Common use of Additional Equity Capital; Right of First Offer Clause in Contracts

Additional Equity Capital; Right of First Offer. The Company agrees that, during the period beginning on the date hereof and ending on that date on which the Purchasers no longer own twenty percent (20%) or more of the Preferred Shares purchased at the First Closing (the "LOCK-UP PERIOD"), it will not, without the prior written consent of the holders of a majority of the Preferred Shares, contract with any other party to obtain additional financing in which any equity or equity-linked securities are issued ("FUTURE OFFERINGS"); provided, however, the limitation contained in this sentence shall not apply to any transaction if at the time of such transaction the aggregate number of Conversion Shares issuable on conversion of Preferred Shares is less than twenty percent (20%) of the average daily trading volume for shares of Common Stock on the principal exchange or market on which such shares are traded for the ten (10) trading days immediately preceding the date of such determination. The Company agrees from the date of this Agreement until the end of the Lock-Up Period it will not conduct any Future Offering unless it shall have first delivered to each Purchaser at least ten (10) business days prior to the closing of such Future Offering, written notice describing the proposed Future Offering, including the terms and conditions thereof, and providing each Purchaser and its affiliates, an option during the ten (10) business day period following delivery of such notice to purchase up to the Applicable Portion (as defined below) of the securities being offered in the Future Offering on the same terms as contemplated by such Future Offering (the limitations referred to in this and the immediately preceding sentence are collectively referred to as the "CAPITAL RAISING LIMITATIONS"). The Capital Raising Limitations shall not apply to any transaction involving issuances of securities as consideration in a merger, consolidation or acquisition of assets, or in connection with any strategic partnership or joint venture (the primary purpose of which is not to raise equity capital), or as consideration for the acquisition of a business, product or license by the Company, provided such shares are not covered by an effective registration statement within one year of the date of consummation thereof. The Capital Raising Limitations also shall not apply to (i) the issuance of securities pursuant to an underwritten public offering, (ii) the issuance of securities upon exercise or conversion of the Company's options, warrants or other convertible securities outstanding as of the date hereof, or (iii) the grant of additional options or warrants, or the issuance of additional securities, under any Company stock option, bonus plan or restricted stock plan for the benefit of the Company's employees, consultants or directors pursuant to plans approved by a majority of the Board of Directors who are not officers of the Company or a majority of the Board's compensation committee, if any. The "APPLICABLE PORTION" shall mean a fraction, the numerator of which is the number of Units purchased by such Purchaser hereunder and the denominator of which is the total number of Units purchased by all of the Purchasers hereunder.

Additional Equity Capital; Right of First Offer. The Subject to the ----------------------------------------------- exceptions described below, the Company agrees that, during the period beginning on the date hereof and ending on that date on which the Purchasers no longer own twenty percent (20%) or more of the Preferred Shares purchased at the First Closing (the "LOCK-UP PERIOD"), it will not, without the prior written consent of the holders of a majority majority-in-interest of the Preferred SharesBuyers, negotiate or contract with any other party to obtain additional equity financing (including debt financing with an equity component, during the period (the "Lock-up Period") beginning on the Closing Date with respect to the First Closing and ending one hundred eighty- five (185) days from the date the Registration Statement (as defined in the Registration Rights Agreement) is declared effective (subject to extension for any days in which any equity or equity-linked securities are issued ("FUTURE OFFERINGS"); provided, however, the limitation contained in this sentence shall not apply to any transaction if at the time sales of such transaction the aggregate number of Conversion Shares issuable on conversion of Preferred Shares is less than twenty percent (20%) all of the average daily trading volume for shares of Common Stock on Registrable Securities (as defined in the principal exchange or market Registration Rights Agreement) cannot be made pursuant to the Registration Statement (as defined in the Registration Rights Agreement) occurring after the date on which such shares are traded for Registration Statement is first declared effective by the ten SEC). In addition, subject to the exceptions described