Common use of Contractual Preemptive Rights Clause in Contracts

Contractual Preemptive Rights. If the Company proposes to issue, sell or otherwise transfer any shares of Common Stock (or any security convertible or exchangeable into Common Stock) of the Company (the "OFFERED SECURITIES"), each Shareholder who is an accredited investor (as defined under Rule 501 of Regulation D) shall have the right to purchase the number of Offered Securities provided below in this Section 4.5; provided, that the provisions of this Section 4.5 shall not apply to any issuances (a) to any employee of the Company or any of its Subsidiaries pursuant to any stock option or similar benefit plan or any employee stock offering, (b) in connection with a Public Offering, (c) of any Common Stock in payment of any dividend on the Common Stock pursuant to the terms of the Certificate of Incorporation, (d) of any Common Stock in a merger, stock exchange, purchase of assets or similar transaction, (e) of any Common Stock upon exercise of the Warrants or (f) of any Common Stock to any Person that is not a Shareholder or an Affiliate of a Shareholder at the time of issuance. The Company shall give each Shareholder at least 20 days' prior written notice of any such proposed issuance setting forth in reasonable detail the proposed terms and conditions thereof and shall offer to each Shareholder the opportunity to purchase such securities at the same price, on the same terms (including, if more than one type of security is issued, each type of security in the same proportion offered), and at the same time as the securities are proposed to be issued by the Company. A Shareholder may exercise its preemptive rights by delivery of an irrevocable written notice to the Company not more than 10 days after delivery of the Company's notice, which notice shall state the number of Offered Securities such Shareholder (each a "REQUESTING SHAREHOLDER" and collectively, the "REQUESTING SHAREHOLDERS") would like to purchase. If the total number of Offered Securities requested to be purchased exceeds the total number of Offered Securities proposed to be issued and sold by the Company, then the Company will issue and sell the Offered Securities to the Requesting Shareholders pro rata based on the number of Shares (determined on a Fully-Diluted basis) owned by each such Shareholder prior to the issuance at hand. If the total number of Offered Securities requested to be purchased does not equal the total number of Offered Securities proposed to be issued and sold by the Company, the Company shall give notice to each Requesting Shareholder

Contractual Preemptive Rights. If Subject to (i) the terms and conditions specified in this Section 7.1 and (ii) subject to Section 7.2 below regarding certain specific financing transactions, the Company hereby grants to the Purchasers a right of first offer with respect to future sales by the Company of New Securities. Each Purchaser shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates in such proportions as it deems appropriate. Each time the Company proposes to issueoffer any New Securities, sell or otherwise transfer any the Company shall first make an offering of such New Securities to Purchasers in accordance with the following provisions: (a) The Company shall deliver a notice in accordance with Section 9.6 (“New Security Notice”) to the Purchasers stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered and (iii) the price and terms upon which it proposes to offer such New Securities. (b) By written notification received by the Company within twenty (20) calendar days after the giving of New Security Notice, each Purchaser may elect to purchase, at the price and on the terms specified in the New Security Notice, up to that portion of such New Securities that equals the proportion that the number of shares of Common Stock issued and held by such Purchaser (or any security assuming full conversion and exercise of all convertible or exchangeable into and exercisable securities then outstanding) bears to the total number of shares of Common StockStock then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding). The Company shall promptly, in writing, inform each Purchaser that elects to purchase all the shares available to it (a “Fully Exercising Purchaser”) of any other Purchaser’s failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully Exercising Purchaser may elect to purchase that portion of the New Securities for which Purchasers were entitled to subscribe, but which were not subscribed for by the Purchasers, that is equal to the proportion that the number of shares of Common Stock issued and held by such Fully Exercising Purchaser (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding). (c) If all New Securities that Purchasers are entitled to obtain pursuant to Section 7.1(b) are not elected to be obtained as provided in Section 7.1(b) hereof, the Company may, during the thirty (30) day period following the "OFFERED SECURITIES")expiration of the period provided in Section 7.1(b) hereof, each Shareholder who offer the remaining unsubscribed portion of such New Securities to any person or persons at a price not less than that, and upon terms no