: each Offeree at least 30 days prior to such issuance. Such notice shall describe all the material terms and conditions of such Proposed Issuance. Each holder of Class B Common Stock shall have the right (but not to acquire at the same price and on the same terms and conditions, an obligation) to purchase (x) up to that portion additional amount of the Offered Securities so that the percentage of the outstanding Common Stock and Total Voting Power then owned by such holder shall not change as a result of such acquisition and Proposed Issuance; provided, however, that notwithstanding the foregoing (i) such holder may elect to acquire a lesser number of shares additional Offered Securities as it may determine in its sole discretion and (ii) if the Offered Securities are, or are convertible into or exercisable or exchangeable for, Class A Common Stock, then in lieu thereof such holder shall be entitled to purchase Class B Common Stock or Offered Securities convertible into or exercisable or exchangeable for Class B Common Stock, as applicable. If any holder of capital stock then held Class B Common Stock fails to accept such offer by written notice received by the Company within fifteen (15) days following the date on which such Offeree (assuming for such purposes exerciseholder received the Offer Notice, conversion the Proposed Issuance may be consummated free and exchange of all outstanding options, warrants or convertible securities clear of the Company exercisablepreemptive right granted to the holders of Class B Common Stock under this Section 4.5. Notwithstanding the foregoing, convertible and/or exchangeable into shares if the purchase price for any Proposed Issuance is to be paid in whole or in part other than in cash, then the holders of Class B Common Stock) bears Stock may pay the purchase price in cash in an amount per Offered Security equal to the fair market value of the aggregate non-cash consideration so payable, as reasonably determined in good faith by the Board, divided by the total number of the outstanding shares of capital stock of the Company (assuming for such purposes exercise, conversion and exchange of all outstanding options, warrants or convertible securities of the Company exercisable, convertible and/or exchangeable into shares of Common Stock) (the “Basic Amount”), and (y) such additional portion of the Offered Securities as such Offeree shall indicate it will purchase should the other Offerees subscribe for less than their respective Basic Amounts (the “Undersubscription Amount”), at a price and on such other terms as shall have been specified by the Company in writing delivered to such Offeree (the “Offer”), which Offer by its terms shall remain open and irrevocable for a period of thirty (30) days from receipt thereof. The Offer shall disclose the identity of the proposed transferee, the Offered Securities proposed to be sold, and issued without giving effect to the terms and conditions (including price) of the proposed salepreemptive right granted by this Section 4.5.

Preemptive Right. The Subject to applicable securities laws and except in connection with the issuance of any Excluded Shares, if the Company proposes to issue Shares, Convertible Securities or Share Purchase Rights (collectively, “New Equity Securities”), the holder of this Warrant and the holder of any Issued Warrant Shares shall have the right to purchase up to its Preemptive Pro Rata Share of all such New Equity Securities. For the purposes of this Section 5.3, each such holder’s “Preemptive Pro Rata Share” shall be the percentage that the number of Warrant Shares held by such holder represents of all Shares on a fully diluted basis immediately prior to the issuance of the New Equity Securities. If the Company proposes to issue any New Equity Securities, it shall give the holder of this Warrant and the holder of any Issued Warrant Shares not less than twenty (20) days’ prior written notice of its intention, describing the New Equity Securities and the price and other terms and conditions upon which the Company proposes to issue the same. Each such holder shall have fifteen (15) days following receipt of such notice to elect to purchase such holder’s Preemptive Pro Rata Share of the New Equity Securities by delivering a written notice of its election to the Company within the time period. Notwithstanding the foregoing, the Company shall not issue, be required to offer or sell or exchange, agree or obligate itself such New Equity Securities to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, any (i) shares of Common Stock, (ii) any other equity security of the Company, including without limitation, Preferred Stock, (iii) any debt security of holder who would cause the Company (other than debt with no equity feature) including without limitation, any debt security which by its terms is convertible into or exchangeable for any equity security to be in violation of applicable securities laws. To the Company, (iv) any security of the Company that is a combination of debt and equity, or (v) any option, warrant or other right to subscribe for, purchase or otherwise acquire extent any such equity security or any debt security holder does not elect to purchase its Preemptive Pro Rata Share of the Company specified in (i)-(iv) aboveall New Equity Securities, unless in each case the Company shall have first offered one hundred eighty (180) days following the expiration of the notice provided above to sell a portion of such securities (the “Offered Securities”) New Equity Securities first, to each Investor who holds at least 5% of the then outstanding shares of Preferred Stock (each an “Offeree” electing holders and collectivelythen, the “Offerees”) as follows: each Offeree shall have the right (but not an obligation) to purchase (x) up to that portion of the Offered Securities as the number of shares of capital stock then held by such Offeree (assuming for such purposes exercise, conversion and exchange of all outstanding options, warrants or convertible securities of the Company exercisable, convertible and/or exchangeable into shares of Common Stock) bears to the total number of the outstanding shares of capital stock of the Company (assuming for such purposes exercise, conversion and exchange of all outstanding options, warrants or convertible securities of the Company exercisable, convertible and/or exchangeable into shares of Common Stock) (the “Basic Amount”), and (y) such additional portion of the Offered Securities as such Offeree shall indicate it will purchase should the any other Offerees subscribe for less than their respective Basic Amounts (the “Undersubscription Amount”)third parties, at a price and on such other terms as shall have been specified by the Company in writing delivered to such Offeree (the “Offer”), which Offer by its terms shall remain open and irrevocable for a period of thirty (30) days from receipt thereof. The Offer shall disclose the identity of the proposed transferee, the Offered Securities proposed to be sold, and the upon general terms and conditions not materially more favorable to the purchasers thereof than specified in the Company’s notice to the holders (including priceprovided that the sale of all New Equity Securities to a holder or any third party shall be on the same terms and conditions as those specified in the notice). If the Company has not sold such New Equity Securities within such one hundred eighty (180) of day period, the proposed saleCompany shall not thereafter issue or sell any New Equity Securities, without first offering such securities to the holders in the manner provided above.

