Common use of Preemptive Rights Clause in Contracts

Preemptive Rights. (a) Except as set forth in Section 3.5(c), the Maker shall not issue or sell any shares of Common Stock or other securities, or any rights or options to purchase Common Stock or other securities, or any debt or shares convertible into or exchangeable for Common Stock or other securities, whether now or hereafter authorized and whether unissued or in the treasury (collectively, “Preemptive Shares”), unless the Holder shall first have been given the right to acquire, at a price no less favorable than that at which such Preemptive Shares are to be offered to others, a portion of the Preemptive Shares, as provided in Section 3.5(b). (b) The Maker shall give the Holder prior written notice of any proposed issuance or sale described in Section 3.5(a), including the price at which such securities are to be offered and the time period for the offering, and the Holder shall have thirty (30) days from the giving of such notice within which to elect to acquire that number of the Preemptive Shares equal to the product of the total number of Preemptive Shares being offered and a fraction, determined as of the time immediately prior to the issuance of the Preemptive Shares, the numerator of which is equal to the sum of (i) the number of shares of Common Stock then outstanding as a result of the conversion of this Note, and (ii) the number of shares of Common Stock into which this Note could be converted, and the denominator of which is equal to the sum of (x) the number of shares of Common Stock then outstanding, (y) the number of shares of Common Stock into which this Note could be converted, and (z) the number of shares of Common Stock issuable upon conversion or exercise of all outstanding options, warrants and other rights for the purchase of capital stock of the Company, and all outstanding shares of all series of preferred stock (such number of Preemptive Shares being referred to herein as the “Common Stock Preemptive Shares”). The Holder may acquire that portion of the Common Stock Preemptive Shares being offered equal to its percentage ownership of the outstanding Common Stock immediately preceding the issuance of the Preemptive Shares. If any transaction specified by the Maker in any such notice shall not be consummated within one hundred twenty (120) days from the date of such notice, the Corporation shall again comply with the provisions of this Section 3.5 with respect to such transaction, and the Holder shall again have preemptive rights hereunder with respect to the transaction, regardless of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant to the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of the transaction proposed by the Maker. (c) The restrictions contained in, and preemptive rights granted under, this Section 3.5 shall not apply to: (i) shares of Common Stock issued upon conversion of this Note; (ii) shares of capital stock of the Maker issued in a public offering occurring after the date hereof that results in aggregate gross proceeds to the Maker of at least Fifty Million Dollars ($50,000,000); or (iii) shares of Common Stock issued upon the exercise or conversion of outstanding options, warrants or other Common Stock equivalents in existence on the Issuance Date. The rights granted to the Holder under this Section 3.5 may be waived with respect to any Preemptive Shares by a written waiver executed by the Holder.

Preemptive Rights. (ai) Except as set forth in Section 3.5(c), the Maker Emex shall not issue or sell any Common Stock or any shares convertible into common stock or any warrants or options exercisable for common stock (collectively, the "Common Stock Equivalents") (other than (A) in connection with or pursuant to an employee stock option plan, (B) in connection with a transaction approved by the board of directors of Emex (the "Board") in which the Common Stock to be issued represents no more than 10% of the issued and outstanding Common Stock (calculated on a fully diluted basis taking into account all outstanding Common Stock Equivalents), (C) in connection with the conversion or exercise of Common Stock Equivalents by Thorn Tree, Sixth Avenue or Universal, or (D) in connection with any other transaction approved by the unanimous vote of all of the members of the Board then in office), unless prior to the issuance or sale of such Common Stock or Common Stock Equivalents each of Universal and Thorn Tree shall have been given the opportunity to purchase (on the same terms as such shares of Common Stock or other securities, or any rights or options to purchase Common Stock or other securities, or any debt or shares convertible into or exchangeable for Common Stock or other securities, whether now or hereafter authorized and whether unissued