Common use of First Offer Clause in Contracts

First Offer. (i) Except as otherwise provided in this Section 12 and so long as at least twenty-five percent (25%) of the Warrant remains outstanding and in IIT’s possession, before the Company may offer to issue and sell any shares of Common Stock or any securities convertible or exercisable into Common Stock, or other rights to acquire Common Stock (collectively, the “Offered Securities”), the Company is required to first make an offer to IIT (the “First Offer”) in writing and in accordance with Section 15 (the “Offer Notice”), to purchase, at a per share price (the “Offer Price”) and on terms chosen by the Company, a percentage of each class or type of the Offered Securities equal to (x) the number of Shares then held by IIT plus the number of shares of Common Stock underlying any outstanding and unexpired portion of the Warrant then held by IIT, divided by (y) the number of then outstanding shares of Common Stock on a fully diluted basis (assuming the exercise of all outstanding options, warrants and rights and the conversion into Common Stock of all convertible securities) (such percentage shall hereinafter be referred to as the “IIT Share”). (ii) Subject to Section 12(c) below, if IIT does not deliver to the Company written notice of acceptance of any offer made pursuant to Section 12(a)(i) within thirty (30) days after IIT’s receipt of the First Offer Notice, IIT shall be deemed to have waived its rights to purchase the Offered Securities, which are the subject of the First Offer, and the Company shall be entitled to issue and sell the Offered Securities at the Offer Price, or at such other price which is no less than ninety percent (90%) of the Offer Price, to any third party that is not an Affiliate of the Company at any time during the period of nine (9) months following the date of delivery of the Offer Notice by the Company to IIT, without the obligation to provide any further offers or notices to IIT.

First Offer. Except for (i) Except as otherwise provided in this Section 12 and so long as at least twentyTag-five percent (25%) of the Warrant remains outstanding and in IIT’s possession, before the Company may offer to issue and sell any shares of Common Stock or any securities convertible or exercisable into Common Stock, or other rights to acquire Common Stock (collectively, the “Offered Securities”), the Company is required to first make an offer to IIT (the “First Offer”) in writing and Along Sales made in accordance with Section 15 2.4, (ii) Drag-Along 100% Sales made in accordance with Article III, or (iii) the ninety (90) day period immediately following the Effective Time (as defined in the Merger Agreement), no Financing Party shall Transfer any Shares except as specifically permitted by this Section 2.8. If at any time any Financing Party desires to Transfer all or any part of the Shares held by such Person (other than in accordance with Section 2.8.4) (a "FINANCING SELLING PARTY"), then such Financing Selling Party shall deliver written notice of its desire to sell such Shares (a "NOTICE OF INTENTION"), accompanied by a copy of a proposal relating to such sale (the “Offer Notice”"SALE PROPOSAL"), to purchase, at a per share price (each of the “Offer Price”) Purchaser and on terms chosen by the Company, a percentage setting forth such Financing Selling Party's desire to make such sale, the number and class of each class or type of Shares proposed to be transferred (the "OFFERED SECURITIES"), the cash price at which such Financing Selling Party proposes to sell the Offered Securities equal to (xthe "FIRST OFFER PRICE") the number of Shares then held by IIT plus the number of shares of Common Stock underlying any outstanding and unexpired portion other terms applicable thereto. Upon receipt of the Warrant then held by IITNotice of Intention, divided by (y) the number of then outstanding shares of Common Stock on a fully diluted basis (assuming the exercise of all outstanding options, warrants and rights Purchaser and the conversion into Common Stock of Company shall then have the right to purchase at the First Offer Price and on the other terms specified in the Sale Proposal, all, but not less than all convertible securities) (such percentage unless the Financing Selling Party shall hereinafter be referred to as the “IIT Share”). (ii) Subject to Section 12(c) below, if IIT does not deliver have consented to the purchase of less than all of such Offered Securities). The rights of the Purchaser and the Company written notice of acceptance of any offer made pursuant to this Section 12(a)(i) 2.8.2 shall be exercisable by the delivery of notice to the Financing Selling Party (the "NOTICE OF EXERCISE"), within thirty (30) calendar days after IIT’s receipt of the First Offer Notice, IIT shall be deemed to have waived its rights to purchase the Offered Securities, which are the subject of the First Offer, and the Company shall be entitled to issue and sell the Offered Securities at the Offer Price, or at such other price which is no less than ninety percent (90%) of the Offer Price, to any third party that is not an Affiliate of the Company at any time during the period of nine (9) months following from the date of delivery of the Offer Notice by of Intention. If the Financing Selling Party receives more than one Notice of Exercise within such thirty (30) day period, the