Preemptive Right. The Company shall not issue, sell or exchange, agree or obligate itself to issue, sell or exchange, or reserve or set aside Except for issuance, sale or exchange, any (i) shares the issuance of Common StockCompany Securities by the Company upon conversion or exercise of any Company Securities that have been issued in compliance with this Section 7.9 and the other provisions of this Agreement (including, without limitation, Section 4.8 hereof) and (ii) any other equity security the issuance of Units pursuant to Section 7.2(c), Section 7.11 or Section 7.12, if the Board (a) determines that additional capital is required by the Company to (A) facilitate the business needs of the Company, including without limitation, Preferred Stockto pay operating deficits or Cost Budget Overruns (but only if such capital has not been contributed by the Members (or any of them) pursuant to Section 7.2(c)), (iiiB) any debt security to fund the expansion of the Company Gaming Complexes (other than debt with no equity featureor either of them) including without limitation, any debt security which or (C) to pursue a New York Harness Racing/VLT Opportunity that has been approved by its terms is convertible into or exchangeable for any equity security unanimous vote of the CompanyBoard in accordance with the terms of Section 4.4(d) and consented to by Oneida pursuant to Section 4.8, and (ivb) authorizes the issuance and sale of any security of the Company that is a combination of debt and equitySecurities to raise such additional capital, or (v) any option, warrant or other right to subscribe for, purchase or otherwise acquire any such equity security or any debt security of the Company specified in (i)-(iv) above, unless in each case the Company shall have first offered offer to sell to each Member a pro rata portion of such securities Company Securities (based on the respective Percentages of each Member). Any such offer shall be provided by the Company to the Members in a Notice (the “Equity Financing Offer Notice”) which shall state the Company Securities to be offered (the “Offered Company Securities”), each Member’s pro rata share thereof and the price per Offered Company Security. Each Member shall have thirty (30) days after its receipt of the Equity Financing Offer Notice (such period being the “Equity Financing Election Period”) to each Investor who holds at least 5% elect to purchase such Member’s pro rata share of the then outstanding shares of Preferred Stock Offered Company Securities by delivering a Notice to the Company (each an “Offeree” Equity Financing Election Notice”). In the event that any Member does not elect to purchase its full allocable share of any Offered Company Securities (such Offered Company Securities not so elected to be purchased being “Available Securities”), then such Available Securities may be purchased by those Members (the “Fully Subscribed Members”) that have elected to purchase their full allocable share, with any such purchase to be made by such Fully Subscribed Members pro rata (based on such Fully Subscribed Member’s Percentage to the aggregate Percentage of all Fully Subscribed Members electing to purchase Available Securities). A Fully Subscribed Member may elect to purchase all or any portion of its pro rata share of Available Securities by delivering a Notice to the Company within ten (10) days (the “Initial Equity Financing Extension Period”) after the expiration of the Equity Financing Election Period. If any portion of the Available Securities remains unallocated after the expiration of the Initial Equity Financing Extension Period, such remaining portion shall be allocated among the Fully Subscribed Members that elect to purchase such remaining portion based on the proportionate Percentages of such Fully Subscribed Members until either such remaining portion is fully subscribed for or none of the Fully Subscribed Members elect to purchase Available Securities (which allocation described in this sentence shall in any event be concluded within five (5) days (the “Additional Equity Financing Extension Period”) following the expiration of the Initial Equity Financing Extension Period). The closing of any purchase by an Electing Member or Electing Members of Offered Company Securities pursuant to this Section 7.9 shall be held at the principal office of the Company or at such other location as the Electing Member(s) and collectivelythe Company shall agree, within twenty (20) days following the later of the expiration of the Equity Financing Election Period, the “Offerees”) as follows: each Offeree shall have Initial Equity Financing Extension Period and the right (but not an obligation) to purchase Additional Equity Financing Extension Period. At any such closing, (x) up the Company shall issue and sell to that portion of each Electing Member the Offered Company Securities as the number of shares of capital stock then held purchased by such Offeree (assuming for such purposes exercise, conversion Electing Member free and exchange clear of all outstanding options, warrants or convertible securities of the Company exercisable, convertible and/or exchangeable into shares of Common Stock) bears liens and encumbrances (other than liens and encumbrances created pursuant to the total number of the outstanding shares of capital stock of the Company (assuming for such purposes exercise, conversion and exchange of all outstanding options, warrants or convertible securities of the Company exercisable, convertible and/or exchangeable into shares of Common Stock) (the “Basic Amount”this Agreement), accompanied by all other documents necessary for the effective issuance thereof, as reasonably determined by such Electing Member and (y) each Electing Member shall pay the purchase price for the Offered Company Securities purchased by such additional portion Electing Member as determined in accordance with the Equity Financing Offer Notice. If at the expiration of the Offered Equity Financing Election Period there are Available Securities as such Offeree shall indicate it will and no Fully Subscribed Members or if at the expiration of the Initial Equity Financing Period or the Additional Equity Financing Period there are Available Securities and no Fully Subscribed Members that desire to purchase should the other Offerees subscribe for less than their respective Basic Amounts (the “Undersubscription Amount”)additional Available Securities, at a price and on such other terms as shall have been specified by then the Company in writing delivered to such Offeree (the “Offer”), which Offer by its terms shall remain open and irrevocable be permitted for a period of thirty (30) days from receipt thereof. The Offer shall disclose following the identity expiration of the proposed transfereeEquity Financing Election Period, the Offered Initial Equity Financing Extension Period or the Additional Equity Financing Extension Period to sell such Available Securities proposed to be sold, and a third party on terms no more favorable to the third party than those terms set forth in the Equity Financing Offer Notice. If the sale of the remaining Available Securities by the Company pursuant to the immediately preceding sentence is not consummated in such 30-day period or if the terms and conditions (including price) of the sale change so that the terms thereof are more favorable to the third party purchaser than those terms contained in the Equity Financing Offer Notice delivered to the Members, then in any such case such proposed salesale by the Company of Available Securities shall again be subject to the terms of this Section 7.9. Anything in this Section 7.9 to the contrary notwithstanding, the foregoing preemptive rights shall not be applicable to any Debt Financings, which Debt Financings shall be governed solely by the provisions set forth in Section 5.3 of this Agreement.

Preemptive Right. The Company shall not issueSubject to Section 6.3(c), sell or exchange, agree or obligate itself to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, any (i) shares of Common Stock, (ii) any other equity security of the Company, including without limitation, Preferred Stock, (iii) any debt security of the Company hereby grants to the Class A Members and the Class B Members (other than debt with no equity featureany Defaulting Member) including without limitationthe right to purchase any New Securities that the Company or any of its subsidiaries may, any debt security from time to time, propose to sell and issue, pursuant to the terms of this Section 6.3 (the “Preemptive Right”). In the event that the Company proposes to undertake an issuance of New Securities, it shall give each Class A Member and Class B Member written notice of its intention (the “New Securities Notice”), describing the type of New Securities, the price, and the general terms upon which by its terms is convertible into or exchangeable for any equity security the Company proposes to issue the same. Each Class A Member and Class B Member shall have twenty (20) days after receipt of the Company, (iv) any security of the Company that is a combination of debt and equity, New Securities Notice to agree to purchase all or (v) any option, warrant or other right to subscribe for, purchase or otherwise acquire any such equity security or any debt security of the Company specified in (i)-(iv) above, unless in each case the Company shall have first offered to sell a portion of such securities (the “Offered Securities”) to each Investor who holds at least 5% its Pro Rata share of the then outstanding shares New Securities at the price and upon the terms specified in the New Securities Notice by giving written notice to the Company and stating therein the quantity of Preferred Stock New Securities to be purchased. In the event that any Class A Member or Class B Member fails to exercise in part or in full the Preemptive Right within the twenty (each an “Offeree” and collectively20)-day period specified above, the “Offerees”) Board shall promptly notify the purchasing Members and the purchasing Members, Pro Rata or as follows: each Offeree shall have they may otherwise agree, may purchase the right (but not an obligation) to purchase (x) up to that portion of the Offered remaining New Securities as the number of shares of capital stock then held by such Offeree (assuming for such purposes exercise, conversion and exchange of all outstanding options, warrants or convertible securities of the Company exercisable, convertible and/or exchangeable into shares of Common Stock) bears to the total number of the outstanding shares of capital stock of the Company (assuming for such purposes exercise, conversion and exchange of all outstanding options, warrants or convertible securities of the Company exercisable, convertible and/or exchangeable into shares of Common Stock) (the “Basic Amount”), and (y) such additional portion of the Offered Securities as such Offeree shall indicate it will purchase should the other Offerees subscribe for less than their respective Basic Amounts (the “Undersubscription Amount”), at a price and on such other terms as shall have been specified by the Company in writing delivered to such Offeree (the “Offer”), which Offer by its terms shall remain open and irrevocable for a period of within thirty (30) days from after receipt thereof. The Offer shall disclose the identity of the proposed transfereeNew Securities Notice. Each Member who elects to purchase any New Securities shall make payment therefor by wire transfer to the Company within thirty (30) days after receipt of the New Securities Notice, and each such payment shall be considered an additional Capital Contribution; provided, however, that if any Member has elected to purchase New Securities but fails to make payment therefor by the thirtieth (30th) day following receipt of the New Securities Notice, the Offered purchasing Members shall have an additional ten (10) day period in which to purchase such unpurchased New Securities proposed to be sold, and the terms and conditions (including price) of the proposed salePro Rata or as they may otherwise agree.

