Common use of Emptive Rights Clause in Contracts

Emptive Rights. (a) Except in the case of Excluded Securities, the Company shall not issue, sell or exchange, agree to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, any (i) Stock, (ii) any other equity security of the Company, (iii) any debt security of the Company which by its terms is convertible into or exchangeable for any equity security of the Company or has any other equity feature, (iv) any security of the Company that is a combination of a debt and equity security or (v) any option, warrant or other right to subscribe for, purchase or otherwise acquire any security of the Company specified in the foregoing clauses (i) through (iv), unless in each case the Company shall have first offered to sell such securities to the Stockholders (the "Offered Securities"), at each Stockholder's respective Proportionate Percentage at a price and on such other terms and conditions as shall have been specified by the Company in writing delivered to each Stockholder (the "Offer"), which Offer by its terms shall remain open and irrevocable for a period of 30 days from the date it is delivered by the Company to the Stockholder. (b) The Company may specify in the Offer that all or a minimum amount of the Offered Securities must be sold in such offering (to the Stockholders and/or any third parties pursuant to Section 7(d)), in which case any Notice of Acceptance (as defined below) shall be deemed conditioned upon (i) receipt of Notices of Acceptance of all or such minimum amount, as applicable, of the Offered Securities and/or (ii) the sale of all, or such minimum amount, as applicable, of the Offered Securities pursuant to Section 7(d). (c) Notice of the Stockholder's intention to accept, in whole or in part, an Offer shall be evidenced by a writing signed by such Stockholder and delivered to the Company prior to the end of the 30-day period of such Offer, setting forth such portion of the Offered Securities the Stockholders elect to purchase (the "Notice of Acceptance"). (d) In the event that Notice of Acceptance is not given by the Stockholders in respect of all the Offered Securities, the Company shall have 120 days from the expiration of the foregoing 30-day period to sell all or any part of such Offered Securities as to which Notice of Acceptances have not been given by the Stockholders (the "Refused Securities") to any other person or persons, but only upon terms and conditions in all material respects, including, without limitation, unit price and interest rates, which are no more favorable to such other person or persons and no less favorable to the Company than those set forth in the Offer. Upon the closing, which shall include full payment to the Company, of the sale to such other person or persons of all the Refused Securities, the Stockholders shall purchase from the Company, and the Company shall sell to the Stockholders, the Offered Securities in respect of which Notice of Acceptances were delivered to the Company by the Stockholders, at the terms specified in the Offer. (e) In each case, any Offered Securities not purchased by the Stockholders or any other person or persons in accordance with Section 7(d) may not be sold or otherwise disposed of until they are again offered to the Stockholders under the procedures specified in Sections 7(a), (c) and (d). (f) The rights of the Stockholders under this Section 7 shall not apply to the following securities (the "Excluded Securities"): (i) (A) up to 10,000,000 shares (as adjusted equitably for stock dividends, stock splits, combinations, etc.) of Common Stock issuable upon exercise of stock options granted to officers, employees or directors of the Company or its subsidiaries pursuant to and in accordance with any Employee Plan duly authorized by the Board and/or the appropriate committee thereof, (B) shares of Common Stock issued upon conversion of shares of Series C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock and Series F Preferred Stock and (C) shares of Common Stock issued upon exercise of the Warrants, including in the case of (A), (B) and (C), any additional shares of Common Stock as may be issued by virtue of antidilution provisions, if any, applicable to such options or shares, as the case may be; (ii) Stock issued as a stock dividend or upon any stock split or other subdivision or combination of shares of Stock; (iii) Stock issued as part of a Qualified Public Offering; (iv) Common Stock issued upon conversion of convertible securities outstanding on the date of this Agreement and disclosed on the appropriate Schedule to the Securities Purchase Agreement; (v) Common Stock or other equity securities or instruments exercisable for or convertible into equity securities issued as part of a strategic arrangement or alliance by the Company or its Subsidiaries to building licensors or landlords, carriers, joint venture partners, vendors (other than equipment vendors and software vendors), consultants, lessors or lenders, and securities or instruments issued in connection with acquisitions, as each such transaction is approved by the Board of the Company; provided, that such issuances do not, in the aggregate, involve the issuance of securities accounting for in excess of five percent (5%) of the fully diluted outstanding Common Stock of the Company; (vi) 426,333 shares of Series H Preferred Stock issued or to be issued to Nortel Networks Inc. (and shares of Common Stock to be issued upon conversion thereof); and (vii) 62,500 shares of Series I Preferred Stock issued or to be issued to Nortel Networks Inc. (and shares of Common Stock to be issued upon conversion thereof).