more favorable to the offeree than those, specified in the New Security Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within fifteen (15) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Purchasers in accordance herewith. (d) The right of first offer in this Section 7.1 shall not be applicable to (i) the issuance of (A) options to purchase up to 300,000 shares of Common Stock to employees, directors, consultants and other service providers, at an accredited investor exercise price per share not less than the greater of (x) Series B Conversion Price (as defined in the Certificate of Designation) or (y) the Market Price (as defined in the Certificate of Designation), in each case, as in effect immediately prior to such issuance, and (B) up to 150,000 shares of restricted Common Stock, in each case under Rule 501 clauses (A) and (B), pursuant to the Company’s 2007 Omnibus Securities and Incentive Plan and for the primary purpose of Regulation Dsoliciting or compensation for their past or future services, (ii) shall have the right issuance of securities pursuant to purchase the number conversion or exercise of Offered Securities provided below in this Section 4.5; provided, that the provisions of this Section 4.5 shall not apply to any issuances (a) to any employee convertible or exercisable securities outstanding as of the Company or any of its Subsidiaries pursuant to any stock option or similar benefit plan or any employee stock offeringdate hereof (including the Series A Preferred Stock), (biii) in connection with a Public Offering, (c) issuance of any Common Stock in payment shares of any dividend on the Common Stock pursuant to the terms redemption Notes as described and in accordance with Section 7.5 and (iv) the issuance of the Certificate of Incorporation, Series B Preferred Stock pursuant to this Agreement (d) of any Common Stock in a merger, stock exchange, purchase of assets or similar transaction, (e) of any Common Stock upon exercise of the Warrants or (f) of any Common Stock to any Person that is not a Shareholder or an Affiliate of a Shareholder at the time of issuance. The Company shall give each Shareholder at least 20 days' prior written notice of any such proposed issuance setting forth in reasonable detail the proposed terms and conditions thereof and shall offer to each Shareholder the opportunity to purchase such securities at the same price, on the same terms (including, if more than one type of security is issued, each type of security in the same proportion offered), and at the same time as the securities are proposed to be issued by the Company. A Shareholder may exercise its preemptive rights by delivery of an irrevocable written notice to the Company not more than 10 days after delivery of the Company's notice, which notice shall state the number of Offered Securities such Shareholder (each a "REQUESTING SHAREHOLDER" and collectively, the "REQUESTING SHAREHOLDERS") would like to purchase. If the total number of Offered Securities requested to be purchased exceeds the total number of Offered Securities proposed to be issued and sold by the Company, then the Company will issue and sell the Offered Securities to the Requesting Shareholders pro rata based on the number of Shares (determined on a Fully-Diluted basis) owned by each such Shareholder prior to the issuance at hand. If the total number of Offered Securities requested to be purchased does not equal the total number of Offered Securities proposed to be issued and sold by the Company, the Company shall give notice to each Requesting Shareholder“Excluded Issuances”).

Contractual Preemptive Rights. If prior to a Qualified Public Offering, the Company proposes shall issue any Equity Securities, each holder of Underlying Common Stock shall be entitled to issue, sell or otherwise transfer any purchase the portion of such Equity Securities to be issued necessary in order that the. aggregate shares of Common Stock and Underlying Common Stock held by such holder constitute the same percentage of all Common Stock (assuming, in each case, the conversion, exercise or any security convertible or exchangeable into Common Stockexchange of all outstanding Equity Securities, including outstanding Equity Securities held by such holder) after the issuance of such Equity Securities as before the Company (the "OFFERED SECURITIES"), each Shareholder who is an accredited investor (as defined under Rule 501 of Regulation D) shall have the right to purchase the number of Offered Securities provided below in this Section 4.5issuance thereof; provided, however, that the provisions of this Section 4.5 such preemptive right shall not apply to any issuances (a) issuances of Equity Securities to any employee employees of the Company or any of its Subsidiaries pursuant as and to any stock option or similar benefit plan or any employee stock offeringthe extent permitted by paragraph 4D(iv), (b) in connection with a Public Offeringissuances of Equity Securities upon the conversion, exercise or exchange of other Equity Securities to which the preemptive rights granted hereunder were applicable, (c) issuances of any Common Stock Equity Securities in payment connection with an exercise of any dividend on the