Common use of Certain Preemptive Rights Clause in Contracts

Certain Preemptive Rights. (a) If the Company proposes to issue any shares of Common Stock to BRS or its Affiliates, other than in a transaction described in Section 3.4(d) below, the Company shall first offer in writing to sell to each Founding Investor such Investor's pro rata share of the proposed issue of Common Stock, at the same price and on the same terms at which the Company proposes to sell such issue to BRS or its Affiliates. For purposes hereof, a Founding Investor's "pro rata share" of an issue of Common Stock shall be that number which is equal to the product of (i) the number of shares proposed to be issued to BRS or its Affiliates, times (ii) a fraction, the numerator of which is the number of outstanding shares of Common Stock held by such Founding Investor, and the denominator of which is the aggregate number of outstanding shares of Common Stock calculated on a fully diluted basis. (b) The Company's offer shall describe the quantity, the price and payment terms of the Common Stock proposed to be issued to BRS or its Affiliates. Each Founding Investor shall have 30 days from receipt of such offer to accept the offer in writing, which acceptance may be as to all or any part of such Founding Investor's pro rata share of such issue. Sale of the portion of the Common Stock subscribed for under this Section 3.4(b) shall be held on a date acceptable to the Company and those persons who have exercised their preemptive rights, but in no case more than 60 days after the date of the Company's offer to such persons. Notwithstanding the foregoing, nothing in this Section 3.4 will limit the right of the Company, if any Founding Investor has not accepted the Company's offer made pursuant to paragraph (a) above within 15 days of the Founding Investor's receipt of such offer, thereupon to consummate the issuance to BRS or its Affiliates of the number of shares of Common Stock included in such issuance which does not represent such Founding Investor's pro rata share of such issuance. (c) In the event either of the Founding Investors does not subscribe for all of the issue of Common Stock offered to him pursuant to this Section 3.4, the Company may issue to BRS the number of shares of Common Stock not subscribed for at a price no less favorable to the Company than that specified in such offer and on payment and other terms no less favorable to the Company than those specified in such offer. (d) Any shares of Common Stock issued pursuant to the Closing of the transactions contemplated under this Agreement or the Merger Agreement and any issuance of shares of Common Stock upon conversion of the Common Stock (or in connection with any stock dividend, stock split or similar transaction) shall be excluded from the applicability of this Section 3.4. (e) The preemptive rights granted by this Section 3.4 shall expire at the earlier of (i) as to either of the Founding Investors, at such time as such Founding Investor (together with his Permitted Transferees) holds less than 5% of the outstanding shares of Common Stock, or (ii) upon the consummation of a Public Offering.

Certain Preemptive Rights. (a) If at any time prior to the consummation of a Qualified Public Offering the Company proposes to issue accept a capital contribution from any shares of Common Stock to BRS or its Affiliates, Person other than in pursuant to Section 4.01(a) (a transaction described in Section 3.4(d) below"Preemptive Interest"), the Company shall first offer in writing to sell to give each Founding Investor such Investor's pro rata share of Member notice thereof at least 45 days before the proposed issue contribution and each Member shall have the right to participate in such contribution for a portion of Common Stock, at the same price and such contribution allocated as set forth below on the same terms at which and conditions as such Person. The Members shall have 30 days to exercise such right by delivering written notice thereof to the Company proposes Company. Such notice will specify the amount of the contribution the Member is willing to sell make and shall constitute a binding contract by the Member to make such issue contribution. Any contribution made pursuant to BRS or its Affiliates. For purposes hereof, a Founding Investor's "pro rata share" of an issue of Common Stock this Section 9.07 shall be referred to as a "Preemptive Contribution." (b) If any of the Members elect to participate in the contribution pursuant to Section 9.07(a), the amount of the contribution that number which such Member may make shall be determined as follows (i) if a Member has elected to make a contribution in an amount that, as a percentage of the aggregate amount of the Preemptive Interest, is equal to or less than its Percentage Interest, it shall be entitled to make the contribution that it has elected to make, (ii) if a Member has elected to make a contribution in an amount that, as a percentage of the aggregate amount of the Preemptive Interest, is greater than its Percentage Interest, it shall be initially be entitled to make a contribution in an amount equal to the product of its Percentage Interest and the aggregate amount of the Preemptive Interest, (iii) if any amount of the Preemptive Interest has not been subscribed for after the allocations set forth in clauses (i) the number of shares proposed to be issued to BRS or its Affiliates, times and (ii) above, each Member that has elected to contribute a fraction, percentage of the numerator Preemptive Interest in excess of which is its Percentage Interest shall be entitled to contribute from such remaining Preemptive Interest an amount equal to the number lesser of outstanding shares (A) the amount of Common Stock held by such Founding Investor, Preemptive Interest it has elected to contribute in excess of the amount allocated to it in clause (ii) above and (B) an amount of the Preemptive Interest equal to the product of its Percentage Interest and the denominator of which is the aggregate number of outstanding shares of Common Stock calculated on a fully diluted basis. (b) The Company's offer shall describe the quantity, the price and payment terms amount of the Common Stock proposed remaining Preemptive Interest. The Preemptive Interest will be allocated pursuant to be issued to BRS or its Affiliates. Each Founding Investor shall have 30 days from receipt the provisions of such offer to accept the offer in writing, which acceptance may be as to all or any part of such Founding Investor's pro rata share of such issue. Sale clause (iii) of the portion preceding sentence until the entire Preemptive Interest is allocated to the Members or until each Member has been allocated the right to purchase all of the Common Stock subscribed for under this Section 3.4(b) shall be held on a date acceptable contribution it elected to the Company and those persons who have exercised their preemptive rights, but in no case more than 60 days after the date of the Company's offer to such persons. Notwithstanding the foregoing, nothing in this Section 3.4 will limit the right of the Company, if any Founding Investor has not accepted the Company's offer made contribute pursuant to paragraph (a) above within 15 days of the Founding Investor's receipt of such offer, thereupon to consummate the issuance to BRS or its Affiliates of the number of shares of Common Stock included in such issuance which does not represent such Founding Investor's pro rata share of such issuanceSection 9.07(a). (c) In If the event either of Members fail to exercise fully the Founding Investors does not subscribe for all of the issue of Common Stock offered to him preemptive right pursuant to this Section 3.49.07 within the 30-day period, the Company may issue shall have 90 days thereafter to BRS accept the number of shares of Common Stock not subscribed for Preemptive Contribution at a price and on terms no less more favorable to the Company than that purchasers thereof specified in such offer and on payment and other terms no less favorable to the Company than those specified in such offer. (d) Any shares of Common Stock issued Company's notice pursuant to the Closing of the transactions contemplated under this Agreement or the Merger Agreement and any issuance of shares of Common Stock upon conversion of the Common Stock (or in connection with any stock dividend, stock split or similar transaction) shall be excluded from the applicability of this Section 3.49.07. (e) The preemptive rights granted by this Section 3.4 shall expire at the earlier of (i) as to either of the Founding Investors, at such time as such Founding Investor (together with his Permitted Transferees) holds less than 5% of the outstanding shares of Common Stock, or (ii) upon the consummation of a Public Offering.