Emptive Rights. (a) Except in the case of Excluded Securities, the Company shall not issue, sell or exchange, agree to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, any (i) Stock, (ii) any other equity security of the Company, (iii) any debt security of the Company which by its terms is convertible into or exchangeable for any equity security of the Company or has any other equity feature, (iv) any security of the Company that is a combination of a debt and equity security or (v) any option, warrant or other right to subscribe for, purchase or otherwise acquire any security of the Company specified in the foregoing clauses (i) through (iv), unless in each case the Company shall have first offered to sell such securities to the Stockholders (the "Offered Securities"), at each Stockholder's respective Proportionate Percentage at a price and on such other terms and conditions as shall have been specified by the Company in writing delivered to each Stockholder (the "Offer"), which Offer by its terms shall remain open and irrevocable for a period of 30 days from the date it is delivered by the Company to the Stockholder. (b) The Company may specify in the Offer that all or a minimum amount of the Offered Securities must be sold in such offering (to the Stockholders and/or any third parties pursuant to Section 7(d)), in which case any Notice of Acceptance (as defined below) shall be deemed conditioned upon (i) receipt of Notices of Acceptance of all or such minimum amount, as applicable, of the Offered Securities and/or (ii) the sale of all, or such minimum amount, as applicable, of the Offered Securities pursuant to Section 7(d). (c) Notice of the Stockholder's intention to accept, in whole or in part, an Offer shall be evidenced by a writing signed by such Stockholder and delivered to the Company prior to the end of the 30-day period of such Offer, setting forth such portion of the Offered Securities the Stockholders elect to purchase (the "Notice of Acceptance"). (d) In the event that Notice of Acceptance is not given by the Stockholders in respect of all the Offered Securities, the Company shall have 120 days from the expiration of the foregoing 30-day period to sell all or any part of such Offered Securities as to which Notice of Acceptances have not been given by the Stockholders (the "Refused Securities") to any other person or persons, but only upon terms and conditions in all material respects, including, without limitation, unit price and interest rates, which are no more favorable to such other person or persons and no less favorable to the Company than those set forth in the Offer. Upon the closing, which shall include full payment to the Company, of the sale to such other person or persons of all the Refused Securities, the Stockholders shall purchase from the Company, and the Company shall sell to the Stockholders, the Offered Securities in respect of which Notice of Acceptances were delivered to the Company by the Stockholders, at the terms specified in the Offer. (e) In each case, any Offered Securities not purchased by the Stockholders or any other person or persons in accordance with Section 7(d) may not be sold or otherwise disposed of until they are again offered to the Stockholders under the procedures specified in Sections 7(a), (c) and (d). (f) The rights of the Stockholders under this Section 7 shall not apply to the following securities (the "Excluded Securities"): (i) (A) up to 10,000,000 5,000,000 shares (as adjusted equitably for stock dividends, stock splits, combinations, etc.) of Common Stock issuable upon exercise of stock options granted to officers, employees or directors of the Company or its subsidiaries pursuant to and in accordance with any Employee Plan duly authorized by the Board and/or the appropriate committee thereof, (B) shares of Common Stock issued upon conversion of shares of Series C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock and Series F Preferred Stock and (C) shares of Common Stock issued upon exercise of the Warrants, including in the case of (A), (B) and (C), any additional shares of Common Stock as may be issued by virtue of antidilution provisions, if any, applicable to such options or shares, as the case may be; (ii) Stock issued as a stock dividend or upon any stock split or other subdivision or combination of shares of Stock; (iii) Stock issued as part of a Qualified Public Offering;; and (iv) Common Stock issued upon conversion of convertible securities outstanding on the date of this Agreement and disclosed on the appropriate Schedule to the Securities Purchase Agreement; (v) Common Stock or other equity securities or instruments exercisable for or convertible into equity securities issued as part of a strategic arrangement or alliance by the Company or its Subsidiaries to building licensors or landlords, carriers, joint venture partners, vendors (other than equipment vendors and software vendors), consultants, lessors or lenders, and securities or instruments issued in connection with acquisitions, as each such transaction is approved by the Board of the Company; provided, that such issuances do not, in the aggregate, involve the issuance of securities accounting for in excess of five percent (5%) of the fully diluted outstanding Common Stock of the Company; (vi) 426,333 shares of Series H Preferred Stock issued or to be issued to Nortel Networks Inc. (and shares of Common Stock to be issued upon conversion thereof); and (vii) 62,500 shares of Series I Preferred Stock issued or to be issued to Nortel Networks Inc. (and shares of Common Stock to be issued upon conversion thereof).