or in the treasury (collectively, “Preemptive Shares”), unless the Holder shall first have been given the right to acquire, at a price no less favorable than that at which such Preemptive Shares Equivalents are proposed to be offered to others, a portion of sold) the Preemptive Shares, as provided in Section 3.5(b). (b) The Maker shall give the Holder prior written notice of any proposed issuance or sale described in Section 3.5(a), including the price at which such securities are to be offered and the time period for the offering, and the Holder shall have thirty (30) days from the giving same proportion of such notice within which to elect to acquire that number of the Preemptive Shares equal to the product of the total number of Preemptive Shares being offered and a fraction, determined as of the time immediately prior to the issuance of the Preemptive Shares, the numerator of which is equal to the sum of (i) the number of shares of Common Stock then outstanding as a result of the conversion of this Note, and (ii) the number of shares of or Common Stock into which this Note could be converted, and the denominator of which is equal to the sum of Equivalents being issued or offered for sale by Emex as (x) the number of shares of Common Stock or Common Stock Equivalents then outstandingheld of record (including, without limitation, the Pledged Shares, whether or not held of record) by Universal and Thorn Tree, respectively, bears to (y) all of the shares of Common Stock and Common Stock Equivalents issued and outstanding at the close of the NASDAQ National Market on that day (such proportion, the "Basic Amount"). (ii) Prior to the issuance or sale by Emex of any Common Stock or Common Stock Equivalents, where pre-emptive rights attach pursuant to Section 1(l)(i) above, Emex shall give written notice thereof (the "Notice of Preemptive Rights") to each of Universal and Thorn Tree which shall specify the total aggregate number of shares of Common Stock into which this Note could be converted, and (z) the number of shares of or Common Stock issuable upon conversion or exercise of all outstanding optionsEquivalents to be issued, warrants the price and other rights for terms of their proposed issuance and the Basic Amount that each of Universal and Thorn Tree is entitled to purchase. (iii) If Universal and/or Thorn Tree desires to purchase Common Stock or Common Stock Equivalents, it shall notify Emex in writing (the "Notice of capital stock Acceptance") within (A) seven (7) days of receipt of the Company, and all outstanding shares of all series of preferred stock (such number Notice of Preemptive Shares being referred Rights or (B) such shorter period, if any (but not less than two (2) business days), that the Board may fix, in its sole discretion, if it believes that the timing of the Notice of Acceptance will interfere with any proposed or potential financing of Emex. The Notice of Acceptance shall state the proportion of the Basic Amount Universal and/or Thorn Tree wish to herein as the “purchase. (iv) Any Common Stock Preemptive Shares”). The Holder may acquire that portion of the or Common Stock Preemptive Shares being offered equal to its percentage ownership of the outstanding Common Stock immediately preceding the issuance of the Preemptive Shares. If any transaction specified by the Maker Equivalent which is not purchased in any such notice shall not be consummated within one hundred twenty (120) days from the date of such notice, the Corporation shall again comply accordance with the provisions of this Section 3.5 with respect to such transaction1(l) may, and within a period of 90 days after the Holder shall again have preemptive rights hereunder with respect to the transaction, regardless of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant to the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation expiration of the transaction proposed time for making such election, be sold by the Maker. (c) The restrictions contained in, and preemptive rights granted under, this Section 3.5 shall not apply to: (i) shares of Common Stock issued upon conversion of this Note; (ii) shares of capital stock of the Maker issued in a public offering occurring after the date hereof that results in aggregate gross proceeds to the Maker of at least Fifty Million Dollars ($50,000,000); or (iii) shares of Common Stock issued upon the exercise or conversion of outstanding options, warrants or other Common Stock equivalents in existence on the Issuance Date. The rights granted to the Holder under this Section 3.5 may be waived with respect Emex to any person at not less than the price and upon other terms and conditions not less favorable to Emex than those set forth in the Notice of Preemptive Shares by a written waiver executed by the HolderRights.