Certain Preemptive Rights. (a) If Except as hereinafter provided in this Section 6.3, if after the date hereof the Company proposes to issue any additional shares of Common Stock to BRS common equity securities or its Affiliatessecurities convertible, other than in a transaction described in Section 3.4(d) belowexchangeable or exercisable for common equity securities ("Additional Shares"), the Company shall first offer in writing to sell deliver to each Founding Investor such Investor's pro rata share holder of then outstanding Class C Common Shares written notice thereof, which notice shall include a general description of the terms of such proposed issue issuance of Common Stock, at the same price and on the same terms at which the Company proposes to sell such issue to BRS or its Affiliates. For purposes hereof, a Founding Investor's "pro rata share" of an issue of Common Stock shall be that number which is equal to the product of Additional Shares (i) including the number of shares proposed Additional Shares to be so issued), the purchase price per Additional Share to be issued and the anticipated issuance date. Within ten (10) days of delivery of such notice, each holder may by written notice (the "Additional Shares Offer") offer to BRS or its Affiliates, times (ii) purchase in such proposed issuance up to a fractionmaximum number of the Additional Shares such that immediately after the purchase of such Additional Shares by such holder, the numerator percentage of which is the number of outstanding all shares of Common Stock held by such Founding Investor, common equity securities issued and the denominator of which is the aggregate number of outstanding shares of Common Stock calculated on a fully diluted basisbasis (assuming conversion of warrants, options and other instruments of the Company convertible into or exchangeable for common equity securities other than the Warrants or the Rights) owned by such holder shall be unchanged as a result of such issuance. Any holder who fails to provide the Company with an Additional Shares Offer within such ten (10) day period shall be deemed to have waived its right to buy any Additional Shares or otherwise to participate in such proposed issuance. If the terms of the proposed issuance of Additional Shares set forth in the notice provided by the Company pursuant to this paragraph shall have materially changed from the date of such notice, the Company shall deliver to each holder of then outstanding Class C Common Shares an additional notice and such holder shall again have the rights set forth in this paragraph (and, if such holder shall have provided the Company with an Additional Shares Offer, such holder shall be entitled to amend such offer) in accordance with the time periods set forth in this paragraph. (b) The Company's offer shall describe the quantity, the price rights and payment terms of the Common Stock proposed to be issued to BRS or its Affiliates. Each Founding Investor shall have 30 days from receipt of such offer to accept the offer in writing, which acceptance may be as to all or any part of such Founding Investor's pro rata share of such issue. Sale of the portion of the Common Stock subscribed for under this Section 3.4(b) shall be held on a date acceptable to the Company and those persons who have exercised their preemptive rights, but in no case more than 60 days after the date of the Company's offer to such persons. Notwithstanding the foregoing, nothing obligations set forth in this Section 3.4 will limit 6.3 shall not apply to any issuances of Additional Shares in respect of (i) warrants or options to acquire any common equity securities which are outstanding on the right date hereof or on the Closing Date, (ii) any stock option or employee benefit plan of the Company now existing or hereafter adopted by the Board of Directors or shareholders of the Company, if (iii) any Founding Investor has not accepted the Company's offer made pursuant to paragraph Initial Public Offering, (aiv) above within 15 days securities of the Founding Investor's receipt of such offer, thereupon to consummate the issuance to BRS Company issued or its Affiliates of the number of shares of Common Stock included in such issuance which does not represent such Founding Investor's pro rata share of such issuance. (c) In the event either of the Founding Investors does not subscribe for all of the issue of Common Stock offered to him pursuant to this Section 3.4, the Company may issue to BRS the number of shares of Common Stock not subscribed for at a price no less favorable to the Company than that specified in such offer and on payment and other terms no less favorable to the Company than those specified in such offer. (d) Any shares of Common Stock issued issuable pursuant to the Closing of the transactions contemplated under this Agreement or the Merger Agreement and any issuance of shares of Common Stock upon conversion of the Common Stock (or in connection with the Warrants or Rights pursuant hereto, (v) any merger or acquisition involving the Company which has been approved by the Board, (vi) a stock dividend, stock split dividend or similar transaction) shall be excluded from the applicability of this Section 3.4. (e) The preemptive rights granted by this Section 3.4 shall expire at the earlier of (i) as to either recapitalization of the Founding Investors, at such time as such Founding Investor (together with his Permitted Transferees) holds less than 5% of the outstanding shares of Common StockCompany, or (iivii) upon any acquisition or similar transaction of the consummation Company not intended primarily to raise capital. For purposes of this Agreement, "Initial Public Offering shall mean the first underwritten public offering of Class A Common Shares by or for the account of the Company and offered on a Public Offering"firm commitment" or "best efforts" basis pursuant to an offering registered under the Act on Form S-1, Form SB-1 or their equivalents.