Emptive Rights. (a) Except as provided in the case of Excluded Securitiessubsection (b), the Company shall not issue, sell or exchange, agree to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, any (i) Stock, (ii) any other equity security of the Company, (iii) any debt security of the Company which by its terms is convertible into or exchangeable for any equity security of the Company or has any other equity feature, (iv) any security of the Company that is a combination of a debt and equity security or (v) any option, warrant or other right to subscribe for, purchase or otherwise acquire any security of the Company specified in the foregoing clauses (i) through (iv), unless in each case the Company Holders shall have first offered to sell such securities pre-emptive rights with respect to the Stockholders (the "Offered Securities"), at each Stockholder's respective Proportionate Percentage at a price and on such other terms and conditions as shall have been specified issuance by the Company in writing delivered Corporation of any of its securities, and the Corporation shall, prior to any proposed issuance by the Corporation of any of its securities, offer to each Stockholder (Holder by written notice the "Offer")right, which Offer by its terms shall remain open and irrevocable for a period of 30 days from 15 Business Days, to purchase, for cash at an amount equal to the date it price or other consideration for which such securities are proposed to be issued, the portion of the securities proposed to be issued determined by dividing the number of shares of Common Stock into which the Series A Preferred Stock is delivered then convertible by the Company to the Stockholdernumber of shares of Common Stock then outstanding (treating as outstanding for this purpose all shares of Common Stock issuable on exercise, conversion or exchange of outstanding Convertible Securities). (b) The Company may specify in the Offer Subsection (a) shall not apply (1) to debt securities that all are neither Convertible Securities nor issued as part of a transaction that includes equity securities or a minimum amount of the Offered Securities must be sold in such offering Convertible Securities; or (2) to the Stockholders and/or any third parties securities issued (A) pursuant to Section 7(d))an Exempt Issuance, in which case any Notice of Acceptance (B) as defined below) shall be deemed conditioned upon (i) receipt of Notices of Acceptance consideration for the acquisition from an unaffiliated third party of all or such minimum amount, as applicable, part of the Offered Securities and/or another business (ii) the sale whether by purchase of allstock or assets or otherwise), or such minimum amount, as applicable, of the Offered Securities pursuant to (C) in a transaction described in Section 7(d8(a). (c) Notice of the StockholderThe Corporation's intention to accept, in whole or in part, an Offer shall be evidenced by a writing signed by such Stockholder and delivered written notice to the Company Holders shall describe the securities proposed to be issued by the Corporation and specify the number, price and payment terms. Each Holder may accept the Corporation's offer as to the full number of securities covered by subsection (a) or any lesser number, by written notice thereof given by it to the Corporation and to the other Holders prior to the end expiration of the 30aforesaid 15 Business Day period, in which event the Corporation shall promptly sell and each Holder shall buy, upon the terms specified, the number of securities agreed to be purchased by such Holder. The Corporation shall be free at any time prior to 120 days after the date of its notice of offer to the Holders, to offer and sell to any third party or parties the securities not agreed by the Holders to be purchased by them, at a price and on payment terms no less favorable to the Corporation than those specified in such notice of offer to the Holders. However, if such third party sale or sales are not consummated within such 90-day period, the Corporation shall not sell such securities as shall not have been purchased within such period of such Offer, setting forth such portion of the Offered Securities the Stockholders elect to