below, the Company will not conduct any equity financing (10including debt with an equity component) trading ("Future Offerings") during the period beginning on the Closing Date and ending one hundred eighty (180) days immediately preceding the date of such determination. The Company agrees from the date of this Agreement until after the end of the Lock-Up Period it will (subject to extension for any days in which sales of all of the Registrable Securities cannot conduct any Future Offering be made pursuant to the Registration Statement occurring after the date on which such Registration Statement is first declared effective by the SEC) unless it shall have first delivered to each Purchaser at least ten (10) business days prior to the closing of such Future Offering, Buyer written notice describing the proposed Future Offering, including the terms and conditions thereofthereof and proposed definitive documentation to be entered into in connection therewith, and providing each Purchaser and its affiliates, Buyer an option during the ten (10) business day Trading Day (as defined in the Certificate of Designation) period following delivery of such notice to purchase up submit a term sheet to the Applicable Portion Company specifying the terms (as defined belowthe "Proposed Terms") on which it would purchase its pro rata share (based on the ratio that the number of Preferred Shares purchased by it hereunder bears to the aggregate number of Preferred Shares purchased hereunder) of the dollar amount of securities being offered in the Future Offering on the same terms as contemplated by such Future Offering (the limitations referred to in this sentence and the immediately preceding sentence are collectively referred to as the "CAPITAL RAISING LIMITATIONSCapital Raising Limitations"). In the event the Proposed Terms are equivalent or better than the terms described in the Future Offering, the Company will be required to commence the offering with the Buyers on the Proposed Terms. In the event no Buyer responds within the ten (10) Trading Day period or the Proposed Terms are not as favorable to the Company as those described in the Future Offering, the Company may, within sixty (60) days of the end of such ten (10) Trading Day period, complete the Future Offering with a thirty party. In the event the terms and conditions of a proposed Future Offering are amended in any respect after delivery of the notice to the Buyers concerning the proposed Future Offering, the Company shall deliver a new notice to each Buyer describing the amended terms and conditions of the proposed Future Offering (the "Amended Future Offering") and each Buyer thereafter shall have an option during the ten (10) Trading Day period following delivery of such new notice to submit a new term sheet to the Company specifying the new Proposed Terms (the "New Proposed Terms") on which it would purchase its pro rata share of the securities being offered on the same terms as contemplated by such proposed Future Offering, as amended. In the event the New Proposed Terms are equivalent or better than the terms described in the Amended Future Offering, the Company will be required to commence the offering with the Buyers on the New Proposed Terms. The foregoing two sentences shall apply to successive amendments to the terms and conditions of any proposed Future Offering. The Capital Raising Limitations shall not apply to any transaction involving (i) issuances of securities in a firm commitment underwritten public offering (excluding a continuous offering pursuant to Rule 415 under the 0000 Xxx) or (ii) issuances of securities as consideration in for a merger, consolidation or acquisition purchase of assets, or in connection with any strategic partnership or joint venture (the primary purpose of which is not to raise equity capital), or as consideration for in connection with the disposition or acquisition of a business, product or license by the Company, provided such shares are not covered by an effective registration statement within one year of the date of consummation thereof. The Capital Raising Limitations also shall not apply to (i) the issuance of securities pursuant to an underwritten public offering, (ii) the issuance of securities upon exercise or of conversion of the Company's options, warrants or other convertible securities outstanding as of the date hereof, hereof or (iii) to the grant of additional options or warrants, or the issuance of additional securities, under any Company stock option, bonus plan option or restricted stock plan for approved by the benefit stockholders of the Company's employees, consultants or directors pursuant to plans approved by a majority of the Board of Directors who are not officers of the Company or a majority of the Board's compensation committee, if any. The "APPLICABLE PORTION" shall mean a fraction, the numerator of which is the number of Units purchased by such Purchaser hereunder and the denominator of which is the total number of Units purchased by all of the Purchasers hereunder.