Preemptive Right. The In the event that, at any time or from time ---------------- to time, the Company proposes to issue or sell newly issued shares of Common Stock (which term shall not issueinclude, sell for purposes of this Section 8.11, shares of any class or exchange, agree or obligate itself to issue, sell or exchangeseries of common stock of the Company, or reserve securities convertible, exchangeable or set aside for issuance, sale exercisable into Common Stock or exchange, any (i) shares class or series of Common Stock, or any options, warrants or other rights to acquire shares of Common Stock or any class or series of Common Stock (ii) any other equity security "New Securities")), the Company -------------- shall first notify each Purchaser of all relevant terms and conditions of the sale of the New Securities and offer to each Purchaser, and each Purchaser will have the right to purchase from the Company, upon the same terms and conditions as the Company proposes to sell the New Securities, such portion of the New Securities so as to maintain the aggregate proportionate ownership of the capital stock of the Company, including without limitationon a fully diluted basis, Preferred Stockheld by each Purchaser immediately prior to the issuance of the New Securities. Each Purchaser shall have 15 Business Days following receipt of any notice to accept or reject such offer. In the event that after the giving of such notice by the Company the Company changes the terms or conditions on which it proposes to issue or sell such New Securities, the Company shall be obligated to notify the Purchasers of such changed terms and conditions and the Purchaser's rights under this Section 8.11 will again apply. The rights of the Purchaser under this Section 8.11 shall not apply to: (i) New Securities issued upon the exercise or conversion of any previously outstanding securities; (ii) New Securities issued in connection with any merger, consolidation, combination, purchase of all or substantially all of the assets of another Person or other reorganization; (iii) New Securities issued in connection with any debt security stock split, stock dividend or recapitalization of the Company; (iv) New Securities issued to employees, consultants, officers or directors of the Company (other than debt with no equity feature) including without limitationpursuant to any stock option, any debt security which by its terms is convertible into stock purchase or exchangeable stock bonus plan, agreement or arrangement for any equity security the primary purpose of the Companysoliciting or retaining such employees', (iv) any security of the Company that is a combination of debt consultants', officers' or directors' services; and equity, or (v) any option, warrant New Securities issued to providers of debt or other right lease financing to subscribe for, purchase or otherwise acquire any such equity security or any debt security of the Company specified in (i)-(iv) above, unless in each case the Company shall have first offered to sell a portion of such securities (the “Offered Securities”) to each Investor who holds at least 5% of the then outstanding shares of Preferred Stock (each an “Offeree” and collectively, the “Offerees”) as follows: each Offeree shall have the right (but not an obligation) to purchase (x) up to that portion of the Offered Securities as the number of shares of capital stock then held by such Offeree (assuming for such purposes exercise, conversion and exchange of all outstanding options, warrants or convertible securities of the Company exercisable, convertible and/or exchangeable into shares of Common Stock) bears to the total number of the outstanding shares of capital stock of the Company (assuming for such purposes exercise, conversion and exchange of all outstanding options, warrants or convertible securities of the Company exercisable, convertible and/or exchangeable into shares of Common Stock) (the “Basic Amount”), and (y) such additional portion of the Offered Securities as such Offeree shall indicate it will purchase should the other Offerees subscribe for less than their respective Basic Amounts (the “Undersubscription Amount”), at a price and on such other terms as shall have been specified by the Company in writing delivered to connection with the provision of such Offeree (the “Offer”), which Offer by its terms shall remain open and irrevocable for a period of thirty (30) days from receipt thereof. The Offer shall disclose the identity of the proposed transferee, the Offered Securities proposed to be sold, and the terms and conditions (including price) of the proposed salefinancing.

Preemptive Right. The Company shall not issue, sell or exchange, agree or obligate itself Prior to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, any (i) shares of Common Stock, (ii) any other equity security of the Company, including without limitation, Preferred Stock, (iii) any debt security of issuance by the Company (other than debt with no equity featurepursuant to the Warrants) including without limitationof any shares of a particular class of capital stock to any Person (an "Offeree"), any debt security which by its terms is convertible into or exchangeable for any equity security of after the Companydate hereof (a "Proposed Issuance"), (iv) any security of the Company that is a combination of debt and equity, or (v) any option, warrant or other right to subscribe for, purchase or otherwise acquire any such equity security or any debt security of the Company specified in (i)-(iv) above, unless in each case the Company shall have first offered will offer to sell to each Stockholder a portion number of such securities (the “"Offered Securities”Shares") necessary to ensure that such Stockholder's Ownership Ratio with respect to such class of capital stock immediately after the Proposed Issuance (including the Offered Shares) is equal to the Ownership Ratio immediately prior to the Proposed Issuance; provided that neither (A) the issuance by the Company of shares to any member of Management within 2 years of the Closing Date nor (B) the reissuance to Management by the Company of shares which were repurchased by the Company shall be a Proposed Issuance. The Company shall give each Investor who holds Stockholder at least 510 business days prior written notice of any Proposed Issuance, which notice shall disclose in reasonable detail the proposed terms and conditions of such issuance (the "Issuance Notice"). Each Stockholder will be entitled to elect to purchase all or any of the Offered Shares for the same consideration and otherwise on the same terms as the Offeree by delivery of a written notice to the Company within 5 business days after delivery of the Issuance Notice (the "Election Notice"). If any such Stockholder elects to purchase any Offered Shares, the sale of the Offered Shares shall be consummated at the same time as the Proposed Issuance or 20 business days after the delivery of the Election Notice, whichever occurs later. The rights granted in this Section 5 are exercisable by the Stockholders and their Permitted Transferees alone and are not transferable or assignable in connection with a sale of capital stock or otherwise. This Section 5 will terminate automatically with respect to any particular Stockholder, and be of no further force and effect with respect to such Stockholder, upon the earlier to occur of the consummation of an underwritten public offering registered under the Securities Act of the Common Stock or such Stockholder ceasing to own at least 50% of the then outstanding shares of Preferred Stock (each an “Offeree” and collectively, the “Offerees”) as follows: each Offeree shall have the right (but not an obligation) to purchase (x) up to that portion of the Offered Securities as the number of shares of capital stock then held owned by such Offeree (assuming for such purposes exercise, conversion and exchange of all outstanding options, warrants or convertible securities of it on the Company exercisable, convertible and/or exchangeable into shares of Common Stock) bears to the total number of the outstanding shares of capital stock of the Company (assuming for such purposes exercise, conversion and exchange of all outstanding options, warrants or convertible securities of the Company exercisable, convertible and/or exchangeable into shares of Common Stock) (the “Basic Amount”), and (y) such additional portion of the Offered Securities as such Offeree shall indicate it will purchase should the other Offerees subscribe for less than their respective Basic Amounts (the “Undersubscription Amount”), at a price and on such other terms as shall have been specified by the Company in writing delivered to such Offeree (the “Offer”), which Offer by its terms shall remain open and irrevocable for a period of thirty (30) days from receipt thereof. The Offer shall disclose the identity of the proposed transferee, the Offered Securities proposed to be sold, and the terms and conditions (including price) of the proposed saledate hereof.

Preemptive Right. The Company shall not issue, sell If Ordinary Shares are proposed to be issued for cash (other than issuances with respect to employee benefit plans in accordance with Section 6.2 or exchange, agree in connection with a Listing or obligate itself to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, any Public Offering) (i) shares of Common Stockprior to a Listing or Public Offering at a price per share which is less than that specified in the Subscription Agreement, (ii) any other equity security of after a Listing or Public Offering at a price per share which is less than that published as the Company, including without limitation, Preferred Stockclosing price on the principal stock exchange on which the Ordinary Shares are listed on the last trading day prior to the corporate action formally fixing or approving the issue price for such additional Ordinary Shares, (iii) at any debt security time following the completion of the Company (other than debt with no equity feature) including without limitationOffer to Purchase, to the KKR Partnership or any debt security which of its Affiliates, PROVIDED that any issues prior to such time shall be for the same price per share paid by its terms is convertible into the Purchasers pursuant to the Subscription Agreement, or exchangeable for any equity security of the Company, (iv) if ordinary shares of any security subsidiary of Holdings ("SUBSIDIARY SHARES") are proposed to be issued for cash at any time to the Company that is a combination of debt and equity, or (v) any option, warrant or other right to subscribe for, purchase or otherwise acquire any such equity security KKR Partnership or any debt security of its Affiliates, then the Company specified in (i)-(iv) above, unless in each case the Company shall have first offered to sell a portion of such securities (the “Offered Securities”) to each Investor who holds at least 5% of the then outstanding shares of Preferred Stock (each an “Offeree” Purchasers and collectively, the “Offerees”) as follows: each Offeree their Permitted Transferees shall have the right to subscribe in cash on the proposed terms for their Preemptive Right Pro Rata Share of such Ordinary Shares or Subsidiary Shares. The "PREEMPTIVE RIGHT PRO RATA SHARE" of a Purchaser or a Permitted Transferee shall be, at any given time, (but not an obligationi) such number of Ordinary Shares or Subsidiary Shares proposed to purchase be issued for cash multiplied by (xii) up to that portion a fraction, the numerator of the Offered Securities as which is the number of shares of capital stock Ordinary Shares then held by such Offeree (assuming for such purposes exercise, conversion Purchaser or Permitted Transferee and exchange the denominator of all outstanding options, warrants or convertible securities of the Company exercisable, convertible and/or exchangeable into shares of Common Stock) bears to which is the total number of Ordinary Shares issued and outstanding before giving effect to the outstanding shares of capital stock of the Company (assuming for such purposes exercise, conversion and exchange of all outstanding options, warrants or convertible securities of the Company exercisable, convertible and/or exchangeable into shares of Common Stock) (the “Basic Amount”), and (y) such additional portion of the Offered Securities as such Offeree shall indicate it will purchase should the other Offerees subscribe for less than their respective Basic Amounts (the “Undersubscription Amount”), at a price and on such other terms as shall have been specified by the Company in writing delivered to such Offeree (the “Offer”), which Offer by its terms shall remain open and irrevocable for a period of thirty (30) days from receipt thereof. The Offer shall disclose the identity of the proposed transferee, the Offered Securities proposed to be sold, and the terms and conditions (including price) of the proposed salenew issuance.