purchase (the "Notice of Acceptance")without again complying with this Section. (d) In If the event Holders in the aggregate elect to purchase more securities than they are entitled to purchase under subsection (a), each Holder shall purchase such securities (1) in the proportion that Notice all electing Holders shall agree among themselves in writing, notice of Acceptance is not which shall be given by the Stockholders in respect of all the Offered Securities, the Company shall have 120 days from the expiration of the foregoing 30-day period to sell all or any part of such Offered Securities as to which Notice of Acceptances have not been given by the Stockholders (the "Refused Securities") to any other person or persons, but only upon terms and conditions in all material respects, including, without limitation, unit price and interest rates, which are no more favorable to such other person or persons and no less favorable writing to the Company Corporation not later than those set forth one business day before the issuance, sale and purchase is scheduled to be completed, or (2) failing such agreement in the Offer. Upon proportion that the closing, which shall include full payment amount of securities that such Holder elects to purchase bears to the Company, amount of the sale securities elected to such other person or persons of all the Refused Securities, the Stockholders shall purchase from the Company, and the Company shall sell to the Stockholders, the Offered Securities in respect of which Notice of Acceptances were delivered to the Company by the Stockholders, at the terms specified in the Offer. (e) In each case, any Offered Securities not be purchased by the Stockholders or any other person or persons in accordance with Section 7(d) may not be sold or otherwise disposed of until they are again offered to the Stockholders under the procedures specified in Sections 7(a), (c) and (d)all Holders. (f) The rights of the Stockholders under this Section 7 shall not apply to the following securities (the "Excluded Securities"): (i) (A) up to 10,000,000 shares (as adjusted equitably for stock dividends, stock splits, combinations, etc.) of Common Stock issuable upon exercise of stock options granted to officers, employees or directors of the Company or its subsidiaries pursuant to and in accordance with any Employee Plan duly authorized by the Board and/or the appropriate committee thereof, (B) shares of Common Stock issued upon conversion of shares of Series C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock and Series F Preferred Stock and (C) shares of Common Stock issued upon exercise of the Warrants, including in the case of (A), (B) and (C), any additional shares of Common Stock as may be issued by virtue of antidilution provisions, if any, applicable to such options or shares, as the case may be; (ii) Stock issued as a stock dividend or upon any stock split or other subdivision or combination of shares of Stock; (iii) Stock issued as part of a Qualified Public Offering; (iv) Common Stock issued upon conversion of convertible securities outstanding on the date of this Agreement and disclosed on the appropriate Schedule to the Securities Purchase Agreement; (v) Common Stock or other equity securities or instruments exercisable for or convertible into equity securities issued as part of a strategic arrangement or alliance by the Company or its Subsidiaries to building licensors or landlords, carriers, joint venture partners, vendors (other than equipment vendors and software vendors), consultants, lessors or lenders, and securities or instruments issued in connection with acquisitions, as each such transaction is approved by the Board of the Company; provided, that such issuances do not, in the aggregate, involve the issuance of securities accounting for in excess of five percent (5%) of the fully diluted outstanding Common Stock of the Company; (vi) 426,333 shares of Series H Preferred Stock issued or to be issued to Nortel Networks Inc. (and shares of Common Stock to be issued upon conversion thereof); and (vii) 62,500 shares of Series I Preferred Stock issued or to be issued to Nortel Networks Inc. (and shares of Common Stock to be issued upon conversion thereof).