Common preemptive rights granted hereunder, or (d) issuances of Preferred Stock pursuant to this Agreement or issuances of Common Stock or other Equity Securities as a dividend or other distribution with respect to the terms Preferred Stock or upon conversion of the Certificate Preferred Stock. The price of Incorporation, (d) securities which each holder becomes entitled to purchase by reason hereof shall be the same price at which such securities are offered to others. A holder of any Underlying Common Stock in a merger, stock exchange, may exercise his or its right under this paragraph 7P to purchase of assets or similar transaction, (e) of any Common Stock upon exercise Equity Securities by paying the purchase price therefor at the principal office of the Warrants or Company within 15 days after receipt of notice from the Company (f) of any Common Stock to any Person that is not a Shareholder or an Affiliate of a Shareholder at which notice by the time of issuance. The Company shall give each Shareholder be given at least 20 days' prior written notice days before the issuance of any the Equity Securities) stating the amount of Equity Securities it intends to issue and the price and characteristics thereof. The holder shall pay such proposed issuance setting forth purchase price in reasonable detail cash or by check; provided, however, that if the proposed terms and conditions thereof and Company is indebted to such holder, the holder shall offer to each Shareholder the opportunity to purchase such securities be entitled, at the same priceholder's sole option, on to credit against the same terms (including, if more than one type of security is issued, each type of security in the same proportion offered), and at the same time as the securities are proposed to be issued by the Company. A Shareholder may exercise its preemptive rights by delivery of an irrevocable written notice to the Company not more than 10 days after delivery purchase price all or any portion of the Company's notice, indebtedness to such holder which notice is then due (accrued and unpaid dividends on the Preferred Stock shall state the number of Offered Securities such Shareholder (each a "REQUESTING SHAREHOLDER" and collectively, the "REQUESTING SHAREHOLDERS") would like to purchase. If the total number of Offered Securities requested be deemed to be purchased exceeds the total number indebtedness for purposes of Offered Securities proposed such credit). A holder's contractual preemptive rights hereunder shall be deemed to be issued and sold by the Company, then the Company will issue and sell the Offered Securities to the Requesting Shareholders pro rata based on the number of Shares (determined on a Fully-Diluted basis) owned by each such Shareholder exercised immediately prior to the issuance close of business on the day of payment of the purchase price in accordance with the foregoing provisions, and at handsuch time such holder shall be treated for all purposes as the record holder of the Equity Securities, as the case may be. If As promptly as practicable (and in any event within ten days) on or after the total number of Offered Securities requested to be purchased does not equal the total number of Offered Securities proposed to be issued and sold by the Companypurchase date, the Company shall give notice issue and deliver at its principal office a certificate or certificates for the number of full shares or amount, whichever is applicable, of Equity Securities together with cash for any fraction of a share or portion of an Equity Security at the purchase price to each Requesting Shareholderwhich the holder is entitled hereunder. * * *

Contractual Preemptive Rights. If Subject to (i) the terms and conditions specified in this Section 7.1 and (ii) subject to Section 7.2 below regarding certain specific financing transactions, the Company hereby grants to the Purchasers a right of first offer with respect to future sales by the Company of New Securities. Each Purchaser shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates in such proportions as it deems appropriate. Each time the Company proposes to issueoffer any New Securities, sell the Company shall first make an offering of such New Securities to Purchasers in accordance with the following provisions: (a) The Company shall deliver a notice in accordance with Section 9.6 (“New Security Notice”) to the Purchasers stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered and (iii) the price and terms upon which it proposes to offer such New Securities. (b) By written notification received by the Company within twenty (20) calendar days after the giving of New Security Notice, each Purchaser may elect to purchase, at the price and on the terms specified in the New Security Notice, up to that portion of such New Securities that equals the proportion that the number of shares of Common Stock issued and held by such Purchaser (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding). The Company shall promptly, in writing, inform each Purchaser that elects to purchase all the shares available to it (a “Fully Exercising Purchaser”) of any other Purchaser’s failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully Exercising