Additional Equity Capital; Right of First Offer. The Company agrees that, will not conduct any equity financing (including debt with an equity component) during the period beginning on the date hereof and ending on that two hundred seventy (270) calendar days from the date on which the Purchasers no longer own twenty percent (20%) or more of the Preferred Shares purchased at the First Closing hereof (the "LOCK-UP PERIODOffer Period"), it will not, without the prior written consent of the holders of a majority of the Preferred Shares, contract with any other party to obtain additional financing in which any equity or equity-linked securities are issued ("FUTURE OFFERINGS"); provided, however, the limitation contained in this sentence shall not apply to any transaction if at the time of such transaction the aggregate number of Conversion Shares issuable on conversion of Preferred Shares is less than twenty percent (20%) of the average daily trading volume for shares of Common Stock on the principal exchange or market on which such shares are traded for the ten (10) trading days immediately preceding the date of such determination. The Company agrees from the date of this Agreement until the end of the Lock-Up Period it will not conduct any Future Offering unless it shall have first delivered to each Purchaser conducted good faith negotiations with the Buyer for at least ten twenty-one (1021) business days prior to sell to the closing Buyer securities on such terms and in such amounts that it intends to otherwise offer to a third party (the "Offered Securities"). The Company shall have no obligation to sell the Offered Securities to the Buyer except pursuant to definitive purchase documentation mutually acceptable to the Company and the Buyer in their sole discretion. If the Company and the Buyer fail to reach an agreement with respect to the sale of all of the Offered Securities within such twenty-one (21) day period, the Company shall have forty-five (45) days from the expiration of such Future Offeringtwenty-one (21) day period to sell or enter into an agreement (pursuant to which the sale of the remaining securities covered thereby shall be closed, written notice describing if at all, within seventy-five (75) days (or up to 105 days with the proposed Future Offeringconsent of the Buyer, which consent will not be unreasonably withheld) from the date of said agreement) to sell an aggregate amount of securities not to exceed the amount of Offered Securities offered to the Buyer at a price and upon general terms no more favorable in any material respect to the purchaser(s) of such securities than those last offered to the Buyer by the Company. If the Company has not so sold such securities or entered into an agreement to sell such securities within said forty-five (45) day period (or sold and issued such remaining securities in accordance with the foregoing within seventy-five (75) days from the date of said agreement), the Company shall not thereafter conduct any equity financing (including the terms and conditions thereof, and providing each Purchaser and its affiliates, debt with an option equity component) during the ten (10) business day period following delivery of such notice to purchase up to Offer Period without first conducting good faith negotiations with the Applicable Portion (Buyer as defined below) of the securities being offered in the Future Offering on the same terms as contemplated by such Future Offering provided above (the transactions and limitations referred to in this and the immediately preceding sentence sentences in this Section 4(e) are each collectively referred to as the "CAPITAL RAISING LIMITATIONSCapital Raising Transactions" and "Capital Raising Limitations," respectively). The Capital Raising Transactions and Limitations shall not apply to any transaction involving the Company's commercial banking or vendor financing arrangements or issuances of securities as consideration in connection with a merger, consolidation or sale or acquisition of assets, or in connection with any strategic partnership or joint venture (the primary purpose of which is not to raise equity capital), or as consideration for in connection with the disposition or acquisition of a business, product or license by the CompanyCompany or exercise of options by current or former employees, provided such shares are not covered by an effective registration statement within one year of the date of consummation thereofconsultants, franchisees, customers or directors. The Capital Raising Transactions and Limitations also shall not apply to (i) the issuance of securities pursuant to an in underwritten public offering, (ii) offerings or the issuance of securities or the incurrence of indebtedness by a subsidiary of the Company or upon exercise or conversion of the Company's options, warrants or other convertible securities outstanding as of the date hereof, hereof or (iii) to the grant of additional options options, warrants or warrantsother securities to employees, or the issuance of additional securitiesformer employees, consultants, franchisees, customers, directors and affiliates under any Company stock option, bonus plan option or restricted stock plan for the benefit of the Company's employees, consultants or directors pursuant to plans approved by a majority of the Board of Directors who are not officers of the Company or a majority of the Board's compensation committee, if any. The "APPLICABLE PORTION" shall mean a fraction, the numerator of which is the number of Units purchased by such Purchaser hereunder and the denominator of which is the total number of Units purchased by all of the Purchasers hereunderplan.