Emptive Rights. (a) Except in the case of Excluded SecuritiesThe Company shall, prior to any issuance by the Company shall not issueof any of its securities (other than debt securities with no equity feature and shares issued pursuant to the Series G Purchase Agreement of even date hereof), sell offer to each holder of Preferred Stock and to the Founder (so long as he owns any Shares) by written notice the right, for a period of fifteen (15) days, to purchase its or exchangehis pro-rata share (determined on a fully diluted and as converted basis, agree to issuebased on the number of shares of Stock into which the shares of Preferred Stock held by any holder could be converted on the date of such notices, sell or exchange, or reserve or set aside for issuance, sale or exchange, any (i) Stock, (ii) any other equity security and assuming the conversion of all Preferred Stock into Common Stock and the exercise of all options and warrants as of the Company, (iiidate of any such notice) any debt security of the Company which by its terms is convertible into or exchangeable for any equity security of the Company or has any other equity feature, (iv) any security of the Company that is a combination of a debt and equity security or (v) any option, warrant or other right to subscribe for, purchase or otherwise acquire any security of the Company specified in the foregoing clauses (i) through (iv), unless in each case the Company shall have first offered to sell such securities proposed to the Stockholders be issued (the "Offered Securities")) for cash at an amount equal to the price or other consideration for which such Offered Securities are to be issued; provided, at each Stockholder's respective Proportionate Percentage at however, that the pre-emptive rights pursuant to this Section 12 shall not apply to securities issued, (A) upon conversion of any of the Preferred Stock into Common Stock, (B) as a price and on stock dividend or upon any subdivision of shares of Common Stock, provided that the securities issued pursuant to such stock dividend or subdivision are limited to additional shares of Common Stock, (C) in connection with any merger or consolidation of the Company with another corporation or other terms and conditions entity or as shall have been specified consideration for the acquisition (whether by the Company in writing delivered to each Stockholder (or any of its subsidiaries of the "Offer"stock or assets of any other entity), which Offer by its terms shall remain open and irrevocable for (D) pursuant to a period Qualified Public Offering, (E) pursuant to the issuance of 30 days shares of Common Stock or the exercise of options, warrants or similar securities to purchase Common Stock, presently outstanding or hereafter issued or granted pursuant to the Company's 1996 Incentive Stock Plan, as amended from the date it is delivered time to time or pursuant to any similar plan approved by the Company Board of Directors for the purpose of using equity securities to provide incentives to persons or entities whom the Board of Directors determines can help the Corporation achieve its objective, not to exceed in the aggregate 7,200,000 shares and the issuance of, or grant of options or warrants to purchase up to 300,000 shares of Common Stock pursuant to routine equipment financing transactions (each as appropriately adjusted to reflect stock splits, stock dividends, combinations of shares and the like with respect to the Stockholder. (b) The Company may specify in the Offer that all or a minimum amount of the Offered Securities must be sold in such offering (to the Stockholders and/or any third parties pursuant to Section 7(d)Common Stock), in each case, plus such additional number of shares as may from time to time be approved by the holders of at least sixty (60%) percent of the Preferred Stock voting or acting as a single class, and (F) upon the exercise of any right which case any Notice was not itself in violation of Acceptance (as defined below) the terms of this Section 12. Unless the Board of Directors of the Company shall determine otherwise, the maximum number of shares under the Company's 1996 Incentive Stock Option Plan excluded from the pre-emptive rights pursuant to the preceding sentence of this Section 12 shall be deemed conditioned upon automatically increased on January 1, 2001 and on the first calendar day of each year thereafter by a number equal to the lesser of (i) receipt 3,000,000 shares of Notices Common Stock (as appropriately adjusted to reflect stock splits, stock dividends, combinations of Acceptance of all or such minimum amount, as applicable, of shares and the Offered Securities and/or like with respect to the Common Stock) and (ii) the sale number of all, or such minimum amount, as applicable, shares of Common Stock equal to five percent (5%) of the Offered Securities issued and outstanding shares of Common Stock of the Company (calculated on a fully-diluted (including all shares issuable under the Corporation's 1996 Incentive Stock Plan) and as-converted basis); provided, that the maximum number of shares of Common Stock under the Corporation's 1996 Incentive Stock Plan excluded from adjustments pursuant to the preceding sentence of this Section 7(d). 