Purchaser may elect to purchase that portion of the New Securities for which Purchasers were entitled to subscribe, but which were not subscribed for by the Purchasers, that is equal to the proportion that the number of shares of Common Stock issued and held by such Fully Exercising Purchaser (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding). (c) If all New Securities that Purchasers are entitled to obtain pursuant to Section 7.1(b) are not elected to be obtained as provided in Section 7.1(b) hereof, the Company may, during the thirty (30) day period following the expiration of the period provided in Section 7.1(b) hereof, offer the remaining unsubscribed portion of such New Securities to any person or otherwise transfer any persons at a price not less than that, and upon terms no more favorable to the offeree than those, specified in the New Security Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within fifteen (15) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Purchasers in accordance herewith. (d) The right of first offer in this Section 7.1 shall not be applicable to (i) the issuance or sale of up to 1,000,000 shares of Common Stock (or any security options therefor) to employees, directors, consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to the Company’s 2007 Omnibus Securities and Incentive Plan, (ii) the issuance of securities pursuant to the conversion or exercise of convertible or exchangeable into Common Stock) exercisable securities outstanding as of the Company date hereof, and (iii) the "OFFERED SECURITIES"), each Shareholder who is an accredited investor (as defined under Rule 501 issuance of Regulation D) shall have the right to purchase the number of Offered Securities provided below in this Section 4.5; provided, that the provisions of this Section 4.5 shall not apply to any issuances (a) to any employee of the Company or any of its Subsidiaries pursuant to any stock option or similar benefit plan or any employee stock offering, (b) in connection with a Public Offering, (c) of any Common Stock in payment of any dividend on the Common Series A Preferred Stock pursuant to the terms of the Certificate of Incorporation, (d) of any Common Stock in a merger, stock exchange, purchase of assets or similar transaction, (e) of any Common Stock upon exercise of the Warrants or (f) of any Common Stock to any Person that is not a Shareholder or an Affiliate of a Shareholder at the time of issuance. The Company shall give each Shareholder at least 20 days' prior written notice of any such proposed issuance setting forth in reasonable detail the proposed terms and conditions thereof and shall offer to each Shareholder the opportunity to purchase such securities at the same price, on the same terms (including, if more than one type of security is issued, each type of security in the same proportion offered), and at the same time as the securities are proposed to be issued by the Company. A Shareholder may exercise its preemptive rights by delivery of an irrevocable written notice to the Company not more than 10 days after delivery of the Company's notice, which notice shall state the number of Offered Securities such Shareholder (each a "REQUESTING SHAREHOLDER" and collectively, the "REQUESTING SHAREHOLDERS") would like to purchase. If the total number of Offered Securities requested to be purchased exceeds the total number of Offered Securities proposed to be issued and sold by the Company, then the Company will issue and sell the Offered Securities to the Requesting Shareholders pro rata based on the number of Shares (determined on a Fully-Diluted basis) owned by each such Shareholder prior to the issuance at hand. If the total number of Offered Securities requested to be purchased does not equal the total number of Offered Securities proposed to be issued and sold by the Company, the Company shall give notice to each Requesting Shareholderthis Agreement.

Contractual Preemptive Rights. If Notwithstanding any preemptive or similar rights that any of the parties hereto may have pursuant to any other agreement, the parties hereto agree that their respective preemptive or similar rights with respect to the issuance of Company Securities by the Company proposes after the date hereof shall be governed exclusively by this Xxxxxxxxx 0X, and any such preemptive or similar rights contained in any other agreement, including without limitation, the Series A Purchase Agreement, the Series B Purchase Agreement, the Preferred B Warrants, the Series C Purchase Agreement, the Note Agreement the Mezzanine Warrants, are hereby terminated and rescinded in their entirety. If prior to issuea Qualified Public Offering, sell or otherwise the Company shall issue any Company Securities (including any transfer any of previously-issued Company Securities), each holder of Underlying Common Stock and Warrant Shares and the Hull Family Limited Partnership (the "Hull Partnership") shall be entitled to purchase the same proportion of such Company Securities to be issued necessary in order that the aggregate shares of Common Stock beneficially held by such holder constitute the same percentage of all Common Stock (assuming, in each case, the conversion, exercise