priority as among the Purchaser and the Company to IITmatch the First Offer Price and purchase such Shares shall be, without FIRST, the obligation Purchaser and, SECOND, the Company. The Notice of Exercise shall state that the Purchaser or the 15 Company, as the case may be, is willing to provide purchase the Offered Securities on the terms specified in the Sale Proposal. A copy of such Notice of Exercise shall also be delivered by the Purchaser or the Company, as the case may be, to each of the Purchaser or the Company, as the case may be. The rights of the Purchaser and the Company pursuant to this Section 2.8.2 shall terminate if unexercised thirty (30) calendar days after the date of delivery of the Notice of Intention. In the event that the Purchaser or the Company exercise their rights to purchase all (unless the Financing Selling Party shall have consented to the purchase of less than all) of the Offered Securities in accordance with this Section 2.8.2, then the Selling Financing Party must sell the Offered Securities to the Purchaser and/or the Company, as the case may be, within thirty (30) calendar days from the date of delivery of the Notice of Exercise received by the Selling Financing Party, on such date as shall be determined by the Financing Selling Party by written notice thereof. If all notices required pursuant to this Section 2.8.2 have been duly given and the Purchaser and the Company do not exercise their respective options to purchase the Offered Securities at the First Offer Price, then the Financing Selling Party shall have the right, subject to compliance by the Financing Selling Party with the provisions of Section 2.3 hereof, for a period of ninety (90) calendar days from the earlier of (i) the expiration of the option period pursuant to this Section 2.8.2 with respect to such Sale Proposal or (ii) the date on which such Financing Selling Party receives notice from the Purchaser or the Company that they will not exercise all of the option granted pursuant to this Section 2.8.2, to sell to any further offers third party all, but not less than all, of the Offered Securities remaining unsold at a price of not less than the First Offer Price and on terms not less favorable to the Financing Selling Party than, the other terms specified in the Sale Proposal. Notwithstanding the foregoing, in the event that the Financing Selling Party desires to Transfer Senior Subordinated Notes of the Company due 2010 ("Notes") or notices Warrants together with the Offered Securities, such Notes and/or Warrants shall constitute "Offered Securities" for purposes of this Section 2.8.2. In such event, neither the Purchaser nor the Company may exercise their respective option to IITpurchase any of the Shares or Warrants constituting Offered Securities unless all of the Notes and Warrants included in the Offered Securities are purchased as well.

First Offer. Seller hereby grants to Buyer a right of first ------------ offer to purchase from Seller the undeveloped parcels of real property (ieach a "ROFO Parcel") Except as otherwise provided in this Section 12 adjoining the Projects identified on Schedule S-12.1 hereof which ----------- ------ Seller proposes to resell after the Agreement Date and so long as at least twenty-five percent before the first to occur (25%the "First Offer Term") of (a) five (5) years after the Warrant remains outstanding Closing Date, (b) ------------------ completion of construction thereon of a building or buildings suitable for occupancy or (c) the sale by the Buyer of all or substantially all of the Project to which the ROFO Parcel is related; it being understood and in IIT’s possession, before agreed that the Company may right of first offer hereunder will terminate with respect to issue and sell any shares of Common Stock all or any securities convertible or exercisable into Common Stock, or other rights to acquire Common Stock portion of a ROFO Parcel for which no Resale Offer (collectively, the “Offered Securities”), the Company as hereinafter defined) is required to first make an offer to IIT (the “First Offer”) in writing and in accordance with Section 15 (the “Offer Notice”), to purchase, at a per share price (the “Offer Price”) and on terms chosen by the Company, a percentage of each class or type effect as of the Offered Securities equal to (x) the number of Shares then held by IIT plus the number of shares of Common Stock underlying any outstanding and unexpired portion of the Warrant then held by IIT, divided by (y) the number of then outstanding shares of Common Stock on a fully diluted basis (assuming the exercise of all outstanding options, warrants and rights and the conversion into Common Stock of all convertible securities) (such percentage shall hereinafter be referred to as the “IIT Share”). (ii) Subject to Section 12(c) below, if IIT does not deliver to the Company written notice of acceptance of any offer made pursuant to Section 12(a)(i) within thirty (30) days after IIT’s receipt expiration of the First Offer Term. Before Seller offers, or enters into any agreement, to sell any ROFO Parcel, Seller will first deliver to Buyer written notice of Seller's intention (a "ROFO Offer"), the identity of the ---------- purchaser and the price (the "Offer Price") and terms at and upon which Seller ------------ proposes to sell the ROFO Parcel , and Buyer will have a period of twenty (20) days