12 shall not exceed a number of shares of Common Stock equal to twenty-five percent (c25%) Notice of the Stockholderissued and outstanding shares of Common Stock (calculated on a fully-diluted (including all shares issuable under the Corporation's intention 1996 Incentive Stock Plan) and as-converted basis). The Company's written notice to acceptthe Investors and the Founder shall describe the securities proposed to be issued by the Company and specify the number, in whole price and payment terms. The Founder and each Investor may accept the Company's offer as to the full number of securities offered to it or in partany lesser number, an Offer shall be evidenced by a writing signed written notice thereof given by such Stockholder and delivered it to the Company prior to the end expiration of the 30-aforesaid fifteen (15) day period of such Offerperiod, setting forth such portion of the Offered Securities the Stockholders elect to purchase (the "Notice of Acceptance"). (d) In the in which event that Notice of Acceptance is not given by the Stockholders in respect of all the Offered Securities, the Company shall have 120 promptly sell and such holder shall buy, upon the terms specified, the number of securities agreed to be purchased by such Purchaser. The Company shall be free at such time prior to ninety (90) days from after the expiration date of its notice of offer to the foregoing 30-day period Investors and the Founder, to sell all offer and sell, to any third party or any part of parties such Offered Securities as to which Notice of Acceptances have are not been given purchased by the Stockholders (Investors and the "Refused Securities") to any other person or personsFounder, but only upon terms and conditions in all material respects, including, without limitation, unit at a price and interest rates, which are no more favorable to such other person or persons on payment and terms no less favorable to the Company than those set forth specified in the Offer. Upon the closing, which shall include full payment to the Company, such notice of the sale offer to such other person holders. However, if such sale or persons of all the Refused Securitiessales are not consummated within such ninety (90) day period, the Stockholders shall purchase from the Company, and the Company shall not sell such Offered Securities as shall have not been purchased within such period without again complying with this Section 12. The right to purchase granted pursuant to this Section 12 shall expire immediately prior to the Stockholders, the Offered Securities in respect of which Notice of Acceptances were delivered to the Company by the Stockholders, at the terms specified in the Offer. (e) In each case, any Offered Securities not purchased by the Stockholders or any other person or persons in accordance with Section 7(d) may not be sold or otherwise disposed of until they are again offered to the Stockholders under the procedures specified in Sections 7(a), (c) and (d). (f) The rights of the Stockholders under this Section 7 shall not apply to the following securities (the "Excluded Securities"): (i) (A) up to 10,000,000 shares (as adjusted equitably for stock dividends, stock splits, combinations, etc.) first sale of Common Stock issuable upon exercise pursuant to a Qualified Public Offering. The provisions of stock options granted this Section 12 may be waived (but only as to officersthe Investors and the Founder as a group), employees amended, modified or directors terminated by written consents of the Company or its subsidiaries pursuant to and in accordance with any Employee Plan duly authorized by the Board Investors and/or the appropriate committee thereofFounder, who in the aggregate hold at least sixty (B60%) shares of Common Stock issued upon conversion percent (determined on a fully diluted as-converted basis, based on the number of shares of Series C Preferred Stock, Series D Preferred Stock, Series E Stock into which the shares of Preferred Stock and Series F Preferred Stock and (Cheld by such holders would then be converted on the date of such consents) shares of Common Stock issued upon exercise of the Warrants, Shares owned by all such stockholders (including in the case of (Athe Founder, his Permitted Transferees), (B) and (C)provided, however that any additional shares of Common Stock as may be issued by virtue of antidilution provisionssuch amendment, if any, applicable to such options modification or shares, as the case may be; (ii) Stock issued as a stock dividend or upon termination which treats any stock split or other subdivision or combination of shares of Stock; (iii) Stock issued as part of a Qualified Public Offering; (iv) Common Stock issued upon conversion of convertible securities outstanding on the date of this Agreement and disclosed on the appropriate Schedule to the Securities Purchase Agreement; (v) Common Stock or other equity securities or instruments exercisable for or convertible into equity securities issued as part of a strategic arrangement or alliance by the Company or its Subsidiaries to building licensors or landlords, carriers, joint venture partners, vendors (other than equipment vendors and software vendors), consultants, lessors or lenders, and securities or instruments issued in connection with acquisitions, as each such transaction is approved by the Board of the Company; provided, that Investors or the Founder in a discriminatory fashion shall require the written consent of such issuances do not, in the aggregate, involve the issuance of securities accounting for in excess of five percent (5%) of the fully diluted outstanding Common Stock of the Company; (vi) 426,333 shares of Series H Preferred Stock issued Investor or to be issued to Nortel Networks Inc. (and shares of Common Stock to be issued upon conversion thereof); and (vii) 62,500 shares of Series I Preferred Stock issued or to be issued to Nortel Networks Inc. (and shares of Common Stock to be issued upon conversion thereof)Founder.