Preemptive Rights. (a) Except as set forth in Section 3.5(cAt any time prior to the IPO (and not including the IPO itself), the Maker Corporation shall not issue or sell any shares of Common Stock or other securitiesunless, or any rights or options prior to purchase such issuance, the Corporation offers such shares of Common Stock or other securities, or any debt or shares convertible into or exchangeable for Common Stock or other securities, whether now or hereafter authorized to each Holder at the same price per share and whether unissued or in upon the treasury (collectively, “Preemptive Shares”), unless the Holder shall first have been given the right to acquire, at a price no less favorable than that at which such Preemptive Shares are to be offered to others, a portion of the Preemptive Shares, as provided in Section 3.5(b)same terms and conditions. (b) The Maker shall give the Holder prior written notice of any proposed issuance or sale described in Section 3.5(a), including the price at which such securities are to be offered and the time period for the offering, and the Holder shall have thirty (30) days from the giving of such notice within which to elect to acquire that number of the Preemptive Shares equal to the product of the total number of Preemptive Shares being offered and a fraction, determined as of the time immediately Not less than 20 Business Days prior to the issuance closing of such offering (the “Preemptive SharesRights Period”), the numerator of which is equal Corporation shall send a written notice to the sum of (i) each Holder stating the number of shares of Common Stock then outstanding as a result to be offered (the “Preemptive Rights Shares”), the proposed closing date and the price and terms on which it proposes to offer such shares of Common Stock. (c) Within 10 Business Days after the receipt of the conversion notice pursuant to Section 5.3(b), each Holder may elect, by written notice to the Corporation to purchase shares of this NoteCommon Stock of the Corporation, at the price and on the terms specified in such notice, up to an amount equal to the product obtained by multiplying (iix) the total number of shares of Common Stock to be issued by (y) a fraction, (A) the numerator of which is the number of shares of Common Stock into which this Note could be converted, held by such Holder and (B) the denominator of which is equal to the sum of (x) the number of total outstanding shares of Common Stock. (d) The closing of any such purchase of shares of Common Stock then outstandingby such Holder pursuant to this Section 5.3(d) shall occur concurrently with the closing of the proposed issuance, as applicable, subject to adjustment to obtain any necessary Governmental Approval. (ye) Upon the number expiration of the Preemptive Rights Period, the Corporation shall be entitled to sell such Preemptive Rights Shares that the Holders have not elected to purchase for a period ending 120 days following the expiration of the Preemptive Rights Period on terms and conditions not materially more favorable to the purchasers thereof than those offered to the Holders. Any Preemptive Rights Shares to be sold by the Corporation following the expiration of such period must be reoffered to the Holders pursuant to the terms of this Section 5.3 or if any such agreement to Transfer is terminated. (f) The provisions of this Section 5.3 shall not apply to the following issuances of shares of Common Stock: (i) incentive shares of Common Stock issued to or for the benefit of employees, officers, directors and other service providers of or to the Corporation or any subsidiary of the Corporation in accordance with the terms hereof or any applicable incentive plan of the Corporation; (ii) securities issued upon conversion of convertible or exchangeable securities (including warrants) of the Corporation or any of its subsidiaries that are outstanding as of the date of this Agreement or were not issued in violation of this Section 5.3; and (iii) a subdivision of shares of Common Stock into which this Note could be converted(including any share distribution or split), and (z) the number any combination of shares of Common Stock issuable upon conversion (including any reverse share split), shares issued as a dividend or exercise of all outstanding options, warrants and other rights for distribution on the purchase of capital stock of the Company, and all outstanding shares of all series of preferred stock (such number of Preemptive Shares being referred to herein as the “Common Stock Preemptive Shares”). The Holder may acquire that portion of the Common Stock Preemptive Shares being offered equal to its percentage ownership of the outstanding Common Stock immediately preceding the issuance of the Preemptive Shares. If any transaction specified by the Maker in any such notice shall not be consummated within one hundred twenty (120) days from the date of such notice, the Corporation shall again comply with the provisions of this Section 3.5 with respect to such transaction, and the Holder shall again have preemptive rights hereunder with respect to the transaction, regardless of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant to the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of the transaction proposed by the Maker. (c) The restrictions contained in, and preemptive rights granted under, this Section 3.5 shall not apply to: (i) shares of Common Stock issued upon conversion of this Note; (ii) shares of capital stock of the Maker issued in a public offering occurring after the date hereof that results in aggregate gross proceeds to the Maker of at least Fifty Million Dollars ($50,000,000); or (iii) shares of Common Stock issued upon the exercise or any recapitalization, reorganization, reclassification or conversion of outstanding options, warrants the Corporation or other Common Stock equivalents in existence on the Issuance Date. The rights granted to the Holder under this Section 3.5 may be waived with respect to any Preemptive Shares by a written waiver executed by the Holderof its subsidiaries.