Additional Equity Capital; Right of First Offer. The Subject to the exceptions described below, the Company agrees that, during the period beginning on the date hereof and ending on that date on which the Purchasers no longer own twenty percent (20%) or more of the Preferred Shares purchased at the First Closing (the "LOCK-UP PERIOD"), it will not, without the prior written consent of the holders of a majority majority-in-interest of the Preferred SharesBuyers, negotiate or contract with any other party to obtain additional financing in which any equity or equity-linked securities are issued equivalent financing (including debt financing with an equity component) during the period (the "LOCK-UP PERIOD") beginning on the Closing Date in respect of the First Closing and ending on the date which is one hundred twenty (120) days from the date the Registration Statement (as defined in the Registration Rights Agreement) is declared effective (plus any days in which sales cannot be made thereunder). In addition, subject to the exceptions described below, if the Company wishes to obtain equity or equity-equivalent financing (including debt financing with an equity component) ("FUTURE OFFERINGSFINANCINGS"); provided, however, ) during the limitation contained period beginning on the Closing Date in this sentence shall not apply to any transaction if at the time of such transaction the aggregate number of Conversion Shares issuable on conversion of Preferred Shares is less than twenty percent (20%) respect of the average daily trading volume for shares of Common Stock on the principal exchange or market on which such shares are traded for the ten First Closing and ending twelve (1012) trading days immediately preceding months following the date of such determination. The Company agrees from the date of this Agreement until the end of the Lock-Up Period it will Registration Statement is declared effective (plus any days in which sales cannot conduct any Future Offering unless be made thereunder), it shall have first delivered deliver to each Purchaser Buyer, at least ten fifteen (1015) business days prior to the closing of offering such Future OfferingFinancing to any other Person (as defined in Article IV.B of the Certificate of Designation), written notice describing the proposed Future OfferingFinancing, including the terms and conditions thereof, and providing each Purchaser the Buyers shall have the exclusive right to negotiate, and its affiliatesthe Company shall negotiate in good faith with the Buyers, an option during the ten (10) business day period following delivery of such notice notice, to purchase up provide such Future Financing on terms acceptable to the Applicable Portion (as defined below) of Company; provided, however, that if the securities being offered in Company and the Future Offering Buyers are unable to agree on such terms during such period, the same terms as contemplated by Company shall have the right to negotiate and contract with any other Person to obtain such Future Offering Financing, provided that the terms of such Future Financing are no less favorable to the Company than those terms proposed in such written notice (the limitations referred to in this sentence and the immediately preceding sentence are collectively referred to as the "CAPITAL RAISING LIMITATIONSLIMITATIONS "). In the event the terms and conditions of a proposed Future Financing are amended in any material respect on terms which are less favorable to the Company after delivery of the notice to the Buyers concerning the proposed Future Financing, the Company shall deliver a new notice to each Buyer describing the amended terms and conditions of the proposed Future Financing and each Buyer thereafter shall have the exclusive right during the ten (10) day period following delivery of such new notice to provide such Future Financing on the same terms as contemplated by such proposed Future Financing, as amended. The foregoing sentence shall apply to successive amendments to the terms and conditions of any proposed Future Financing. The Capital Raising Limitations shall not apply to any transaction involving involving: (i) issuances of securities in a firm commitment underwritten public offering (excluding a continuous offering pursuant to Rule 415 under the 0000 Xxx); or (ii) issuances of securities as consideration in for a merger, consolidation or acquisition purchase of assets, or in connection with any strategic partnership or joint venture (the primary purpose of which is not to raise equity capital), or as consideration for in connection with the disposition or acquisition of a business, product product, asset or license by the Company, provided such shares are not covered by an effective registration statement within one year of the date of consummation thereof. The Capital Raising Limitations also shall not apply to (i) the issuance of securities pursuant to an underwritten public offering, (ii) the issuance of securities upon exercise or conversion of the Company's options, warrants or other convertible securities outstanding as of the date hereof, hereof or (iii) to the grant of additional options or warrants, or the issuance of additional securities, under any Company stock option, bonus plan or restricted stock or other employee benefit plan for approved by the benefit stockholders of the Company's employees, consultants or directors pursuant to plans approved by a majority of the Board of Directors who are not officers of the Company or a majority of the Board's compensation committee, if any. The "APPLICABLE PORTION" shall mean a fraction, the numerator of which is the number of Units purchased by such Purchaser hereunder and the denominator of which is the total number of Units purchased by all of the Purchasers hereunder.