Emptive Rights. (ai) Except for issuances of (A) Preferred Stock at the Closing, (B) options to acquire Common Stock pursuant to the terms of the Permitted Stock Option Plans (or Common Stock upon the exercise of such options), (C) Common Stock issued or used from treasury shares as consideration for the acquisition of another company or business as approved (to the extent necessary) in accordance with the case Articles of Excluded Incorporation (including the Certificate of Designation) and by the Board, (D) Common Stock pursuant to a Public Offering, (E) Common Stock to employees of the Company or any of its Subsidiaries pursuant to the Employee Stock Purchase Plan approved by the Company's shareholders on May 24, 2001, and as in effect on the date hereof or (F) Common Stock upon conversion or exchange of any securities directly or indirectly convertible into Common Stock, if so long as any Preferred Stock remains outstanding the Company authorizes the issuance or sale of any shares of Preferred Stock, Common Stock or any securities convertible into, exchangeable or exercisable for or containing options or rights to acquire any shares of Preferred Stock or Common Stock (collectively, "Equity Securities"), the Company shall not issue, first offer to sell to each holder of Preferred Stock a portion of such Equity Securities to be issued equal to the number of Equity Securities to be issued multiplied by the quotient obtained by dividing (1) the number of shares of Common Stock issued or exchange, agree to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, any (i) Stock, (ii) any other equity security issuable upon conversion of the Company, Preferred Stock held by such holder by (iii2) any debt security the sum of the Company which by its terms is convertible into or exchangeable for any equity security total number of shares of Common Stock then outstanding plus the Company or has any other equity feature, (iv) any security total number of the Company that is a combination of a debt and equity security or (v) any option, warrant or other right to subscribe for, purchase or otherwise acquire any security of the Company specified in the foregoing clauses (i) through (iv), unless in each case the Company shall have first offered to sell such securities to the Stockholders (the "Offered Securities"), at each Stockholder's respective Proportionate Percentage at a price and on such other terms and conditions as shall have been specified by the Company in writing delivered to each Stockholder (the "Offer"), which Offer by its terms shall remain open and irrevocable for a period of 30 days from the date it is delivered by the Company to the Stockholder. (b) The Company may specify in the Offer that all or a minimum amount of the Offered Securities must be sold in such offering (to the Stockholders and/or any third parties pursuant to Section 7(d)), in which case any Notice of Acceptance (as defined below) shall be deemed conditioned upon (i) receipt of Notices of Acceptance of all or such minimum amount, as applicable, of the Offered Securities and/or (ii) the sale of all, or such minimum amount, as applicable, of the Offered Securities pursuant to Section 7(d). (c) Notice of the Stockholder's intention to accept, in whole or in part, an Offer shall be evidenced by a writing signed by such Stockholder and delivered to the Company prior to the end of the 30-day period of such Offer, setting forth such portion of the Offered Securities the Stockholders elect to purchase (the "Notice of Acceptance"). (d) In the event that Notice of Acceptance is not given by the Stockholders in respect of all the Offered Securities, the Company shall have 120 days from the expiration of the foregoing 30-day period to sell all or any part of such Offered Securities as to which Notice of Acceptances have not been given by the Stockholders (the "Refused Securities") to any other person or persons, but only upon terms and conditions in all material respects, including, without limitation, unit price and interest rates, which are no more favorable to such other person or persons and no less favorable to the Company than those set forth in the Offer. Upon the closing, which shall include full payment to the Company, of the sale to such other person or persons of all the Refused Securities, the Stockholders shall purchase from the Company, and the Company shall sell to the Stockholders, the Offered Securities in respect of which Notice of Acceptances were delivered to