Preemptive Right. The Company shall So long as SUBSCRIBER beneficially owns at least 30% of the Shares and the common stock underlying the Purchase Option (considered on a fully-diluted basis whether or not issuethen exercisable) sold to SUBSCRIBER under this Subscription Agreement, sell or exchangeif ISSUER elects to sell, agree or obligate itself for cash, New Securities (as hereinafter defined) at any time prior to issuethe six-year anniversary of the date of this Subscription Agreement, sell or exchangeSUBSCRIBER will have the right to purchase from ISSUER on the same terms as the proposed sale, or reserve or set aside for issuancethat number of securities being offered as will maintain its then percentage ownership of ISSUER's Common Stock calculated on a fully diluted basis, sale or exchange, but based solely on the Shares purchased hereunder and underlying the Purchase Option and not including any (i) additional shares of Common StockStock which may be owned by SUBSCRIBER. ISSUER shall give notice to the SUBSCRIBER in writing ("ISSUER Notice") at least ten business days prior to the proposed closing date of such proposed sale. The ISSUER Notice shall describe in reasonable detail the proposed sale including, (ii) any other equity security of the Company, including without limitation, Preferred Stockthe nature and number of securities to be sold, (iii) any debt security the nature of such sale, the consideration to be paid, and the name and address of the Company prospective purchasers (other than debt with no equity feature) including without limitation, any debt security which by its terms is convertible into or exchangeable for any equity security "Buyer"). Upon the giving of the CompanyISSUER Notice, (iv) any security of the Company that is a combination of debt and equity, or (v) any option, warrant or other right to subscribe for, purchase or otherwise acquire any such equity security or any debt security of the Company specified in (i)-(iv) above, unless in each case the Company shall have first offered to sell a portion of such securities (the “Offered Securities”) to each Investor who holds at least 5% of the then outstanding shares of Preferred Stock (each an “Offeree” and collectively, the “Offerees”) as follows: each Offeree SUBSCRIBER shall have the right (right, but not an the obligation) , exercisable by written notice to the ISSUER within five business days after receipt of the ISSUER Notice, to indicate to ISSUER its desire to purchase (x) up its permitted number of securities being sold in the proposed sale on the same terms and conditions as ISSUER is selling the securities in the proposed sale. The SUBSCRIBER will purchase the securities to that portion be offered and purchased under this section at the same time as the closing of the Offered Securities as the number proposed sale. For purposes of shares of capital stock then held by such Offeree (assuming for such purposes exercisethis Section 8, conversion and exchange of all outstanding options, warrants or convertible securities of the Company exercisable, convertible and/or exchangeable into shares of Common Stock) bears to the total number of the outstanding "New Securities" means any shares of capital stock of the Company (assuming for such purposes exerciseISSUER, conversion including Common Stock and exchange of all outstanding optionspreferred stock, whether now authorized or not, and rights, options or warrants or convertible securities of the Company exercisable, convertible and/or exchangeable into to purchase said shares of Common StockStock or preferred stock of the ISSUER, and securities of any type whatsoever that are, or may become, convertible into said shares of Common Stock or preferred stock; provided, however, "New Securities" does not include (i) the shares of Common Stock issuable upon exercise of the Purchase Option, (ii) securities issuable upon exercise or conversion securities outstanding on the “Basic Amount”date hereof, (iii) securities offered to the public generally pursuant to a registration statement under the Securities Act, (iv) securities issued to employees, officers or directors of, or consultants to, the ISSUER, or issued or issuable to banks or other institutional lenders or lessors in connection with capital asset leases or borrowings for the acquisition of capital assets, landlords, or other providers of goods and services to the ISSUER, if pursuant to any arrangement approved by the board of directors of the ISSUER (including securities issued upon exercise or conversion of any such securities), and (yv) securities issued for cash in any private placement by ISSUER subject to an agreement entered into within ten business days after the date of this Subscription Agreement (including securities issued upon exercise or conversion of any such additional portion securities), or (vi) any issuance of capital stock of the Offered Securities as such Offeree shall indicate it will purchase should ISSUER upon the other Offerees subscribe for less than their respective Basic Amounts (the “Undersubscription Amount”), at a price and on such other terms as shall have been specified by the Company in writing delivered to such Offeree (the “Offer”), which Offer by its terms shall remain open and irrevocable for a period exercise or conversion of thirty (30) days from receipt thereof. The Offer shall disclose the identity of the proposed transfereederivative securities, the Offered Securities proposed to be sold, and issuance of which triggered the terms and conditions (including price) of the proposed salepre- emptive rights set forth in this Section 8.

Preemptive Right. The Company shall not issue, sell give each Stockholder 30 days’ prior written notice of the proposed issuance or exchange, agree sale by the Company or obligate itself to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, any (i) shares of its Subsidiaries of any Common Stock, (ii) any other equity security of the CompanyCommon Stock Equivalent, including without limitation, Preferred Stock, (iii) any debt security of the Company (other than debt with no equity feature) including without limitation, any debt security which by its terms is convertible into or exchangeable for any equity security of the Company, (iv) any security of the Company that is a combination of debt and equity, or (v) any option, warrant or other right to subscribe for, purchase or otherwise acquire any such equity security or any debt security of the Company specified in (i)-(iv) above, unless in each case the Company shall have first offered to sell a portion of such securities (the “Offered Securities”) to each Investor who holds at least 5% of the then outstanding shares of Preferred Stock (each an “Offeree” and collectively, the “Offerees”) as follows: each Offeree shall have the right (but not an obligation) to purchase (x) up to that portion of the Offered Securities as the number of shares of capital stock then held by such Offeree (assuming for such purposes exercise, conversion and exchange of all outstanding options, warrants or convertible securities of the Company exercisable, convertible and/or exchangeable into shares of Common Stock) bears to the total number of the outstanding shares of capital preferred stock of the Company (assuming or any other security exercisable for such purposes or convertible into any shares of any series of preferred stock), any equity or debt securities of any Subsidiary of the Company or any securities evidencing Indebtedness or other securities or equity or debt interest of the Company or any of its Subsidiaries (each, a “New Issuance”) other than Common Stock or Common Stock Equivalents issued or sold by the Company or any of its Subsidiaries (i) to the Company’s employees, independent contractors, strategic partners, consultants or directors pursuant to arrangements approved unanimously by the Board of Directors, (ii) in connection with acquisitions of other companies or businesses, (iii) as a stock split or stock dividend, (iv) pursuant to the exercise, conversion and or exchange of all any then outstanding optionsCommon Stock Equivalent, warrants (v) pursuant to a public offering registered under the Securities Act, or convertible securities (vi) in connection with a Sale of the Company exercisableCompany. Such notice shall specify the number and class of securities to be issued, convertible and/or exchangeable into shares the rights, terms and privileges thereof, the price at which such securities shall be issued and the portion such Stockholder shall be entitled to purchase pursuant to this Section 5.1. Each Stockholder shall be entitled to purchase that portion of a New Issuance equal to a fraction, the numerator of which shall be the total number of Shares owned by such Stockholder, giving effect, without duplication, to all Common Stock) (Stock Equivalents owned by such Stockholder, whether or not then convertible, exercisable or exchangeable, but only to the “Basic Amount”)extent then vested, and the denominator of which shall be the total number of Shares then outstanding, giving effect, without duplication, to all Common Stock Equivalents outstanding, whether or not then convertible, exercisable or exchangeable, but only to the extent then vested (y) including such additional portion of the Offered Securities as such Offeree shall indicate it will purchase should the other Offerees subscribe for less than their respective Basic Amounts (the “Undersubscription Amount”Stockholder’s Shares), at a the most favorable price and on such other the most favorable terms as are offered to any other Persons, by giving written notice of such election to the Company within 15 days after notice of such New Issuance has been given to such Stockholder; provided, however, that no Stockholder shall have been specified by the Company in writing delivered any right to purchase securities pursuant to this Section 5.1 if, prior to a sale of securities to such Offeree (Stockholder pursuant to this Section, such securities would be required to be registered under the “Offer”), which Offer by its terms shall remain open and irrevocable for a period of thirty (30) days from receipt thereofSecurities Act. The Offer failure of a Stockholder to give any written notice specified in this Section 5.1 within the time period specified herein shall disclose the identity of the proposed transferee, the Offered Securities proposed be deemed to be sold, and the terms and conditions (including price) a waiver of the proposed saleits rights under this Section 5.1.