or any security convertible or exchangeable into Common Stock) exchange of the all outstanding Company (the "OFFERED SECURITIES"Securities, including outstanding Company Securities held by such holder), each Shareholder who is an accredited investor (after the issuance of such Company Securities as defined under Rule 501 of Regulation D) shall have before the right to purchase the number of Offered Securities provided below in this Section 4.5issuance thereof; provided, that the provisions of this Section 4.5 shall not apply to any issuances however, (a) to any employee of the Company or any of its Subsidiaries pursuant to any stock option or similar benefit plan or any employee stock offering, (b) in connection with a Public Offering, (c) of any Common Stock in payment of any dividend on the Common Stock pursuant to the terms of the Certificate of Incorporation, (d) of any Common Stock in a merger, stock exchange, purchase of assets or similar transaction, (e) of any Common Stock upon exercise of the Warrants or (f) of any Common Stock to any Person that is not a Shareholder or an Affiliate of a Shareholder at the time of issuance. The Company shall give each Shareholder at least 20 days' prior written notice of any if such proposed issuance setting forth in reasonable detail the proposed terms and conditions thereof and shall offer to each Shareholder the opportunity holder elects to purchase such securities at the same priceCompany Securities, such holder shall be required to purchase (i) such Company Securities on the same terms and conditions as such Company Securities were issued by the Company and (including, ii) if more than one type of security Company Security is issued, a pro rata amount of each type such Company Security issued and (b) that such preemptive right shall not apply to (i) Company Securities issued to employees or consultants to the Company under any Approved Plan, (ii) Company Securities issued upon the conversion, exercise or exchange of security Company Securities to which the preemptive rights under this Paragraph 2C were previously applicable, (iii) Company Securities issued in connection with an exercise of the preemptive rights granted hereunder, (iv) Company Securities issued pursuant to the Series C Exchange Agreement or the Series D-1 Purchase Agreement, (v) Company Securities issued upon conversion of the Preferred Stock or exercise of the Warrants, the 2001 Warrants and the Xxxxxx Warrant or upon conversion of Class B Common Stock issued upon exercise of the Xxxxxx Warrant, (vi) Company Securities issued as consideration in the same proportion offered)merger with or acquisition of another Person, and at (vii) Company Securities issued in connection with a public offering, or (viii) shares of Class A Common Stock issued in payment of dividends on Series A Preferred Stock or Series C Preferred Stock pursuant to Article IV, Paragraph 5L of the same time as the securities are proposed to be issued by the CompanyArticles of Incorporation. A Shareholder holder of Underlying Common Stock or Warrant Shares or the Hull Partnership may exercise his or its preemptive rights right under this Xxxxxxxxx 0X to purchase Company Securities by delivery of an irrevocable providing written notice to the Company not more than 10 days after delivery within 20 days, and by paying the purchase price therefor at the principal office of the Company's noticeCompany within 30 days, after the receipt of notice from the Company (which notice by the Company shall state be given at least 30 days before the number issuance of Offered the Company Securities) stating the amount of Company Securities it intends to issue and the price and characteristics thereof. The holder shall pay such Shareholder (each a "REQUESTING SHAREHOLDER" and collectively, the "REQUESTING SHAREHOLDERS") would like to purchasepurchase price in immediately available funds. If the total number of Offered Securities requested A holder's contractual preemptive rights hereunder shall be deemed to be purchased exceeds the total number of Offered Securities proposed to be issued and sold by the Company, then the Company will issue and sell the Offered Securities to the Requesting Shareholders pro rata based on the number of Shares (determined on a Fully-Diluted basis) owned by each such Shareholder exercised immediately prior to the issuance close of business on the day of payment of the purchase price in accordance with the foregoing provisions, and at handsuch time such holder shall be treated for all purposes as the record holder of the Company Securities, as the case may be. If As promptly as practicable (and in any event within 10 days) on or after the total number of Offered Securities requested to be purchased does not equal the total number of Offered Securities proposed to be issued and sold by the Companypurchase date, the Company shall give notice issue and deliver at its principal office a certificate or certificates for the number of full shares or amount, whichever is applicable, of Company Securities together with cash for any fraction of a share or portion of a Company Security at the purchase price to each Requesting Shareholderwhich the holder is entitled hereunder.