Additional Equity Capital; Right of First Offer. The Subject to --------------------------------------------------- the exceptions described below, the Company agrees that, that during the period (the "LOCK-UP PERIOD") beginning on the date hereof and ending on the date that is 180 days after the effective date on which the Purchasers no longer own twenty percent (20%) or more of the Preferred Shares purchased at Registration Statement (as defined in the First Closing (Registration Rights Agreement) required pursuant to Section 2(a) of the "LOCK-UP PERIOD")Registration Rights Agreement, it the Company will not, without the prior written consent of the holders of a majority of the Preferred SharesBuyer, contract with any other party to obtain additional financing in which any equity or equity-linked securities are issued (including any debt financing with an equity component) ("FUTURE OFFERINGS"); provided, however. In addition, the limitation contained in this sentence shall Company will not apply to conduct any transaction if at Future Offering during the time of such transaction 180-day period immediately following the aggregate number of Conversion Shares issuable on conversion of Preferred Shares is less than twenty percent (20%) of the average daily trading volume for shares of Common Stock on the principal exchange or market on which such shares are traded for the ten (10) trading days immediately preceding the date of such determination. The Company agrees from the date of this Agreement until the end expiration of the Lock-Up Period it will not conduct any Future Offering unless it shall have first delivered to each Purchaser the Buyer, at least ten (10) business days prior to the closing of such Future Offering, written notice describing the proposed Future Offering, including the terms and conditions thereofthereof and proposed definitive documentation to be entered into in connection therewith, and providing each Purchaser the Buyer and its affiliates, affiliates an option during the ten (10) business day period following delivery of such notice to purchase up to the Applicable Portion (as defined below) all of the securities being offered in the Future Offering on the same terms as contemplated by such Future Offering (the limitations referred to in this and the immediately preceding sentence are collectively referred to as the "CAPITAL RAISING LIMITATIONS"). In the event the terms and conditions of a proposed Future Offering are amended in any respect after delivery of the notice to the Buyer concerning the proposed Future Offering, the Company shall deliver a new notice to the Buyer describing the amended terms and conditions of the proposed Future Offering and the Buyer thereafter shall have an option during the ten (10) business day period following delivery of such new notice to purchase the securities being offered on the same terms as contemplated by such proposed Future Offering, as amended. The foregoing sentence shall apply to successive amendments to the terms and conditions of any proposed Future OfferingThe Capital Raising Limitations shall not apply to any transaction involving issuances of securities as consideration in a merger, consolidation or acquisition of assets, or in connection with any strategic partnership or joint venture (the primary purpose of which is not to raise equity capital), or as consideration for the acquisition or disposition of a business, product or license by the Company, provided such shares are not covered by an effective registration statement within one year of the date of consummation thereof. The Capital Raising Limitations Limitation also shall not apply to (i) the issuance of securities pursuant to an a firm commitment underwritten public offeringoffering (other than a continuous offering pursuant to Rule 415 of the SEC), (ii) the issuance of securities upon exercise or conversion of the Company's ' options, warrants or other convertible securities outstanding as of the date hereof, hereof or (iii) the grant of additional options or warrants, or the issuance of additional securities, under any Company stock option, bonus plan option or restricted stock plan for approved by the benefit stockholders of the Company's employees, consultants or directors pursuant to plans approved by a majority of the Board of Directors who are not officers of the Company or a majority of the Board's compensation committee, if any. The "APPLICABLE PORTION" shall mean a fraction, the numerator of which is the number of Units purchased by such Purchaser hereunder and the denominator of which is the total number of Units purchased by all of the Purchasers hereunder.