Preemptive Right. The Company shall not issue, sell or exchange, agree or obligate itself to issue, sell or exchange, or reserve or set aside for In the event of the issuance, sale sale, grant or exchange, distribution by the Company of any (i) shares of Common Stock, (ii) any other equity security capital stock of the Company, including without limitation(collectively, Preferred Stock, (iiian "Equity Security") or any debt security of the Company (other than debt with no equity feature) including without limitation, any debt security which by its terms is convertible into or exchangeable for any such Equity Security of the Company, each Purchaser and the first transferee of any Warrants from a Purchaser which, in the case of any of the foregoing, at such time is a Holder of Warrants and/or Warrant Shares (each, an "Entitled Holder") shall be entitled to participate in such issuance, sale, grant or distribution on a pro rata basis, and on the same terms and conditions (to the extent applicable to any such Entitled Holder), so that following such issuance, sale, grant or distribution each Entitled Holder will, if it has elected to purchase or otherwise receive the new securities to be issued, sold, granted or distributed (and after giving effect to any adjustments pursuant to Section 9 hereof), have the same percentage of the equity ownership of the Company (on a fully diluted basis and assuming exercise of the Warrants) as such Entitled Holder had (on a fully diluted basis and assuming exercise of the Warrants) prior to such issuance, sale, grant or distribution. Notwithstanding the foregoing, however, Entitled Holders will not be entitled to any such preemptive right with respect to, after the date hereof, (i) the issuance of any Equity Security upon the exercise or conversion or any security convertible into or exchangeable for any Equity Security of the Company or the issuance of any option or other right to acquire securities pursuant to an employee benefit plan or a stock option plan, (ii) any underwritten public offering of any Securities of the Company, (iii) the issuance of any securities as consideration for an acquisition by the Company of stock or operating assets of any corporation or other business entity or (iv) any security stock splits or stock dividends. Any such Entitled Holder desiring to utilize any such preemptive rights must so notify the Company within 10 days of its receipt of notice from the Company that is a combination of debt and equity, or (v) any option, warrant or other right to subscribe for, purchase or otherwise acquire any such equity security or any debt security of the Company specified in (i)-(iv) above, unless in each case the Company shall have first offered to sell is undertaking a portion of such securities (the “Offered Securities”) to each Investor who holds at least 5% of the then outstanding shares of Preferred Stock (each an “Offeree” and collectively, the “Offerees”) as follows: each Offeree shall have the right (but not an obligation) to purchase (x) up to transaction that portion of the Offered Securities as the number of shares of capital stock then held by such Offeree (assuming for such purposes exercise, conversion and exchange of all outstanding options, warrants or convertible securities of the Company exercisable, convertible and/or exchangeable into shares of Common Stock) bears would give rise to the total number of the outstanding shares of capital stock of the Company (assuming for such purposes exercise, conversion and exchange of all outstanding options, warrants or convertible securities of the Company exercisable, convertible and/or exchangeable into shares of Common Stock) (the “Basic Amount”), and (y) such additional portion of the Offered Securities as such Offeree shall indicate it will purchase should the other Offerees subscribe for less than their respective Basic Amounts (the “Undersubscription Amount”), at a price and on such other terms as shall have been specified by the Company in writing delivered to such Offeree (the “Offer”), which Offer by its terms shall remain open and irrevocable for a period of thirty (30) days from receipt thereof. The Offer shall disclose the identity of the proposed transferee, the Offered Securities proposed to be sold, and the terms and conditions (including price) of the proposed salerights created under this Section 14.

Preemptive Right. The At the time of any future issuance and sale of membership interests in the Company shall not issue, sell or exchange, agree or obligate itself pursuant to issue, sell or exchange, or reserve or set aside any future offerings to raise capital for issuance, sale or exchange, any (i) shares of Common Stock, (ii) any other equity security of the Company, including without limitation, Preferred Stock, (iii) any debt security of the Company (other than debt with no equity feature) including without limitationthe "New Securities"), any debt security which by its terms is convertible into or exchangeable for any equity security of the Company, (iv) any security of the Company that is a combination of debt and equity, or (v) any option, warrant or other right to subscribe for, purchase or otherwise acquire any such equity security or any debt security of the Company specified in (i)-(iv) above, unless in each case the Company shall have first offered to sell a portion of such securities (the “Offered Securities”) offer to each Investor who holds at least 5% of Preferred Shareholder by written notice the then outstanding shares of Preferred Stock (each an “Offeree” and collectivelyright, the “Offerees”) as follows: each Offeree shall have the right (but not an obligation) to purchase (x) up to that portion of the Offered Securities as the number of shares of capital stock then held by such Offeree (assuming for such purposes exercise, conversion and exchange of all outstanding options, warrants or convertible securities of the Company exercisable, convertible and/or exchangeable into shares of Common Stock) bears to the total number of the outstanding shares of capital stock of the Company (assuming for such purposes exercise, conversion and exchange of all outstanding options, warrants or convertible securities of the Company exercisable, convertible and/or exchangeable into shares of Common Stock) (the “Basic Amount”), and (y) such additional portion of the Offered Securities as such Offeree shall indicate it will purchase should the other Offerees subscribe for less than their respective Basic Amounts (the “Undersubscription Amount”), at a price and on such other terms as shall have been specified by the Company in writing delivered to such Offeree (the “Offer”), which Offer by its terms shall remain open and irrevocable for a period of thirty (30) days from receipt thereofdays, to purchase for cash at an amount equal to the price or other consideration for which the New Securities are to be issued, a number of the New Securities so that, after giving effect to such issuanc e, such Preferred Shareholder will continue to maintain his same Percentage Interest in the Company as of the date of such notice (the "Preemptive Right"); provided, -------- however, that the Preemptive Right of the Preferred Shareholders shall not apply ------- to the New Securities which are (A) Series C Common Shares issued to employees or consultants of the Company in connection with services they provide to the Company; (B) issued to pursuant to an acquisition, merger, consolidation or similar business combination transaction and (C) issued pursuant to a public offering. The Offer Company's written notice to the Preferred Shareholders shall disclose describe the identity of the proposed transferee, the Offered New Securities proposed to be soldissued by the Company and specify the number, price and payment terms. Each Preferred Shareholder may accept the Company's offer as to the full number of New Securities offered to it or any lesser number, by written notice thereof given by it to the Company prior to the expiration of the aforesaid thirty (30) day period, in which event the Company shall promptly sell and such Preferred Shareholder shall buy, upon the terms specified, the number of securities June 17, 1998 agreed to be purchased by such Preferred Shareholder. The Company shall be free to offer and conditions (including price) sell to any third party or parties the number of New Securities not purchased by any Preferred Shareholder, at a price and on payment terms no less favorable to the proposed saleCompany than those specified in such notice of offer to the Preferred Shareholders.