Preemptive Rights. Subject to the terms and conditions specified in this Section 3.2 and for so long as the Investor or its assignees hold shares representing at least twenty percent (a20%) Except as set forth in Section 3.5(c), the Maker shall not issue or sell any of all issued and outstanding shares of Common Stock (i.e., excluding options, warrants or other securities, or any rights or options to purchase Common Stock or other securities, or any debt or shares securities convertible into or exchangeable exchanged for shares of Common Stock), the Company hereby grants to the Investor a preemptive right to subscribe for future sales by the Company of its Additional Stock (as hereinafter defined). Each time the Company proposes to offer any shares of, or other securitiessecurities convertible into or exercisable for any shares of, whether now or hereafter authorized and whether unissued or in the treasury any class of its capital stock (collectively, “Preemptive SharesAdditional Stock”), unless other than (i) any of the Holder options remaining ungranted pursuant to the Option Plan, (ii) the exercise of any options granted under the Option Plan, or (iii) any offering of securities pursuant to an effective registration under the Act, the Company shall first have been given make an offering of such Additional Stock to the right Investor in accordance with the following provisions: (a) The Company shall deliver a notice by certified mail (“Notice”) to acquirethe Investor stating (i) its bona fide intention to offer such Additional Stock, at a price no less favorable than that at which (ii) the number of such Preemptive Shares are shares of Additional Stock to be offered offered, and (iii) the price and terms, if any, upon which it proposes to others, a portion of the Preemptive Shares, as provided in Section 3.5(b)offer such Additional Stock. (b) The Maker shall give Within 20 calendar days after receipt of the Holder prior written notice of any proposed issuance Notice, the Investor may elect to purchase or sale described in Section 3.5(a)obtain, including at the price at which such securities are and on the terms specified in the Notice, up to be offered and the time period for the offering, and the Holder shall have thirty (30) days from the giving that portion of such notice within Additional Stock which to elect to acquire equals the proportion that number of the Preemptive Shares equal to the product of the total number of Preemptive Shares being offered and a fraction, determined as of the time immediately prior to the issuance of the Preemptive Shares, the numerator of which is equal to the sum of (i) the number of shares of Common Stock issued and held, or issuable upon conversion or exercise of any other security then outstanding as a result of held by the conversion of this Note, and (ii) Investor bears to the total number of shares of Common Stock into which this Note could be converted, of the Company then outstanding (assuming full conversion and the denominator of which is equal to the sum of (x) the number of shares of Common Stock then outstanding, (y) the number of shares of Common Stock into which this Note could be converted, and (z) the number of shares of Common Stock issuable upon conversion or exercise of all outstanding optionsconvertible or exercisable securities). (c) If all Additional Stock which the Investor is entitled to obtain pursuant to subsection 3.2(b) is not elected to be obtained as provided in subsection 3.2(b) hereof, warrants the Company may, during the 30-day period following the expiration of the period provided in subsection 3.2(b) hereof, offer the remaining unsubscribed portion of such Additional Stock to any Person or Persons at a price not less than, and other rights upon terms no more favorable to the offeree than those specified in the Notice. If the Company does not enter into an agreement for the purchase sale of the Additional Stock within such period, or if such agreement is not consummated within 30 days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Additional Stock shall not be offered unless first reoffered to the Investor in accordance herewith. (d) The right set forth in this Section 3.2 may be assigned or transferred by the