Contractual Preemptive Rights. If The parties hereto agree that their respective preemptive or similar rights with respect to the issuance of Company Securities by the Company proposes after the date hereof shall be governed exclusively by this Paragraph 2C. If prior to issuea Qualified Public Offering, sell the Company shall issue any Company Securities (including any transfer by the Company of previously-issued Company Securities), each holder of 2002 Warrant Shares, Recapitalization Common Stock or otherwise transfer any Series A Preferred Stock if a Dividend Election has not been made (and, with respect to Austin Ventures, each Affiliate of Austin Ventures (collectively, the “AV Partners”)) and the Hull Partnership shall be entitled to purchase the proportion of such Company Securities equal to the quotient determined by dividing (1) the aggregate shares of Common Stock and Series A Preferred Stock beneficially held by such holder and (or any security convertible or exchangeable into 2) the total number of shares of Common Stock, 2002 Warrant Shares and Series A Preferred Stock outstanding (assuming, in each case, the conversion, exercise or exchange of all outstanding Company Securities, including outstanding Company Securities held by such holder) (with respect to the AV Partners, Austin Ventures shall designate which of the Company (AV Partners shall purchase shares and in what quantities so that the "OFFERED SECURITIES"proportion of all shares purchased by the AV Partners and Austin Ventures in the aggregate is the same as if only Austin Ventures were purchasing), each Shareholder who is an accredited investor (as defined under Rule 501 of Regulation D) shall have the right to purchase the number of Offered Securities provided below in this Section 4.5; provided, that the provisions of this Section 4.5 shall not apply to any issuances however (a) to any employee of the Company or any of its Subsidiaries pursuant to any stock option or similar benefit plan or any employee stock offering, (b) in connection with a Public Offering, (c) of any Common Stock in payment of any dividend on the Common Stock pursuant to the terms of the Certificate of Incorporation, (d) of any Common Stock in a merger, stock exchange, purchase of assets or similar transaction, (e) of any Common Stock upon exercise of the Warrants or (f) of any Common Stock to any Person that is not a Shareholder or an Affiliate of a Shareholder at the time of issuance. The Company shall give each Shareholder at least 20 days' prior written notice of any if such proposed issuance setting forth in reasonable detail the proposed terms and conditions thereof and shall offer to each Shareholder the opportunity holder elects to purchase such securities at the same priceCompany Securities, such holder shall be required to purchase (i) such Company Securities on the same terms and conditions as such Company Securities were issued by the Company and (including, ii) if more than one type of security Company Security is issuedissued and/or such Company Security is issued together with any Funded Debt, a pro rata amount of each type such Company Security and/or such Funded Debt issued and (b) that such preemptive right shall not apply to (i) Company Securities issued to employees or independent contractors of security or consultants to the Company under any Approved Plan, (ii) Company Securities issued in connection with an exercise of the preemptive rights granted hereunder, (iii) Series A Preferred Stock issued to Austin Ventures as a dividend or dividends in Series A Preferred Stock, (iv) Company Securities issued upon conversion of Series A Preferred Stock, (v) Company Securities issued upon exercise of the Xxxxxx Warrant or the 0000 Xxxxxxx or upon conversion of Class B Common Stock, (vi) Company Securities issued as consideration in the same proportion offeredmerger with or acquisition of another Person or an acquisition of assets other than cash, (vii) Company Securities issued in connection with a public offering, or (viii) Company Securities issued as a result of a Tax Valuation Event (as defined in the Recapitalization Agreement), and at the same time as the securities are proposed to be issued by the Company. A Shareholder holder of Recapitalization Common Stock or Series A Preferred Stock, an AV Partner or the Hull Partnership may exercise his or its preemptive rights right under this Xxxxxxxxx 0X to purchase Company Securities by delivery of an irrevocable providing written notice to the Company not more than 10 days after delivery within 20 days, and by paying the purchase price therefor at the principal office of the Company's noticeCompany within 30 days, after the receipt of notice from the Company (which notice by the Company shall state be given at least 30 days before the number issuance of Offered the Company Securities) stating the amount of Company Securities such Shareholder (each a "REQUESTING SHAREHOLDER" it intends to issue and collectivelythe price and characteristics thereof. The holder, the "REQUESTING SHAREHOLDERS") would like to purchaseHull Partnership or AV Partners, as applicable, shall pay such purchase price in immediately available funds. If A holder’s, the total number of Offered Securities requested Hull Partnership’s or an AV Partner’s, as applicable, contractual preemptive rights hereunder shall be deemed to be purchased exceeds the total number of Offered Securities proposed to be issued and sold by the Company, then the Company will issue and sell the Offered Securities to the Requesting Shareholders pro rata based on the number of Shares (determined on a Fully-Diluted basis) owned by each such Shareholder exercised immediately prior to the issuance close of business on the day of payment of the purchase price in accordance with the foregoing provisions, and at handsuch time such holder, the Hull Partnership or AV Partner, as applicable, shall be treated for all purposes as the record holder of the Company Securities, as the case may be. If As promptly as practicable (and in any event within 10 days) on or after the total number of Offered Securities requested to be purchased does not equal the total number of Offered Securities proposed to be issued and sold by the Companypurchase date, the Company shall give notice issue and deliver at its principal office a certificate or certificates for the number of full shares or amount, whichever is applicable, of Company Securities together with cash for any fraction of a share or portion of a Company Security at the purchase price to each Requesting Shareholderwhich the holder, the Hull Partnership or AV Partner, as applicable, is entitled hereunder.