Preemptive Right. The Company shall not issue, sell or exchange, agree or obligate itself to issue, sell or exchange, or reserve or set aside for (a) In the event of the issuance, sale sale, grant or exchange, distribution by the Company of any (i) shares of Common Stock, (ii) any other equity security Capital Stock of the Company, including without limitation, Preferred Stock, (iii) or any debt voting or other security of the Company whose distributions, interest or amounts upon liquidation varies with the income or value of the Company (other than debt with no equity featurecollectively, an "Equity Security") including without limitation, or any debt security which by its terms is convertible into or exchangeable for any such Equity Security of the Company, or any contract right measured or otherwise valued by reference thereto, each TCW/Crescent Investor and Audax Investor (as defined below) that is a Holder (which terms as used in this Section 14 and Section 15 specifically includes a holder of Warrant Shares and each TCW/Crescent Investor and Audax Investor which is a holder of Warrants or Warrant Shares) and each other Holder that, together with its Affiliates, holds Warrants or Warrant Shares (or both) representing twenty percent (20%) or more of the aggregate number of the Warrants and Warrant Shares outstanding, subject to the provisions of Section 14(d) hereof, shall (to the extent an adjustment to the Warrant Number would not be required pursuant to the provisions of Section 9 hereof as a result of such issuance, sale, grant or distribution) be entitled to participate in such issuance, sale, grant or distribution on a pro rata basis, and on the same terms and conditions (to the extent applicable to any such Holder), so that following such issuance, sale, grant or distribution each such Holder will, if it has elected to purchase or otherwise receive the new securities to be issued, sold, granted or distributed, have the same percentage of the equity security ownership of the Company (on a fully diluted basis) as such Holder had (on a fully diluted basis) prior to such issuance, sale, grant or distribution. Notwithstanding the foregoing, however, no Holder will be entitled to any such preemptive right with respect to the issuance of Equity Securities or securities convertible into or exchangeable for Equity Securities (i) in connection with an Equity Offering or a Sale of the Company, (ivii) pursuant to the Stock Option Plan, (iii) upon the exercise of any security of the Company that is a combination of debt and equity, or (v) any option, warrant option or other right to subscribe fordescribed in clause (ii) above or (iv) upon the conversion, purchase exchange or otherwise acquire exercise of any such equity security outstanding securities convertible into or exchangeable or exercisable into Common Stock. As used herein, the term "Audax Investors" means, collectively, Audax Mezzanine Fund, L.P., a Delaware limited partnership, Audax Co-Invest L.P., a Delaware limited partnership, Audax Trust Co-Invest, L.P., a Delaware limited partnership, or any debt security of the Company specified in their Affiliates (i)-(iv) aboveeach, unless in each case the Company shall have first offered to sell a portion of such securities (the “Offered Securities”) to each Investor who holds at least 5% of the then outstanding shares of Preferred Stock (each individually, an “Offeree” and collectively, the “Offerees”) as follows: each Offeree shall have the right (but not an obligation) to purchase (x) up to that portion of the Offered Securities as the number of shares of capital stock then held by such Offeree (assuming for such purposes exercise, conversion and exchange of all outstanding options, warrants or convertible securities of the Company exercisable, convertible and/or exchangeable into shares of Common Stock) bears to the total number of the outstanding shares of capital stock of the Company (assuming for such purposes exercise, conversion and exchange of all outstanding options, warrants or convertible securities of the Company exercisable, convertible and/or exchangeable into shares of Common Stock) (the “Basic Amount”"Audax Investor"), and (y) such additional portion of the Offered Securities as such Offeree shall indicate it will purchase should the other Offerees subscribe for less than their respective Basic Amounts (the “Undersubscription Amount”), at a price and on such other terms as shall have been specified by the Company in writing delivered to such Offeree (the “Offer”), which Offer by its terms shall remain open and irrevocable for a period of thirty (30) days from receipt thereof. The Offer shall disclose the identity of the proposed transferee, the Offered Securities proposed to be sold, and the terms and conditions (including price) of the proposed sale.

Preemptive Right. The If the Board members nominated by MxXxxxxxx, on behalf of the Stockholders, determine that the Company shall not issueneeds, sell or exchange, agree or obligate itself to issue, sell or exchangerequires, or reserve desires additional capital for the purpose of major capital improvements, expansions, or set aside for issuanceacquisitions, the Stockholders shall authorize the issuance and sale or exchange, any (i) to MxXxxxxxx of shares of Common Stock, (ii) any other equity security capital stock in exchange therefor. Any issuances and sales of the Company, including without limitation, Preferred Stock, (iii) any debt security of the Company (capital stock other than debt with no equity feature) including without limitationexclusively to MxXxxxxxx pursuant to the previous sentence shall be determined by all the Stockholders. In addition, if the Stockholders otherwise authorize the issuance or sale of any debt security which by its terms is convertible into or exchangeable for any equity security shares of the Companycapital stock, (iv) any security of the Company that is a combination of debt and equity, or (v) any option, warrant or other right to subscribe for, purchase or otherwise acquire any such equity security or any debt security of the Company specified in (i)-(iv) above, unless in each case the Company shall have first offered offer to sell a portion of MxXxxxxxx such securities (the “Offered Securities”) to each Investor who holds at least 5% of the then outstanding shares of Preferred Stock (each an “Offeree” and collectively, the “Offerees”) as follows: each Offeree shall have the right (but not an obligation) to purchase (x) up to that portion of the Offered Securities as the capital stock. The number of shares of capital stock then held to be issued, if any, pursuant to this clause (c) by such Offeree (assuming for such purposes exercise, conversion and exchange of all outstanding options, warrants or convertible securities the Company shall be sufficient to cause MxXxxxxxx'x fully-diluted percentage ownership of the Company exercisable, convertible and/or exchangeable into shares of Common Stock) bears to the total number of the outstanding shares of capital stock of the Company to be equal to (assuming for such purposes exercise, conversion and exchange of all outstanding options, warrants or convertible securities x) MxXxxxxxx'x proportion of the Company exercisableCompany's stockholders' equity, convertible and/or exchangeable into shares as set forth on the Company's most recent quarterly balance sheet, plus the fair market value of Common Stock) the amount of capital contributed by MxXxxxxxx (which in the “Basic Amount”case of acquisitions of ongoing business shall mean the total consideration paid or to be paid therefor), and in cash or kind, divided by (y) such additional portion the Company's stockholders' equity, as set forth on the Company's most recent quarterly balance sheet, plus the fair market value of the Offered Securities amount of capital contributed by MxXxxxxxx, in cash or kind; provided, however, that notwithstanding the foregoing, the Company shall use reasonable efforts to maintain a target ratio of stockholders' equity to total assets (each as such Offeree shall indicate it will purchase should set forth on a then current balance sheet of the other Offerees subscribe for Company) of not less than their respective Basic Amounts (the “Undersubscription Amount”), at a price and on such other terms as shall have been specified by the Company in writing delivered to such Offeree (the “Offer”), which Offer by its terms shall remain open and irrevocable for a period of thirty (30) days from receipt thereof. The Offer shall disclose the identity of the proposed transferee, the Offered Securities proposed to be sold, and the terms and conditions (including price) of the proposed sale40%.

Preemptive Right. The Company hereby grants to each Member the right to purchase, in accordance with the procedures set forth in this Section 3.9, such Member’s pro rata share, based on the Membership Interest of such Member relative to the Membership Interests of the other Members, of any Additional Interests which the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”). As used herein, “Additional Interests” shall not issue, sell mean Membership Interests or exchange, agree or obligate itself to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, any (i) shares of Common Stock, (ii) any other equity security ownership interests of the Company, including without limitation, Preferred Stock, (iii) any debt security of the Company (other than debt with no equity feature) including without limitationwhether now or hereinafter authorized, any debt security which by its terms is rights, options or warrants to purchase Membership Interests and any instrument of any kind whatsoever that are, or may become, convertible into or exchangeable for any equity security such Membership Interests or other ownership interest of the Company; provided, however, that the term “Additional Interests” shall not include the issuance of: (i) Membership Interests or other ownership interests to Persons other than Members (or their Affiliates) (1) in connection with any merger, consolidation, acquisition, or any reorganization or recapitalization in each case when Membership Interests are issued for or in respect of previously outstanding Membership Interests; (2) as consideration to a selling Person in connection with the acquisition of another Person by the Company or any of its Subsidiaries (including issuances to management of such Person in connection therewith); (3) to any debt holders of the Company or any of its Subsidiaries in connection with non-equity financing transactions; (ii) Membership Interests or other ownership interests to officers, employees, directors, consultants or other service providers of the Company or its subsidiaries pursuant to any option or other equity compensation plans approved by the Management Committee in connection with such Person’s employment or consulting arrangements or other service relationship with the Company or its subsidiaries; (iii) by reason of any subdivision (by split, distribution in kind, recapitalization or otherwise); or (iv) any security of the Company that is a combination of debt and equity, or (v) any option, warrant or other right to subscribe for, purchase or otherwise acquire any such equity security or any debt security of the Company specified in (i)-(iv) above, unless in each case the Company shall have first offered to sell a portion of such securities (the “Offered Securities”) to each Investor who holds at least 5% of the then outstanding shares of Preferred Stock (each an “Offeree” and collectively, the “Offerees”) as follows: each Offeree shall have the right (but not an obligation) to purchase (x) up to that portion of the Offered Securities as the number of shares of capital stock then held by such Offeree (assuming for such purposes exercise, conversion and exchange of all outstanding options, warrants or convertible securities of the Company exercisable, convertible and/or exchangeable into shares of Common Stock) bears issued to the total number of the outstanding shares of capital stock of the Company (assuming for such purposes exercise, conversion and exchange of all outstanding options, warrants or convertible securities of the Company exercisable, convertible and/or exchangeable into shares of Common Stock) (the “Basic Amount”), and (y) such additional portion of the Offered Securities as such Offeree shall indicate it will purchase should the other Offerees subscribe for less than their respective Basic Amounts (the “Undersubscription Amount”), at a price and on such other terms as shall have been specified by the Company public in writing delivered to such Offeree (the “Offer”), which Offer by its terms shall remain open and irrevocable for a period of thirty (30) days from receipt thereof. The Offer shall disclose the identity of the proposed transferee, the Offered Securities proposed to be sold, and the terms and conditions (including price) of the proposed saleconnection with any IPO.