after receipt thereof (the "Offer Period") within which to deliver to ------------- Seller written notice (a "Purchase Notice, IIT shall be deemed to have waived its rights ") of Buyer's agreement to purchase the Offered Securities--------------- ROFO Parcel from Seller in accordance with the terms and conditions set forth in the Resale Offer, for a cash purchase price equal to the Offer Price. If Buyer fails timely to deliver a Purchase Notice, or waives its right to purchase, within the Offer Period, Seller may sell the ROFO Parcel at any time within a period (the "Sale Period") of six (6) months after expiration of the Offer ------------ Period at a price and upon terms no more favorable to the purchaser than those set forth in the ROFO Offer. If, at any time and from time to time within the Sale Period, Seller proposes to sell the ROFO Parcel at a price or upon terms more favorable to the purchaser than those set forth in the ROFO Offer, Seller will deliver notice to Buyer of such price and terms and Buyer will have a period of fifteen (15) days after receipt of such notice within which are to submit to Seller a Purchase Notice as set forth above; and if Seller has not sold the subject ROFO Parcel within the Sale Period, Buyer's right of first offer herein set forth will be reinstated and remain in full force and effect for the remainder of the First Offer, and the Company shall be entitled Offer Term as if Seller had not theretofore made an original ROFO Offer to issue and sell the Offered Securities at the Offer Price, or at such other price which is no less than ninety percent (90%) of the Offer Price, to any third party that is not an Affiliate of the Company at any time during the period of nine (9) months following the date of delivery of the Offer Notice by the Company to IIT, without the obligation to provide any further offers or notices to IITBuyer.

First Offer. (ia) Except as otherwise provided in this Section 12 and so So long as at least twenty-five percent (25%) any shares of the Warrant remains outstanding and in IIT’s possessionSeries B Preferred Stock are outstanding, before if the Company may offer proposes to issue and sell any shares of Common Stock or any securities security convertible into or exercisable into exchangeable for shares of Common Stock, or other rights to acquire any unit of securities which includes shares of Common Stock or any security convertible into or exchangeable or exercisable for shares of Common Stock (collectivelyin the case of securities convertible into or exchangeable or exercisable for shares of Common Stock, the “Offered Securities”whether or not so convertible or exchangeable or exercisable only upon payment of additional consideration), the Company is required to first make an offer to IIT (the “First Offer”) in writing and each case in accordance connection with Section 15 (the “Offer Notice”), to purchase, at a per share price (the “Offer Price”) and on terms chosen financing by the Company, subject to Section 5.5 hereof (an "OFFERING"), then the Company shall prior thereto or simultaneously therewith offer to each Investor a percentage of each class or type the securities being issued in the Offering (the "OFFERING SECURITIES") equal to such Investor's then percentage ownership of the Offered Securities equal to (x) aggregate of the number of Shares then held by IIT plus the number of shares of Underlying Common Stock underlying any outstanding and unexpired portion the Common Stock (such Investor's "PERCENTAGE SHARE"). Such offer shall be made by written notice setting forth the quantity and description of the Warrant then held by IITsecurity proposed to be issued, divided by (y) the number of then outstanding shares of Common Stock on a fully diluted basis (assuming the exercise of all outstanding options, warrants and rights price to be received in exchange therefor and the conversion into Common Stock proposed date, time and place of all convertible securities) the closing of the Offering (such percentage the "OFFERING NOTICE"). The Offering Notice shall hereinafter be referred delivered by hand or by first-class, certified or overnight mail, postage prepaid, or by telecopier, by the Company to as the “IIT Share”)each Investor. (iib) Subject to Section 12(c) belowEach such Investor shall thereupon be entitled, if IIT does not deliver to the Company written notice of acceptance of any offer made pursuant to Section 12(a)(i) within for a period ending thirty (30) days after IIT’s receipt the date of the First Offer Offering Notice (the "ELECTION PERIOD"), to elect to purchase, at the price and upon the terms set forth in the Offering Notice, IIT shall be deemed all or a portion of such Investor's Percentage Share of the Offering Securities by notice to have waived its rights the Company during the Election Period. (c) Each Investor electing to purchase the Offered Securities, which are the subject its Percentage Share of the First OfferOffering Securities pursuant to this Section 5.1 (a "PARTICIPATING INVESTOR") shall, and concurrently with the closing of any such Offering, deliver to the Company shall be entitled an official bank or certified check for the appropriate amount to issue and sell the Offered Securities at Company by hand delivery or by first-class, certified or overnight mail, postage prepaid addressed to the Offer Price, Company's principal office (or