Investor to a transferee or assignee of any of its shares of capital stock of the Company, provided; such transferee or assignee agrees in writing to be bound by and all outstanding shares of all series of preferred stock (such number of Preemptive Shares being referred subject to herein as the “Common Stock Preemptive Shares”). The Holder may acquire that portion of the Common Stock Preemptive Shares being offered equal to its percentage ownership of the outstanding Common Stock immediately preceding the issuance of the Preemptive Shares. If any transaction specified by the Maker in any such notice shall not be consummated within one hundred twenty (120) days from the date of such notice, the Corporation shall again comply with the provisions terms and conditions of this Section 3.5 with respect Agreement relating to such transaction, and the Holder shall again have preemptive rights hereunder with respect to the transaction, regardless of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant to the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of the transaction proposed by the Maker. (c) The restrictions contained in, and preemptive rights granted under, this Section 3.5 shall not apply to: (i) shares of Common Stock issued upon conversion of this Note; (ii) shares of capital stock of the Maker issued in a public offering occurring after the date hereof that results in aggregate gross proceeds to the Maker of at least Fifty Million Dollars ($50,000,000); or (iii) shares of Common Stock issued upon the exercise or conversion of outstanding options, warrants or other Common Stock equivalents in existence on the Issuance Date. The rights granted to the Holder under this Section 3.5 may be waived with respect to any Preemptive Shares by a written waiver executed by the Holder3.2.

Preemptive Rights. (a) Except as set forth in Section 3.5(c)subsection (b) below, the Maker shall Company will not issue issue, sell or sell otherwise transfer for consideration to any shares member of the Xxxx Group or Affiliate thereof (an "Issuance") at any time prior to a Public Offering, any Common Stock (or securities convertible into or exercisable or exchangeable for Common Stock or other securities, or securities containing any rights profit participation features or options to purchase Common Stock or any stock appreciation right or phantom stock plan) unless, at least 30 days and not more than 60 days prior to such Issuance, the Company notifies each holder of Stockholder Shares in writing of the Issuance (including the price, the purchasers thereof and the other securitiesterms thereof) and grants to each holder of Stockholder Shares, or any debt or shares convertible into or exchangeable for Common Stock or other securities, whether now or hereafter authorized and whether unissued or in the treasury (collectively, “Preemptive Shares”), unless the Holder shall first have been given the right (the "Right") to acquire, at a price no less favorable than that at which such Preemptive Shares are to be offered to others, subscribe for and purchase a portion of such additional shares or other securities so issued at the Preemptive Shares, same price and on the same terms as provided issued in Section 3.5(b). (b) The Maker shall give the Holder prior written notice of any proposed issuance or sale described in Section 3.5(a), including the price at which such securities are to be offered and the time period for the offering, and the Holder shall have thirty (30) days from the giving of such notice within which to elect to acquire that number of the Preemptive Shares Issuance equal to the product quotient determined by dividing (1) the number of fully diluted shares of Common Stock held by such holder by (2) the total number of Preemptive Shares being offered and a fraction, determined as of the time immediately prior to the issuance of the Preemptive Shares, the numerator of which is equal to the sum of (i) the number of shares of Common Stock then outstanding as on a result of fully diluted basis. Notwithstanding the conversion of this Noteforegoing, and (ii) the number of shares of Common Stock into which this Note could be converted, and the denominator of which is equal if all Persons entitled to