Certain Preemptive Rights. (a) If Except as hereinafter provided in this Section 6.2, if after the date hereof the Company proposes to issue any additional shares of Common Stock to BRS common equity securities or its Affiliatessecurities convertible, other than in a transaction described in Section 3.4(d) belowexchangeable or exercisable for common equity securities ("Additional Shares"), the Company shall first offer in writing to sell deliver to each Founding Investor such Investor's pro rata share holder of then outstanding Class C Common Shares written notice thereof, which notice shall include a general description of the terms of such proposed issue issuance of Common Stock, at the same price and on the same terms at which the Company proposes to sell such issue to BRS or its Affiliates. For purposes hereof, a Founding Investor's "pro rata share" of an issue of Common Stock shall be that number which is equal to the product of Additional Shares (i) including the number of shares proposed Additional Shares to be so issued), the purchase price per Additional Share to be issued and the anticipated issuance date. Within ten (10) days of delivery of such notice, each holder may by written notice (the "Additional Shares Offer") offer to BRS or its Affiliates, times (ii) purchase in such proposed issuance up to a fractionmaximum number of the Additional Shares such that immediately after the purchase of such Additional Shares by such holder, the numerator percentage of which is the number of outstanding all shares of Common Stock held by such Founding Investor, common equity securities issued and the denominator of which is the aggregate number of outstanding shares of Common Stock calculated on a fully diluted basisbasis (assuming conversion of warrants, options and other instruments of the Company convertible into or exchangeable for common equity securities other than the Warrants or the Rights) owned by such holder shall be unchanged as a result of such issuance. Any holder who fails to provide the Company with an Additional Shares Offer within such ten (10) day period shall be deemed to have waived its right to buy any Additional Shares or otherwise to participate in such proposed issuance. If the terms of the proposed issuance of Additional Shares set forth in the notice provided by the Company pursuant to this paragraph shall have materially changed from the date of such notice, the Company shall deliver to each holder of then outstanding Class C Common Shares an additional notice and such holder shall again have the rights set forth in this paragraph (and, if such holder shall have provided the Company with an Additional Shares Offer, such holder shall be entitled to amend such offer) in accordance with the time periods set forth in this paragraph. (b) The Company's offer shall describe the quantity, the price rights and payment terms of the Common Stock proposed to be issued to BRS or its Affiliates. Each Founding Investor shall have 30 days from receipt of such offer to accept the offer in writing, which acceptance may be as to all or any part of such Founding Investor's pro rata share of such issue. Sale of the portion of the Common Stock subscribed for under this Section 3.4(b) shall be held on a date acceptable to the Company and those persons who have exercised their preemptive rights, but in no case more than 60 days after the date of the Company's offer to such persons. Notwithstanding the foregoing, nothing obligations set forth in this Section 3.4 will limit 6.2 shall not apply to any issuances of Additional Shares in respect of (i) warrants or options to acquire any common equity securities which are outstanding on the right date hereof or on the Closing Date, (ii) any stock option or employee benefit plan of the Company now existing or hereafter adopted by the Board of Directors or shareholders of the Company, if (iii) any Founding Investor has not accepted the Company's offer made pursuant to paragraph Initial Public Offering, (aiv) above within 15 days securities of the Founding Investor's receipt of such offer, thereupon to consummate the issuance to BRS Company issued or its Affiliates of the number of shares of Common Stock included in such issuance which does not represent such Founding Investor's pro rata share of such issuance. (c) In the event either of the Founding Investors does not subscribe for all of the issue of Common Stock offered to him pursuant to this Section 3.4, the Company may issue to BRS the number of shares of Common Stock not subscribed for at a price no less favorable to the Company than that specified in such offer and on payment and other terms no less favorable to the Company than those specified in such offer. (d) Any shares of Common Stock issued issuable pursuant to the Closing of the transactions contemplated under this Agreement or the Merger Agreement and any issuance of shares of Common Stock upon conversion of the Common Stock (or in connection with the Warrants or Rights pursuant hereto, (v) any merger or acquisition involving the Company which has been approved by the Board, (vi) a stock dividendsplit, stock split dividend or similar transaction) shall be excluded from the applicability of this Section 3.4. (e) The preemptive rights granted by this Section 3.4 shall expire at the earlier of (i) as to either recapitalization of the Founding Investors, at such time as such Founding Investor (together with his Permitted Transferees) holds less than 5% of the outstanding shares of Common StockCompany, or (iivii) upon any acquisition or similar transaction of the consummation Company not intended primarily to raise capital. For purposes of a this Agreement, "Initial Public Offering" shall mean the first underwritten public offering of Class A Common Shares by or for the account of the Company and offered on a "firm commitment" or "best efforts" basis pursuant to an offering registered under the Act on Form S1, Form SB-1 or their equivalents.