at such other price which is no less than ninety percent (90%) of the Offer Price, to any third party that is not an Affiliate of place as the Company may designate at any time during least ten (10) days prior to the period closing of nine (9) months following the date of delivery of the Offer Notice by such Offering); and simultaneously therewith the Company shall issue and deliver to IITeach Participating Investor certificates representing the Offering Securities being purchased by such Participating Investor. The Company covenants and agrees that all Offering Securities will, without upon issuance and payment therefor, be duly and validly issued and outstanding, fully paid and non-assessable and free from all taxes, liens, and charges with respect to the obligation to provide any further offers or notices to IITissue thereof.

First Offer. (ia) Except as otherwise provided SBC acknowledges and agrees that, in this Section 12 and so long as at least twenty-five percent (25%) of the Warrant remains outstanding and in IIT’s possessionevent it shall, before the Company may offer to issue and sell any shares of Common Stock or any securities convertible or exercisable into Common Stock, or other rights to acquire Common Stock (collectively, the “Offered Securities”), the Company is required to first make an offer to IIT (the “First Offer”) in writing and in accordance with Section 15 (the “Offer Notice”), to purchase, at a per share price (the “Offer Price”) and on terms chosen by the Company, a percentage of each class or type of the Offered Securities equal to (x) the number of Shares then held by IIT plus the number of shares of Common Stock underlying any outstanding and unexpired portion of the Warrant then held by IIT, divided by (y) the number of then outstanding shares of Common Stock on a fully diluted basis (assuming the exercise of all outstanding options, warrants and rights and the conversion into Common Stock of all convertible securities) (such percentage shall hereinafter be referred to as the “IIT Share”). (ii) Subject to Section 12(c) below, if IIT does not deliver to the Company written notice of acceptance of any offer made pursuant to Section 12(a)(i) within thirty (30) days after IIT’s receipt of the First Offer Notice, IIT shall be deemed to have waived its rights to purchase the Offered Securities, which are the subject of the First Offer, and the Company shall be entitled to issue and sell the Offered Securities at the Offer Price, or at such other price which is no less than ninety percent (90%) of the Offer Price, to any third party that is not an Affiliate of the Company at any time during the period of nine (9) months following beginning on the Adjustment Date and ending on the date of delivery termination of the SBC Warburg EPI Agreement, desire, other than in connection with the Initial Public Offering, to Sell Class B Shares acquired pursuant to this Agreement, SBC shall first offer to sell any such Class B Shares or Options in respect thereof to PSC for a price, including an amount equal to the fair market value of any consideration not paid in cash, and upon terms, specified in writing by SBC and delivered to PSC (each such offer, a "First Offer"), provided that SBC shall not be required to deliver a First Offer Notice to PSC in respect of Class B Shares being Sold by SBC in any widely-disbursed offering or in any transaction that complies with Rule 144 (or any successor thereto) under the Company Securities Act, or in respect of up to IIT200,000 Class B Shares which may be Sold to employees of SBC or its Affiliates. (b) fair market value of any consideration not paid in cash, without and upon the obligation terms contained in such First Offer. The notice of acceptance by PSC shall specify a date for the closing of the purchase, which shall be not more than twenty (20) days after the date of such notice. At such closing, PSC will deliver the purchase price specified in Section 4.4(a) to provide SBC in immediately available funds against receipt by PSC from SBC of one (1) or more certificates representing the Class B Shares described herein or the cancellation of Options in respect thereof, which Class B Shares or Options in respect thereof shall be free of any further offers Encumbrances attributable to any action taken by SBC or notices any of its Affiliates. (c) In the event PSC rejects or does not accept a First Offer within twenty (20) days of its receipt, SBC shall be entitled to IIToffer the Class B Shares referred to in the First Offer to third parties for a price and upon other terms and conditions at least as favorable to SBC as those set forth in the First Offer. (d) If any third party shall accept an offer by SBC's complying with the requirements of Section 4.4(c), then PSC's right to purchase or otherwise acquire the Class B Shares subject to such offer or Options in respect thereof shall be terminated; provided that in the event such acceptance does not result in a sale or acquisition of such Class B Shares within three (3) months of the rejection or non-acceptance of the First Offer by PSC, then SBC shall not Sell such Class B Shares to any third party unless such Shares or Options in respect thereof are offered again to PSC as provided in Section 4.4(a). (e) The rights set forth in this Section 4.4 shall not be assignable by PSC except in whole and to a Wholly-Owned Subsidiary of PSC.

