Common use of Additional Offerings; Generally Clause in Contracts

Additional Offerings; Generally. If at any time after the date hereof, the Company proposes to issue equity securities of any kind (the term “equity securities” shall include for these purposes any warrants, options or other rights to acquire equity securities and debt securities convertible into equity securities, but shall not include the issuance of any securities (i) to the public in a firm commitment underwriting pursuant to a registration statement in compliance with the Securities Act (a “Registration Statement”), (ii) pursuant to the acquisition of another Person by the Company or any Subsidiary thereof (as consideration for the acquisition and not for the purpose of financing an acquisition), whether by purchase of stock, merger, consolidation, purchase of all or substantially all of the assets of such Person or otherwise, (iii) pursuant to the 2004 Stock Option Plan or another employee stock option plan, stock bonus plan, stock purchase plan or other management equity program approved by the Board of Directors of the Company (the “Board”), or (iv) in the form of warrants issued to lessors of property and/or equipment or to financial institutions or related entities in connection with commercial credit or financing or other similar arrangements which are approved by the Board), then, as to each Institutional Investor who owns at least twenty percent (20%) of the aggregate number of shares of Common Stock owned by such Institutional Investor on the Closing Date, measured as of the date of the proposed issuance (each such Institutional Investor who is referred to above is hereinafter referred to, for purposes of this Section 1, as a “Participating Stockholder” and collectively, such Persons are referred to in this Section 1 as the “Participating Stockholders”), the Company shall:

Additional Offerings; Generally. If at any time after the date hereof, the Company or any direct or indirect subsidiary of the Company (each a "Subsidiary") proposes to issue equity securities of any kind Equity Securities (the term “equity securities” shall include for these purposes any warrants, options or other rights to acquire equity securities and debt securities convertible into equity securities, but shall not include than the issuance of any securities Equity Securities (i) pursuant to the public in a firm commitment underwriting pursuant to a registration statement in compliance with filed under the Securities Act (a “Registration Statement”)Act, (ii) pursuant to the acquisition of another Person by the Company or any Subsidiary thereof (as consideration for the acquisition and not for the purpose of financing an acquisition), whether by purchase of stock, merger, consolidation, purchase of all or substantially all of the assets of such Person or otherwise, (iii) pursuant to the 2004 Stock Option Plan or another an employee stock option plan, stock bonus plan, stock purchase plan or other management equity program program, including without limitation the Restricted Stock Plan, approved by a majority of the members of the Board of Directors (iv) by a Subsidiary to the Company or any other Subsidiary of the Company (the “Board”), or (ivv) in the form of warrants to purchase Common Stock issued to lessors of property and/or equipment or to financial institutions or related entities in connection with commercial credit or debt financing or other similar arrangements which are approved by a majority of the members of the Board), then, as to each Institutional Investor who owns Owns at least twenty percent (20%) 5% of the aggregate number of shares of Common Stock owned by such Institutional Investor on the Closing Date, measured as of the date of the proposed issuance (each such Institutional Investor who is referred to above Person is hereinafter referred to, for purposes of this Section 1, as a “"Participating Stockholder” Investor" and collectively, such Persons are referred to in this Section 1 as the “"Participating Stockholders”Investors"), the Company shall: (a) give written notice (the "Subscription Right Notice") setting forth in reasonable detail (i) the designation and all of the terms and provisions of the Equity Securities proposed to be issued (the "Proposed Securities"), including, where applicable, the voting powers, preferences and relative participating, optional or other special rights, and the qualification, limitations or restrictions thereof and interest rate and maturity; (ii) the price and other terms of the proposed sale of such Proposed Securities; and (iii) the amount of such Proposed Securities proposed to be issued; and (b) offer to issue to each Participating Investor that number of Proposed Securities equal to the number of Proposed Securities multiplied by such Participating Investor's Percentage Interest. For purposes hereof, "Percentage Interest" shall mean, in respect of any Participating Investor, the percentage determined by dividing (x) the number of shares of Common Stock Owned by such Participating Investor, by (y) the total number of shares of Common Stock Owned by the Investors.

Additional Offerings; Generally. If at any time after the date hereof, the Company or any direct or indirect subsidiary of the Company (each a “Subsidiary”) proposes to issue equity securities of any kind Equity Securities (the term “equity securities” shall include for these purposes any warrants, options or other rights to acquire equity securities and debt securities convertible into equity securities, but shall not include than the issuance of any securities Equity Securities (i) to the public in a firm commitment underwriting pursuant to a registration statement in compliance with filed under the Securities Act (a “Registration Statement”)Act, (ii) pursuant to the acquisition of another Person by the Company or any Subsidiary thereof (as consideration for the acquisition and not for the purpose of financing an acquisition), whether by purchase of stock, merger, consolidation, purchase of all or substantially all of the assets of such Person or otherwise, (iii) pursuant to the 2004 Stock Option Plan or another an employee stock option plan, stock bonus plan, stock purchase plan or other management equity program program, including without limitation the Restricted Stock Plan, approved by a majority of the members of the Board of Directors (iv) by a Subsidiary to the Company or any other Subsidiary of the Company (the “Board”), or (ivv) in the form of warrants to purchase Common Stock issued to lessors of property and/or equipment or to financial institutions or related entities in connection with commercial credit or debt financing or other similar arrangements which are approved by a majority of the members of the Board), then, as to each Institutional Investor who owns Owns at least twenty percent (20%) 5% of the aggregate number of shares of Common Stock owned by such Institutional Investor on the Closing Date, measured as of the date of the proposed issuance (each such Institutional Investor who is referred to above Person is hereinafter referred to, for purposes of this Section 1, as a “Participating StockholderInvestor” and collectively, such Persons are referred to in this Section 1 as the “Participating StockholdersInvestors”), the Company shall: (a) give written notice (the “Subscription Right Notice”) setting forth in reasonable detail (i) the designation and all of the terms and provisions of the Equity Securities proposed to be issued (the “Proposed Securities”), including, where applicable, the voting powers, preferences and relative participating, optional or other special rights, and the qualification, limitations or restrictions thereof and interest rate and maturity; (ii) the price and other terms of the proposed sale of such Proposed Securities; and (iii) the amount of such Proposed Securities proposed to be issued; and (b) offer to issue to each Participating Investor that number of Proposed Securities equal to the number of Proposed Securities multiplied by such Participating Investor’s Percentage Interest. For purposes hereof, “Percentage Interest” shall mean, in respect of any Participating Investor, the percentage determined by dividing (x) the number of shares of Common Stock Owned by such Participating Investor, by (y) the total number of shares of Common Stock Owned by the Investors.