the sum of (x) the number of shares of Common Stock then outstanding, (y) the number of shares of Common Stock into which this Note could be converted, and (z) the number of shares of Common Stock issuable upon conversion purchase or exercise of all outstanding options, warrants and receive such stock or securities are required to also purchase other rights for the purchase of capital stock securities of the Company, the holders of Stockholder Shares exercising their Right pursuant to this Section shall also be required to purchase the same strip of securities (on the same terms and all outstanding shares conditions) that such other Persons are required to purchase; provided that, at the request of all series any holder of preferred Stockholders Shares, the Company shall offer to such holder stock or securities which have no voting rights (other than required by applicable law) and which are convertible into voting securities but which are otherwise identical to the stock or securities being offered. The Right may be exercised by such number holder at any time by written notice to the Company received by the Company within 15 days after receipt by such holder of Preemptive Shares being the notice from the Company referred to herein as the “Common Stock Preemptive Shares”)above. The Holder may acquire that portion closing of the Common Stock Preemptive Shares being offered equal to its percentage ownership of the outstanding Common Stock immediately preceding the issuance of the Preemptive Shares. If any transaction specified by the Maker in any such notice shall not be consummated within one hundred twenty (120) days from the date of such notice, the Corporation shall again comply with the provisions of this Section 3.5 with respect to such transaction, purchase and the Holder shall again have preemptive rights hereunder with respect to the transaction, regardless of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities sale pursuant to the exercise of preemptive rights the Right shall occur not less than 10 days after the Company receives notice of the exercise of the Right and concurrently with the closing of the Issuance. In the event that the consideration received by the Company in connection with an Issuance is property other than cash, each holder of Stockholder Shares may, at its election, pay the purchase price for such additional shares or other securities in such property or solely in cash. In the event that any such holder elects to pay cash, the amount thereof shall be consummated simultaneously with, and shall be conditioned upon, consummation determined based on the fair value of the transaction proposed consideration received or receivable by the MakerCompany in connection with the Issuance. (b) Notwithstanding the foregoing, the Right shall not apply to (i) issuances of Common Stock (or securities convertible into or exchangeable for, or options to purchase, Common Stock), pro rata to all holders of Common Stock, as a dividend on, subdivision of or other distribution in respect of, the Common Stock in accordance with the Company's Certificate of Incorporation, (ii) the issuance of Common Stock upon conversion of the Preferred Stock, or (iii) the issuance of Common Stock (or securities convertible into or exchangeable for, or options to purchase, Common Stock) on customary, arm's length terms in connection with the provision by the Xxxx Group (or Affiliates thereof) of debt financing to the Company or its Subsidiaries. (c) The restrictions contained in, and preemptive rights granted under, provisions of this Section 3.5 shall not apply to: (i) shares of Common Stock issued upon conversion of this Note; (ii) shares of capital stock of the Maker issued in a public offering occurring after the date hereof that results in aggregate gross proceeds to the Maker of at least Fifty Million Dollars ($50,000,000); or (iii) shares of Common Stock issued 4 will terminate upon the exercise or conversion consummation of outstanding options, warrants or other Common Stock equivalents in existence on the Issuance Date. The rights granted to the Holder under this Section 3.5 may be waived with respect to any Preemptive Shares by a written waiver executed by the HolderPublic Offering.