First Offer. (ia) Except as otherwise provided in this Section 12 and so long as If at least twenty-five percent (25%) any time any of the Warrant remains outstanding and in IIT’s possessionKey Stockholders wishes to sell, before assign, transfer or otherwise dispose of any or all of such Key Stockholder's Shares pursuant to the terms of a bona fide offer received from a third party, such Key Stockholder shall submit a written offer to sell such Shares to the Company may offer on terms and conditions, including price, not less favorable to issue and the Company than those on which such Key Stockholder proposes to sell any shares such Shares to such third party (the "First Offer"). The First Offer shall disclose the identity of Common Stock the proposed purchaser or any securities convertible or exercisable into Common Stock, or other rights to acquire Common Stock (collectivelytransferee, the “Shares proposed to be sold or transferred (the "Offered Securities”Shares"), the Company is required agreed terms of the sale or transfer and any other material facts relating to first make an offer to IIT the sale or transfer. Within fifteen (15) days after receipt of the “First Offer”) in writing and in accordance with Section 15 (, the “Offer Notice”), Company shall give notice to purchase, at a per share price (the “Offer Price”) and on terms chosen by the Company, a percentage Key Stockholder of each class its intent to purchase all or type any portion of the Offered Securities Shares on the same terms and conditions as set forth in the First Offer. If the Company does not elect to purchase all of the Offered Shares, then there shall be no right to purchase shares pursuant to this Section 3(a). The Company shall act upon the First Offer as soon as practicable after receipt of the First Offer, and in any event within fifteen (15) days after receipt thereof. In the event that the Company shall elect to purchase all or part of the Offered Shares covered by the First Offer, the Company shall communicate in writing such election to purchase to whichever of the Key Stockholders has made the First Offer, which communication shall be delivered by hand or mailed to such Key Stockholder at the address set forth on SCHEDULE II hereto and as described in Section 7 below and shall, when taken in conjunction with the First Offer be deemed to constitute a valid, legally binding and enforceable agreement for the sale and purchase of the Shares covered thereby. In the event that the Company does not purchase all of the Offered Shares offered by the Key Stockholder pursuant to and within thirty (30) days after the First Offer, the agreement to purchase the Offered Shares shall be deemed null and void. Notwithstanding the provisions of this subsection (a), the Key Stockholder proposing to sell the Offered Shares shall have the discretion to allow the Company to buy a portion of such Offered Shares. (b) If the Company fails to purchase all or, subject to the Key Stockholder's consent, any part of the Offered Shares, the Key Stockholder shall submit a written offer (the "Second Offer") to sell such Offered Shares (the "Remaining Shares") to the Preferred Shareholders on terms and conditions, including price, not less favorable to the Preferred Shareholders than those on which such Key Stockholder proposes to sell such Remaining Shares to the third party. The Second Offer shall also disclose the identity of the proposed purchaser or transferee, the Remaining Shares proposed to be sold or transferred, the agreed terms of the sale or transfer and any other material facts relating to the sale or transfer. Within fifteen (15) days after receipt of the Second Offer, the Preferred Shareholders shall give notice to the Key Stockholder of their intent to purchase all or any portion of the Remaining Shares on the same terms and conditions as set forth in the Second Offer. Each Preferred Shareholder shall have the right to purchase that number of the Remaining Shares as shall be equal to (x) the number aggregate Remaining Shares multiplied by a fraction, the numerator of Shares then held by IIT plus which is the number of shares of Common Stock underlying any outstanding and unexpired portion of the Warrant Company