Additional Equity Capital; Right of First Offer. The Subject to the exceptions described below, the Company agrees that, during the period beginning on the date hereof and ending on that date on which the Purchasers no longer own twenty percent (20%) or more of the Preferred Shares purchased at the First Closing (the "LOCK-UP PERIOD"), it will not, without the prior written consent of the holders of a majority majority-in-interest of the Preferred SharesBuyers, negotiate or contract with any other party to obtain additional financing in which any equity or equity-linked securities are issued equivalent financing (including debt financing with an equity component) during the period (the "FUTURE OFFERINGSLock-up Period"); provided, however, the limitation contained in this sentence shall not apply to any transaction if at the time of such transaction the aggregate number of Conversion Shares issuable on conversion of Preferred Shares is less than twenty percent (20%) of the average daily trading volume for shares of Common Stock beginning on the principal exchange or market Closing Date and ending on which such shares are traded for the ten (10) trading days immediately preceding the date of such determination. The Company agrees which is one hundred twenty (120) days from the date of this Agreement until the end of Registration Statement (as defined in the LockRegistration Rights Agreement) is declared effective (plus any days in which sales cannot be made thereunder). In addition, subject to the exceptions described below, if the Company wishes to obtain equity or equity-Up Period it will equivalent financing (including debt financing with an equity component) ("Future Financings") during the period beginning on the Closing Date and ending twelve (12) months following the date the Registration Statement is declared effective (plus any days in which sales cannot conduct any Future Offering unless be made thereunder), it shall have first delivered deliver to each Purchaser Buyer, at least ten fifteen (1015) business days prior to the closing of offering such Future OfferingFinancing to any other Person (as defined in Article IV.B of the Certificate of Designation), written notice describing the proposed Future OfferingFinancing, including the terms and conditions thereof, and providing each Purchaser the Buyers shall have the exclusive right to negotiate, and its affiliatesthe Company shall negotiate in good faith with the Buyers, an option during the ten (10) business day period following delivery of such notice notice, to purchase up provide such Future Financing on terms acceptable to the Applicable Portion (as defined below) of Company; provided, however, that if the securities being offered in Company and the Future Offering Buyers are unable to agree on such terms during such period, the same terms as contemplated by Company shall have the right to negotiate and contract with any other Person to obtain such Future Offering Financing, provided that the terms of such Future Financing are no less favorable to the Company than those terms proposed in such written notice (the limitations referred to in this sentence and the immediately preceding sentence are collectively referred to as the "CAPITAL RAISING LIMITATIONSCapital Raising Limitations"). In the event the terms and conditions of a proposed Future Financing are amended in any material respect on terms which are less favorable to the Company after delivery of the notice to the Buyers concerning the proposed Future Financing, the Company shall deliver a new notice to each Buyer describing the amended terms and conditions of the proposed Future Financing and each Buyer thereafter shall have the exclusive right during the ten (10) day period following delivery of such new notice to provide such Future Financing on the same terms as contemplated by such proposed Future Financing, as amended. The foregoing sentence shall apply to successive amendments to the terms and conditions of any proposed Future Financing. The Capital Raising Limitations shall not apply to any transaction involving involving: (i) issuances of securities in a firm commitment underwritten public offering (excluding a continuous offering pursuant to Rule 415 under the 0000 Xxx); (ii) issuances of securities as consideration in for a merger, consolidation or acquisition purchase of assets, or in connection with any strategic partnership or joint venture (the primary purpose of which is not to raise equity capital), or as consideration for in connection with the disposition or acquisition of a business, product product, asset or license by the Company; or (iii) the sale by the Company of up to Fifteen Million Dollars ($15,000,000) of Common Stock to entities controlled by or affiliated with [*****] (collectively, the "[*****] Entities"), provided that such shares are sale referenced in this clause (iii) is consummated in a private placement closing simultaneous with or within thirty (30) days after the Closing at a price per share of not covered by an effective registration statement within one year less than eighty percent (80%) of the market price of the Common Stock on the date of consummation thereofissuance, provided, further, that the Company shall not be permitted to file a registration statement with respect to the resale of such Common Stock by the purchaser referenced in this clause (iii) thereof for at least one hundred eighty (180) days after the date on which the Registration Statement required to be filed pursuant to the Registration Rights Agreement has been declared effective (plus any days in which sales cannot be made thereunder). The Capital Raising Limitations also shall not apply to (i) the issuance of securities pursuant to an underwritten public offering, (ii) the issuance of securities upon exercise or conversion of the Company's options, warrants or other convertible securities outstanding as of the date hereof, hereof or (iii) to the grant of additional options or warrants, or the issuance of additional securities, under any Company stock option, bonus plan or restricted stock or other employee benefit plan for approved by the benefit stockholders of the Company's employees. Notwithstanding anything to the contrary in the Section 4(e), consultants or directors pursuant the [*****] Entities shall have the right to plans approved participate in the Future Financing, on a pro rata basis based upon the amount of securities purchased by a majority the [*****] Entities in the transaction referenced in clause (iii) above, provided that, in the event that the [***] Entities choose not to exercise their right to participate in the Future Financing, then the Buyers shall have the right to provide the remaining portion of the Board of Directors who are Future Financing not officers of provided by the Company or a majority of the Board's compensation committee, if any. The "APPLICABLE PORTION" shall mean a fraction, the numerator of which is the number of Units purchased by such Purchaser hereunder and the denominator of which is the total number of Units purchased by all of the Purchasers hereunder[*****] Entities.