Preemptive Rights. (a) Except as set forth in Section 3.5(cPrior to the earlier of a Qualified IPO and a Change of Control Transaction, if the Company proposes to issue additional equity securities of the Company (including securities exercisable for or convertible into equity securities), the Maker Company shall not issue or sell any shares of Common Stock or other securities, or any rights or options deliver to purchase Common Stock or other securities, or any debt or shares convertible into or exchangeable for Common Stock or other securities, whether now or hereafter authorized and whether unissued or in the treasury (collectively, “Preemptive Shares”), unless the Holder shall first have been given the right to acquire, at each Major Member a price no less favorable than that at which such Preemptive Shares are to be offered to others, a portion of the Preemptive Shares, as provided in Section 3.5(b). (b) The Maker shall give the Holder prior written notice of any such proposed issuance or sale described in Section 3.5(a), including the price at which such securities are to be offered and the time period for the offering, and the Holder shall have least thirty (30) days prior to the date of the proposed issuance (the period from the giving effectiveness pursuant to Section 11.12 of such notice within which until the expiration of such thirty (30) day period, the “Subscription Period”). Such notice shall include, to elect to acquire that number the extent applicable, (i) the amount, kind and terms of the Preemptive Shares equity securities to be included in the issuance, (ii) the price of the equity securities to be included in the issuance, and (iii) the proposed issuance date, if known. Table of Contents (b) Each Major Member shall have the option, exercisable at any time during the first twenty (20) days of the Subscription Period by delivering an irrevocable written notice to the Company (except as otherwise provided in this Section 3.8) and on the same terms as those of the proposed issuance of such additional equity securities (including the number or amount, as applicable, of equity securities issuable upon exercise or conversion of any security), to irrevocably subscribe for such number or amount, as applicable, of equity securities as is equal to the product of (A) the total number or amount of Preemptive Shares being any such additional equity securities (including securities exercisable for or convertible into equity securities) to be offered and (B) a fraction, determined as of the time immediately prior to the issuance of the Preemptive Shares, fraction the numerator of which is equal to the sum of (i) the number of shares of Common Stock then outstanding as a result of the conversion of this Note, Units (excluding Incentive Units) owned by such Major Member and (ii) the number of shares of Common Stock into which this Note could be converted, its Affiliates and the denominator of which is equal the total number of Units (excluding Incentive Units) owned by all Major Members and their Affiliates (the “Preemptive Percentage”), in each case, on the same terms and conditions as are to be provided to the sum proposed purchaser in the issuance in question. Each Major Member who does not exercise such option in accordance with the above requirements shall be deemed to have waived all of such Major Member’s rights with respect to such issuance. In the event that any Major Member does not elect to purchase its aggregate Preemptive Percentage of the additional equity securities (xincluding securities exercisable for or convertible into equity securities), the Company shall deliver to each Major Member (other than declining Major Members or Major Members who elect to purchase less than the amount offered to it) a written notice thereof no later than the 25th day of the Subscription Period, including the number or amount, as applicable, of shares equity securities which were subject to the purchase right of Common Stock then outstanding, (y) the number of shares of Common Stock into which this Note could be convertedsuch declining Major Member(s), and each other Major Member may subscribe for not more than its Preemptive Percentage (zcalculated using the Percentage Interest of such Major Member relative to all non-declining Major Members) of such declined equity securities before the number of shares of Common Stock issuable upon conversion or exercise of all outstanding options, warrants and other rights for the purchase of capital stock expiration of the Company, and all outstanding shares of all series of preferred stock Subscription Period. (such number of Preemptive Shares being referred to herein as c) If at the “Common Stock Preemptive Shares”). The Holder may acquire that portion end of the Common Stock Preemptive Shares being offered equal to its percentage ownership of the outstanding Common Stock immediately preceding the issuance of the Preemptive Shares. If any transaction specified by the Maker in any such notice shall not be consummated within one hundred twenty (120) days from 90th day after the date of the effectiveness of the notice contemplated by clause (a) above, as such noticeperiod may be extended to obtain any required regulatory approvals, the Corporation Company has not completed the issuance, each Major Member shall again comply be released from such Major Member’s obligations under the written commitment, the notice shall be null and void, and it shall be necessary for a separate notice to be furnished, and the terms and provisions of this Section 3.8 separately complied with, in order to consummate such issuance. (d) In the event that the participation in the issuance by a Major Member as a purchaser would require under