then held owned by IIT, divided by such Preferred Shareholder (y) the number of then outstanding including any shares of Common Stock deemed to be owned hereunder, being a number of shares equal to that into which the Series A-1 Convertible Preferred Stock, $.01 par value per share (the "Series A-1 Preferred Stock"), Series B-1 Convertible Preferred Stock, $.01 par value per share (the "Series B-1 Preferred Stock"), Series C Convertible Preferred Stock, $.01 par value per share (the "Series C Preferred Stock"), Series D Preferred Stock, Series A-2 Convertible Preferred Stock, $.01 par value per share (the "Series A-2 Preferred Stock"), Series B-2 Convertible Preferred Stock, $.01 par value per share (the "Series B-2 Preferred Stock"), Series C-2 Convertible Preferred Stock, $.01 par value per share (the "Series C-2 Preferred Stock"), and Series D-2 Convertible Preferred Stock, $.01 par value per share (the "Series D-2 Preferred Stock"), held by such Preferred Shareholder is convertible on a fully diluted basis (assuming the exercise date of all outstanding options, warrants and rights the Second Offer) and the conversion into denominator of which is the aggregate number of shares of said Common Stock then issued and outstanding and held by (and deemed to be held by) all the Preferred Shareholders. (The amount of all convertible securities) (such percentage shares each Preferred Shareholder or Qualified Transferee, as that term is defined below, is entitled to purchase under this Section 3 shall hereinafter be referred to as its "Pro Rata Fraction"). Each Preferred Shareholder shall have the “IIT Share”). (ii) Subject right to Section 12(c) below, if IIT transfer its right to any Pro Rata Fraction or part thereof to any Qualified Transferee. In the event a Preferred Shareholder does not deliver wish to purchase or to transfer its right to purchase its Pro Rata Fraction, then any Preferred Shareholders who so elect shall have the Company written notice right to purchase, on a pro rata basis with any other Preferred Shareholders who so elect, any Pro Rata Fraction not purchased by a Preferred Shareholder or Qualified Transferee. If the Preferred Shareholders do not elect to purchase all of acceptance of any offer made the Offered Shares, then there shall be no right to purchase shares pursuant to this Section 12(a)(i3(b). Each Preferred Shareholder shall act upon the Second Offer as soon as practicable after receipt of the Second Offer, and in all events within fifteen (15) days after receipt thereof. Each Preferred Shareholder shall have the right to accept the Second Offer as to all or part of the Remaining Shares offered thereby. In the event that a Preferred Shareholder shall elect to purchase all or part of the Remaining Shares covered by the Second Offer, said Preferred Shareholder shall individually communicate in writing such election to purchase to whichever of the Key Stockholders has made the Second Offer, which communication shall be delivered by hand or mailed to such Key Stockholder at the address set forth on SCHEDULE II hereto and as described in Section 7 below and shall, when taken in conjunction with the Second Offer be deemed to constitute a valid, legally binding and enforceable agreement for the sale and purchase of the Shares covered thereby. In the event that the Preferred Shareholders do not purchase all of the Remaining Shares offered by the Key Stockholder pursuant to and within thirty (30) days after IIT’s receipt of the First Offer NoticeSecond Offer, IIT each such agreement to purchase the Remaining Shares shall be deemed to have waived its rights to purchase the Offered Securities, which are the subject of the First Offernull and void, and the Company shall such Remaining Shares may be entitled to issue and sell the Offered Securities at the Offer Price, or at sold by such other price which is no less than ninety percent (90%) of the Offer Price, to any third party that is not an Affiliate of the Company Key Stockholder at any time during within ninety (90) days after the period of nine (9) months following the date of delivery expiration of the Offer Notice by the Company to IIT, without the obligation to provide any further offers or notices to IIT.Second