Certain Preemptive Rights. (a) If at any time the Company proposes to issue any shares type of Common Stock to BRS or its AffiliatesSecurities, other than in a transaction the Securities described in Section 3.4(d2.2(d) below, the Company shall first offer in writing to sell to each Founding Investor such Investor's Strategic Partner its pro rata share of the proposed issue of Common Stocksuch type of Securities, at the same price and on the same terms at which the Company proposes to sell such issue to BRS or its Affiliatesothers. For purposes hereof, a Founding Investoreach Strategic Partner's "pro rata share" of an issue of Common Stock any type of Securities shall be that amount of such Securities which would result in such Strategic Partner owning the same percentage of the Company's issued and outstanding shares of that certain type of Security after the issuance of the Securities as such Strategic Partner owned immediately prior to the issuance. For purposes hereof, a Strategic Partner's "pro rata share" of an issue of Securities shall be that number which is equal to the product of (i) the number of shares proposed to be issued to BRS or its Affiliates, times (ii) a fraction, the numerator of which is the number of outstanding shares of Common Stock Securities held by such Founding InvestorStrategic Partner, and the denominator of which is the aggregate number of outstanding shares of Common Stock Securities calculated on a fully diluted basis. (b) The Company's offer shall describe the Securities proposed to be issued by the Company, specifying the quantity, the price and payment terms of the Common Stock proposed to be issued to BRS or its Affiliatesterms. Each Founding Investor Strategic Partner shall have 30 thirty (30) days from receipt of such offer to accept the offer in writing, which acceptance may be as to all or any part of such Founding Investor's its pro rata share of such issue. Sale of the portion of the Common Stock Securities subscribed for under this Section 3.4(b) hereunder shall be held on a date acceptable to the Company and those persons who have exercised their preemptive rightseach Strategic Partner, but in no case event more than 60 sixty (60) days after the date of the Company's offer to such persons. Notwithstanding the foregoing, nothing in this Section 3.4 will limit the right of the Company, if any Founding Investor has not accepted the Company's offer made pursuant to paragraph (a) above within 15 days of the Founding Investor's receipt of such offer, thereupon to consummate the issuance to BRS or its Affiliates of the number of shares of Common Stock included in such issuance which does not represent such Founding Investor's pro rata share of such issuanceStrategic Partners. (c) In the event either of the Founding Investors does Strategic Partners do not subscribe for all of the issue of Common Stock Securities offered to him them pursuant to this Section 3.42.2, the Company may issue to BRS sell the number portion of shares of Common Stock the Securities not subscribed for for, together with the portion of such issue of Securities, if any, not subject to preemptive rights under this Section 2.2, at a price no less favorable to the Company than that specified in such offer and on payment and other terms no less favorable to the Company than those specified in such offer; provided, however, that if such sale -------- ------- is not consummated within one hundred twenty (120) days after the date the offer pursuant to this Section 2.2 was made to the Strategic Partners, the Company shall not sell such Securities without again complying with this Section 2.2. (d) Any shares The rights of Common Stock issued pursuant Strategic Partners under this Section 2.2 shall not apply to the Closing of the transactions contemplated under this Agreement or the Merger Agreement and any issuance of shares of Common Stock upon conversion of the Common Stock (or in connection with any stock dividend, stock split or similar transaction) shall be excluded from the applicability of this Section 3.4.following Securities: (e) The preemptive rights granted by this Section 3.4 shall expire at the earlier of (i) as Securities issued with respect to either of the Founding Investors, at such time as such Founding Investor (together with his Permitted Transferees) holds less than 5% of the outstanding shares of Common Stock, or Options; (ii) upon the consummation of Securities issued in accordance with this Agreement; and (iii) Securities issued for consideration other than cash pursuant to a Public Offeringmerger, consolidation, acquisition or similar business combination.