Preemptive Right. The Company shall not issue, sell give each Stockholder 30 days' prior written notice of the proposed issuance or exchange, agree sale by the Company or obligate itself to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, any (i) shares of its Subsidiaries of any Common Stock, (ii) any other equity security of the CompanyCommon Stock Equivalent, including without limitation, Preferred Stock, (iii) any debt security of the Company (other than debt with no equity feature) including without limitation, any debt security which by its terms is convertible into or exchangeable for any equity security of the Company, (iv) any security of the Company that is a combination of debt and equity, or (v) any option, warrant or other right to subscribe for, purchase or otherwise acquire any such equity security or any debt security of the Company specified in (i)-(iv) above, unless in each case the Company shall have first offered to sell a portion of such securities (the “Offered Securities”) to each Investor who holds at least 5% of the then outstanding shares of Preferred Stock (each an “Offeree” and collectively, the “Offerees”) as follows: each Offeree shall have the right (but not an obligation) to purchase (x) up to that portion of the Offered Securities as the number of shares of capital stock then held by such Offeree (assuming for such purposes exercise, conversion and exchange of all outstanding options, warrants or convertible securities of the Company exercisable, convertible and/or exchangeable into shares of Common Stock) bears to the total number of the outstanding shares of capital preferred stock of the Company (assuming or any other security exercisable for such purposes or convertible into any shares of any series of preferred stock), any equity or debt securities of any Subsidiary of the Company or any securities evidencing Indebtedness or other securities or equity or debt interest of the Company or any of its Subsidiaries (each, a "New Issuance") other than Common Stock or Common Stock Equivalents issued or sold by the Company or any of its Subsidiaries (i) to the Company's employees, independent contractors, strategic partners, consultants or directors pursuant to arrangements approved unanimously by the Board of Directors, (ii) in connection with acquisitions of other companies or businesses, (iii) as a stock split or stock dividend, (iv) pursuant to the exercise, conversion and or exchange of all any then outstanding optionsCommon Stock Equivalent, warrants (v) pursuant to a public offering registered under the Securities Act, or convertible securities (vi) in connection with a Sale of the Company exercisableCompany. Such notice shall specify the number and class of securities to be issued, convertible and/or exchangeable into shares the rights, terms and privileges thereof, the price at which such securities shall be issued and the portion such Stockholder shall be entitled to purchase pursuant to this Section 5.1. Each Stockholder shall be entitled to purchase that portion of a New Issuance equal to a fraction, the numerator of which shall be the total number of Shares owned by such Stockholder, giving effect, without duplication, to all Common Stock) (Stock Equivalents owned by such Stockholder, whether or not then convertible, exercisable or exchangeable, but only to the “Basic Amount”)extent then vested, and the denominator of which shall be the total number of Shares then outstanding, giving effect, without duplication, to all Common Stock Equivalents outstanding, whether or not then convertible, exercisable or exchangeable, but only to the extent then vested (y) including such additional portion of the Offered Securities as such Offeree shall indicate it will purchase should the other Offerees subscribe for less than their respective Basic Amounts (the “Undersubscription Amount”Stockholder's Shares), at a the most favorable price and on such other the most favorable terms as are offered to any other Persons, by giving written notice of such election to the Company within 15 days after notice of such New Issuance has been given to such Stockholder; PROVIDED, HOWEVER, that no Stockholder shall have been specified by the Company in writing delivered any right to purchase securities pursuant to this Section 5.1 if, prior to a sale of securities to such Offeree (Stockholder pursuant to this Section, such securities would be required to be registered under the “Offer”), which Offer by its terms shall remain open and irrevocable for a period of thirty (30) days from receipt thereofSecurities Act. The Offer failure of a Stockholder to give any written notice specified in this Section 5.1 within the time period specified herein shall disclose the identity of the proposed transferee, the Offered Securities proposed be deemed to be sold, and the terms and conditions (including price) a waiver of the proposed saleits rights under this Section 5.1.

Preemptive Right. For so long as any shares of Preferred Stock are outstanding, the Buyer shall have the rights set forth in this Article 10 as if it was the holder of record and beneficially of all such outstanding shares. The rights set forth herein are in favor of the Buyer and its successors and assigns, provided that any exercise procedures to be accomplished hereunder shall be performed by the Buyer or its nominee and no other person may accomplish such procedures or seek to exercise the preemptive right set forth in this Article 10. Absent an express assignment of the rights of the Buyer under this Article 10, no transfer by the Buyer of shares of Preferred Stock shall affect the rights of the Buyer hereunder. "The Buyer shall have, as if it were the holder of each and every of the issued and outstanding shares of Preferred Stock, at any time and from time to time the preemptive right to purchase, in the case of the proposed issuance by the Company shall not issue, sell or exchange, agree or obligate itself to issue, sell or exchangeof, or reserve or set aside for issuance, sale or exchangethe proposed granting by the Company of shares of, any (i) shares of Common Stock, (ii) any other equity security class of the Company's stock ("Capital Stock"), including without limitationor any rights to subscribe for or to purchase, Preferred Stockor any options for the purchase of, (iii) Common Stock or any debt security of the Company (other than debt with no equity feature) including without limitation, any debt security which by its terms is stock or securities convertible into or exchangeable for Common Stock (including, without limitation, interests in the Operating Partnership) (such rights or options being hereinafter referred to as "Options" and such convertible or exchangeable stock or securities being hereinafter referred to as "Convertible Securities"). On each occasion that the Company proposes to issue Capital Stock, Options or Convertible Securities, or any equity security of the Companyforegoing, (iv) any security of the Company that is a combination of debt and equity, or (v) any option, warrant or other right to subscribe for, purchase or otherwise acquire any such equity security or any debt security of the Company specified in (i)-(iv) above, unless in each case the Company shall have first offered give to sell a portion of such securities (the “Offered Securities”) to each Investor who holds at least 5% of the then outstanding shares of Preferred Stock (each an “Offeree” and collectively, the “Offerees”) as follows: each Offeree shall have the right (but not an obligation) to purchase (x) up to that portion of the Offered Securities as the number of shares of capital stock then held by such Offeree (assuming for such purposes exercise, conversion and exchange of all outstanding options, warrants or convertible securities of the Company exercisable, convertible and/or exchangeable into shares of Common Stock) bears to the total number of the outstanding shares of capital stock of the Company (assuming for such purposes exercise, conversion and exchange of all outstanding options, warrants or convertible securities of the Company exercisable, convertible and/or exchangeable into shares of Common Stock) (the “Basic Amount”), and (y) such additional portion of the Offered Securities as such Offeree shall indicate it will purchase should the other Offerees subscribe for less than their respective Basic Amounts (the “Undersubscription Amount”), at a price and on such other terms as shall have been specified by the Company in writing delivered to such Offeree (the “Offer”), which Offer by its terms shall remain open and irrevocable for a period of thirty (30) days from receipt thereof. The Offer shall disclose the identity of the proposed transferee, the Offered Securities proposed to be sold, and the terms and conditions (including price) of the proposed sale.the

Preemptive Right. The Company shall not issue4.1.1 If at any time, sell or exchangeand from time to time after Closing, agree or obligate itself to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, any (i) shares of Common Stock, (ii) any other equity security of the Company, including without limitation, Preferred Stock, (iii) any debt security of the Company (other than debt with no equity feature) including without limitationproposes to grant, issue or sell any debt security which by its terms is convertible into or exchangeable for any equity security of the CompanyNew Securities, (iv) any security of the Company that is a combination of debt and equity, or (v) any option, warrant or other right to subscribe for, purchase or otherwise acquire any such equity security or any debt security of the Company specified in (i)-(iv) above, unless in each case the Company shall have first offered afford, prior to sell such grant, issuance or sale, to each of the Shareholders the preemptive right to purchase a portion of the New Securities equal to such securities (the “Offered Securities”) Shareholder’s pro-rata share. Each Shareholder shall have a right of over-allotment as provided below such that if any Shareholder declines or fails to each Investor who holds at least 5% exercise its right hereunder to purchase its pro-rata share of the then outstanding shares New Securities in full, each other Shareholder exercising its preemptive right hereunder may purchase such available portion, on a pro-rata basis. For the purposes of Preferred Stock Section ‎‎4.1, each Shareholder’s “pro-rata share” is the ratio of (each an “Offeree” and collectively, the “Offerees”a) as follows: each Offeree shall have the right (but not an obligation) to purchase (x) up to that portion of the Offered Securities as the number of shares of capital stock then held by such Offeree (assuming for such purposes exercise, conversion and exchange of all outstanding options, warrants or convertible securities of the Company exercisable, convertible and/or exchangeable into shares of Common Stock) bears to the total number of issued and paid-up Shares held by such Shareholder, and (b) the outstanding shares total number of capital stock issued and paid-up Shares held by all Shareholders immediately prior to the issuance of New Securities. If any Shareholder fails to elect to purchase its full pro-rata share of an offering of New Securities, then such remaining New Securities (“Over-Allotment Securities”) shall be made available to each Shareholder who has elected to purchase all or part of the Company (assuming for such purposes exercise, conversion and exchange of all outstanding options, warrants or convertible securities of the Company exercisable, convertible and/or exchangeable into shares of Common Stock) Over-Allotment Securities (the “Basic AmountAdditional New Shares”), ) on the same price and terms as indicated on the Issuance Notice. Each such Shareholder is entitled to be allocated to the lesser of (x) the amount of the Additional New Shares and (y) such additional portion the product obtained by multiplying (i) the amount of the Offered Over-Allotment Securities as such Offeree shall indicate it will purchase should the other Offerees subscribe for less than their respective Basic Amounts by (the “Undersubscription Amount”), at ii) a price and on such other terms as shall have been specified by the Company in writing delivered to such Offeree (the “Offer”), which Offer by its terms shall remain open and irrevocable for a period of thirty (30) days from receipt thereof. The Offer shall disclose the identity of the proposed transfereefraction, the Offered numerator of which is the number of Equity Securities proposed to be sold, held by such Shareholder and the terms and conditions (including pricedenominator of which is the aggregate number of Equity Securities held by all the Shareholder(s) of who elected to purchase the proposed saleOver-Allotment Securities.