the Company by the Stockholders, at the terms specified in the Offer. (e) In each case, any Offered Securities not purchased by the Stockholders or any other person or persons in accordance with Section 7(d) may not be sold or otherwise disposed of until they are again offered to the Stockholders under the procedures specified in Sections 7(a), (c) and (d). (f) The rights of the Stockholders under this Section 7 shall not apply to the following securities (the "Excluded Securities"): (i) (A) up to 10,000,000 shares (as adjusted equitably for stock dividends, stock splits, combinations, etc.) of Common Stock issuable upon exercise of stock options granted to officers, employees or directors conversion of the Company or its subsidiaries pursuant to and in accordance with any Employee Plan duly authorized by Preferred Stock plus the Board and/or the appropriate committee thereof, (B) total number of shares of Common Stock issued issuable upon conversion or exercise of shares outstanding options, rights or securities convertible into or exercisable for Common Stock or for other securities convertible into or exercisable into Common Stock at a price less than or equal to the Market Price as of Series C the date of the Company's offer (other than the Preferred Stock, Series D Preferred Stock, Series E Preferred Stock ). Each holder shall be entitled to purchase such stock or securities at the most favorable price and Series F Preferred Stock and (C) shares of Common Stock issued upon exercise on the most favorable terms as such stock or securities are to be offered to any other Persons; provided that if all Persons entitled to purchase or receive such stock or securities are required to also purchase other securities of the WarrantsCompany, including the holders exercising their rights pursuant to this paragraph shall also be required to purchase the same types of securities in the case of same ratios (A), (Bon the same terms and conditions) that such other Persons are required to purchase. The purchase price for all stock and (C), any additional shares of Common Stock as may be issued by virtue of antidilution provisions, if any, applicable securities offered to such options or shares, as the case may be;holders hereunder shall be payable in cash. (ii) In order to exercise its purchase rights hereunder, the holder of Preferred Stock issued as must within 15 business days after receipt of written notice from the Company describing in reasonable detail the stock or securities being offered, the purchase price thereof, the payment terms and such holder's percentage allotment, deliver a stock dividend or upon any stock split or other subdivision or combination of shares of Stock;written notice to the Company describing such holder's election hereunder. (iii) Upon the expiration of the offering period described above, the Company shall be entitled to sell such stock or securities which the holders of Preferred Stock issued as part of have not elected to purchase during the 180 days following such expiration at a Qualified Public Offering; (iv) Common Stock issued upon conversion of convertible securities outstanding price not less and on the date of this Agreement other terms and disclosed on the appropriate Schedule conditions not more favorable to the Securities Purchase Agreement; (v) Common Stock purchasers thereof than that offered to such holders. Any stock or other equity securities offered or instruments exercisable for or convertible into equity securities issued as part of a strategic arrangement or alliance sold by the Company or its Subsidiaries after such 180-day period must be reoffered to building licensors or landlords, carriers, joint venture partners, vendors (other than equipment vendors and software vendors), consultants, lessors or lenders, and securities or instruments issued in connection with acquisitions, as each such transaction is approved by the Board holders of the Company; provided, that such issuances do not, in the aggregate, involve the issuance of securities accounting for in excess of five percent (5%) of the fully diluted outstanding Common Stock of the Company; (vi) 426,333 shares of Series H Preferred Stock issued or pursuant to be issued to Nortel Networks Inc. (and shares the terms of Common Stock to be issued upon conversion thereof); and (vii) 62,500 shares of Series I Preferred Stock issued or to be issued to Nortel Networks Inc. (and shares of Common Stock to be issued upon conversion thereof).this Section 4F.