Certain Preemptive Rights. (a) If Except as hereinafter provided in this Section 5, if after the date hereof the Company proposes to issue any additional shares of Common Stock to BRS common equity securities or its Affiliatessecurities convertible, other than in a transaction described in Section 3.4(d) belowexchangeable or exercisable for common equity securities ("Additional Shares"), the Company shall first offer in writing to sell deliver to each Founding Investor such Investor's pro rata share holder of then outstanding shares of Preferred Stock written notice thereof, which notice shall include a general description of the terms of such proposed issue issuance of Common Stock, at the same price and on the same terms at which the Company proposes to sell such issue to BRS or its Affiliates. For purposes hereof, a Founding Investor's "pro rata share" of an issue of Common Stock shall be that number which is equal to the product of Additional Shares (i) including the number of shares proposed Additional Shares to be so issued), the purchase price per Additional Share to be issued and the anticipated issuance date. Within ten (10) days of delivery of such notice, each holder may by written notice (the "Additional Shares Offer") offer to BRS or its Affiliates, times (ii) purchase in such proposed issuance up to a fractionmaximum number of the Additional Shares such that immediately after the purchase of such Additional Shares by such holder, the numerator percentage of which is the number all shares of common equity securities issued and outstanding on a fully diluted basis (assuming conversion of all outstanding shares of Common Preferred Stock, warrants, options and other instruments of the Company convertible into or exchangeable for common equity securities) owned by such holder (assuming conversion in full of all shares of Preferred Stock held by such Founding Investorholder immediately prior to the issuance of the Additional Shares) shall be unchanged as a result of such issuance. Any holder who fails to provide the Company with an Additional Shares Offer within such ten (10) day period shall be deemed to have waived its right to buy any Additional Shares or otherwise to participate in such proposed issuance. If the terms of the proposed issuance of Additional Shares set forth in the notice provided by the Company pursuant to this paragraph shall have materially changed from the date of such notice, the Company shall deliver to each holder of then outstanding Preferred Stock an additional notice and such holder shall again have the denominator of which is rights set forth in this paragraph (and, if such holder shall have provided the aggregate number of outstanding shares of Common Stock calculated on a fully diluted basisCompany with an Additional Shares Offer, such holder shall be entitled to amend such offer) in accordance with the time periods set forth in this paragraph. (b) The Company's offer shall describe the quantity, the price rights and payment terms of the Common Stock proposed to be issued to BRS or its Affiliates. Each Founding Investor shall have 30 days from receipt of such offer to accept the offer in writing, which acceptance may be as to all or any part of such Founding Investor's pro rata share of such issue. Sale of the portion of the Common Stock subscribed for under this Section 3.4(b) shall be held on a date acceptable to the Company and those persons who have exercised their preemptive rights, but in no case more than 60 days after the date of the Company's offer to such persons. Notwithstanding the foregoing, nothing obligations set forth in this Section 3.4 will limit 4 shall not apply to any issuances of Additional Shares in respect of (i) warrants or options to acquire any common equity securities which are outstanding on the right date hereof, (ii) any stock option or employee benefit plan of the Company now existing or hereafter adopted by the Board of Directors or shareholders of the Company, if (iii) any Founding Investor Initial Public Offering, (iv) securities of the Company issued or issuable pursuant to the Purchase Agreement or in connection with the transactions contemplated thereby, including equity securities issued or issuable as part of obtaining the funding for such transactions, (v) any merger or acquisition involving the Company which has not accepted been approved by the Board, (vi) a stock split, stock dividend or recapitalization of the Company's offer made pursuant to paragraph , or (avii) above within 15 days any other transaction of the Founding Investor's receipt of such offer, thereupon Company not intended primarily to consummate the issuance to BRS or its Affiliates of the number of shares of Common Stock included in such issuance which does not represent such Founding Investor's pro rata share of such issuanceraise capital. (c) In the event either of the Founding Investors does not subscribe for all of the issue of Common Stock offered to him pursuant to this Section 3.4, the Company may issue to BRS the number of shares of Common Stock not subscribed for at a price no less favorable to the Company than that specified in such offer and on payment and other terms no less favorable to the Company than those specified in such offer. (d) Any shares of Common Stock issued pursuant to the Closing of the transactions contemplated under this Agreement or the Merger Agreement and any issuance of shares of Common Stock upon conversion of the Common Stock (or in connection with any stock dividend, stock split or similar transaction) shall be excluded from the applicability The provisions of this Section 3.4. (e) The preemptive rights granted by this Section 3.4 4 shall expire at the earlier of (i) as to either of the Founding Investors, at such time as such Founding Investor (together with his Permitted Transferees) holds less than 5% of the outstanding shares of Common Stock, or (ii) terminate upon the consummation of a initial closing under an Initial Public Offering.