Preemptive Right. The (a) Prior to the Company or any of its Subsidiaries entering into discussions or negotiations with any third party regarding any potential issuance by the Company or any of its Subsidiaries of any debt security or any indebtedness described in clause (2) of this Section 2.7(a) (any such potential issuance, a “Potential Debt Issuance”), the Company shall inform the Named Stockholders of its intention to enter into such negotiations, and the Named Stockholders shall then inform the Company if such Named Stockholder does not issuedesire to have the provisions of this Section 2.7 apply with respect to such Potential Debt Issuance. Notwithstanding anything in this Agreement to the contrary, sell or exchange, agree or obligate itself to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, any (i) shares if any Named Stockholder informs the Company that it does not wish to have the provisions of Common Stockthis Section 2.7 apply to such Named Stockholder with respect to such Potential Debt Issuance, then this Section 2.7 shall not apply to such Named Stockholder with respect to such Potential Debt Issuance and (ii) if any other equity security Named Stockholder is silent or affirms its desire to have the provisions of this Section 2.7 apply with respect to such Potential Debt Issuance, it shall be under no obligation to purchase any of the CompanyPreemptive Securities unless and until such Named Stockholder has exercised its preemptive rights pursuant to Section 2.7(b) below. Subject to the preceding two sentences, prior to any issuance by the Company or any of its Subsidiaries of (1) any securities (including any shares of Capital Stock or debt securities) or (2) any indebtedness in respect of borrowed money, including without limitationindebtedness evidenced by bonds, Preferred Stocknotes or similar instruments or by letters of credit or bankers acceptances (but, for the avoidance of doubt, not including trade payables) or any guarantees (iii) any debt security of the Company (in each case, other than debt with no equity feature) including without limitationExempt Issuances), any debt security which by its terms is convertible into or exchangeable for any equity security of the Company, (iv) any security of the Company that is a combination of debt and equity, or (v) any option, warrant or other right to subscribe for, purchase or otherwise acquire any such equity security or any debt security of the Company specified in (i)-(iv) above, unless in each case the Company shall have first offered to sell give written notice (a portion of such securities (the “Offered SecuritiesPreemptive Notice”) thereof to each Investor who holds at least 5% of the then outstanding shares of Preferred Stock (each an “Offeree” and collectively, the “Offerees”) as follows: each Offeree shall have the right (but not an obligation) to purchase (x) up to that portion of the Offered Securities as the number of shares of capital stock then held by such Offeree (assuming for such purposes exercise, conversion and exchange of all outstanding options, warrants or convertible securities of the Company exercisable, convertible and/or exchangeable into shares of Common Stock) bears to the total number of the outstanding shares of capital stock of the Company (assuming for such purposes exercise, conversion and exchange of all outstanding options, warrants or convertible securities of the Company exercisable, convertible and/or exchangeable into shares of Common Stock) (the “Basic Amount”), and (y) such additional portion of the Offered Securities as such Offeree shall indicate it will purchase should the other Offerees subscribe for less than their respective Basic Amounts (the “Undersubscription Amount”), at a price and on such other terms as shall have been specified by the Company in writing delivered to such Offeree (the “Offer”), which Offer by its terms shall remain open and irrevocable for a period of thirty (30) days from receipt thereofNamed Stockholder. The Offer shall disclose the identity of the proposed transferee, the Offered Securities proposed to be sold, and the terms and conditions (including price) of the proposed sale.Preemptive Notice shall:

Preemptive Right. The In the event that, at any time or from time to time, the Company proposes to issue or sell newly issued shares of Common Stock (which term shall not issueinclude, sell for purposes of this Section 8.11, shares of any class or exchange, agree or obligate itself to issue, sell or exchangeseries of common stock of the Company, or reserve securities convertible, exchangeable or set aside for issuance, sale exercisable into Common Stock or exchange, any (i) shares class or series of Common Stock, or any options, warrants or other rights to acquire shares of Common Stock or any class or series of Common Stock (ii) any other equity security "New Securities")), the Company shall first notify each Purchaser of all relevant terms and conditions of the sale of the New Securities and offer to each Purchaser, and each Purchaser will have the right to purchase from the Company, upon the same terms and conditions as the Company proposes to sell the New Securities, such portion of the New Securities so as to maintain the aggregate proportionate ownership of the capital stock of the Company, including without limitationon a fully diluted basis, Preferred Stockheld by each Purchaser immediately prior to the issuance of the New Securities. Each Purchaser shall have 15 Business Days following receipt of any notice to accept or reject such offer. In the event that after the giving of such notice by the Company the Company changes the terms or conditions on which it proposes to issue or sell such New Securities, the Company shall be obligated to notify the Purchasers of such changed terms and conditions and the Purchaser's rights under this Section 8.11 will again apply. The rights of the Purchaser under this Section 8.11 shall not apply to: (i) New Securities issued upon the exercise or conversion of any previously outstanding securities; (ii) New Securities issued in connection with any merger, consolidation, combination, purchase of all or substantially all of the assets of another Person or other reorganization; (iii) New Securities issued in connection with any debt security stock split, stock dividend or recapitalization of the Company; (iv) New Securities issued to employees, consultants, officers or directors of the Company (other than debt with no equity feature) including without limitationpursuant to any stock option, any debt security which by its terms is convertible into stock purchase or exchangeable stock bonus plan, agreement or arrangement for any equity security the primary purpose of the Companysoliciting or retaining such employees', (iv) any security of the Company that is a combination of debt consultants|, officers| or directors| services; and equity, or (v) any option, warrant New Securities issued to providers of debt or other right lease financing to subscribe for, purchase or otherwise acquire any such equity security or any debt security of the Company specified in (i)-(iv) above, unless in each case the Company shall have first offered to sell a portion of such securities (the “Offered Securities”) to each Investor who holds at least 5% of the then outstanding shares of Preferred Stock (each an “Offeree” and collectively, the “Offerees”) as follows: each Offeree shall have the right (but not an obligation) to purchase (x) up to that portion of the Offered Securities as the number of shares of capital stock then held by such Offeree (assuming for such purposes exercise, conversion and exchange of all outstanding options, warrants or convertible securities of the Company exercisable, convertible and/or exchangeable into shares of Common Stock) bears to the total number of the outstanding shares of capital stock of the Company (assuming for such purposes exercise, conversion and exchange of all outstanding options, warrants or convertible securities of the Company exercisable, convertible and/or exchangeable into shares of Common Stock) (the “Basic Amount”), and (y) such additional portion of the Offered Securities as such Offeree shall indicate it will purchase should the other Offerees subscribe for less than their respective Basic Amounts (the “Undersubscription Amount”), at a price and on such other terms as shall have been specified by the Company in writing delivered to connection with the provision of such Offeree (the “Offer”), which Offer by its terms shall remain open and irrevocable for a period of thirty (30) days from receipt thereof. The Offer shall disclose the identity of the proposed transferee, the Offered Securities proposed to be sold, and the terms and conditions (including price) of the proposed salefinancing.