applicable Law (i) the registration or qualification of such securities or of any Person as a broker or dealer or agent with respect to such securities where such registration or qualification is not otherwise required for the issuance, or (ii) the provision to any Major Member of any specified information regarding the Company or the securities to be issued that is not otherwise required to be provided for the issuance, such Major Member shall not have the right to participate in the issuance. (e) Each Major Member shall take or cause to be taken all such reasonable actions as may be necessary or reasonably desirable in order expeditiously to consummate each issuance pursuant to this Section 3.8; provided, however, that, in no event shall any Major Member be required to provided non-public financial or other information regarding such Major Member or any of its Affiliates, other than information solely with respect to the Major Member’s status as a Member and an accredited investor. Table of Contents (f) Notwithstanding the requirements of this Section 3.8, the Company may proceed with any issuance that would otherwise be subject to this Section 3.8 prior to having complied with the provisions of this Section 3.5 with respect to such transaction3.8; provided, and that the Holder shall again have preemptive rights hereunder with respect to the transaction, regardless of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant to the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of the transaction proposed by the Maker. (c) The restrictions contained in, and preemptive rights granted under, this Section 3.5 shall not apply toCompany shall: (i) shares provide to each Major Member in connection with such issuance (A) prompt notice of Common Stock issued upon conversion such issuance and (B) the notice described in clause (a) above in which the actual price of this Notethe equity securities shall be set forth; (ii) shares within a reasonable period of capital stock time following the issuance, offer to issue (or have Transferred) to each Major Member such number or amount of equity securities of the Maker type issued in the issuance as may be requested by such Major Member (not to exceed the number or amount of such securities which is sufficient to give such Major Member the same fractional interest in the Company, giving effect to such issuance and any further issuances pursuant to this clause (f), as it would have had if the Company had served a public offering occurring after the date hereof that results notice pursuant to, and such Major Member had exercised its rights in aggregate gross proceeds full under, Section 3.8(a) and 3.8(b) prior to the Maker of at least Fifty Million Dollars ($50,000,000)issuance) on the same terms and conditions with respect to such securities as the subscribers in the issuance received; orand (iii) shares keep such offer open for a period of Common Stock issued thirty (30) Business Days, during which period, each such Major Member may accept such offer by sending an irrevocable written acceptance to the Company committing to purchase in accordance with the procedures set forth in Section 3.8(b), an amount of such securities (not to exceed the amount specified in the offer made pursuant to Section 3.8(f)(ii)). (g) The provisions of this Section 3.8 shall not apply to issuances by the Company as follows: (i) any issuance of securities upon the exercise or conversion of outstanding any stock, options, warrants or other Common Stock equivalents in existence convertible securities outstanding on the Issuance Date. The rights granted date hereof or issued after the date hereof in a transaction that complied with the provisions of this Section 3.8; (ii) any issuance of equity securities, options, warrants or convertible securities to officers, employees, directors or consultants (other than a Member or an Affiliate thereof) of the Company or its Subsidiaries in connection with such Person’s employment or consulting arrangements with the Company or its Subsidiaries, in each case to the Holder under this Section 3.5 may be waived extent approved by the Board of Managers or pursuant to an employment benefit plan, incentive award program or other compensation arrangement; (iii) any issuance of equity securities, options, warrants or convertible securities, in each case to the extent approved by the Board of Managers, (A) in any direct or indirect business combination or acquisition Table of Contents transaction involving the Company or any of its Subsidiaries, including with respect to a Change of Control Transaction, (B) in connection with any Preemptive Shares joint venture or strategic partnership entered into primarily for purposes other than raising capital (as determined by the Board of Managers (or such other governing body of any Subsidiary of the Company) in its sole discretion) or (C) to financial institutions, commercial lenders, broker/finders or any similar party, or their respective designees, as an “equity kicker” in connection with a transaction that is primarily the incurrence or guarantee of Indebtedness by the Company or any of its Subsidiaries; (iv) any issuance of securities in connection with any stock split, stock dividend paid on a proportionate basis to all holders of the affected class of equity interest or recapitalization approved by the Board of Managers; or (v) any issuance of equity securities, options, warrants or convertible securities pursuant to a Public Offering or in connection with an Initial Public Offering. (h) If the Company proposes to issue Indebtedness of the Company in a private issuance solely to one or more Major Members, the Company shall deliver to each other Major Member notice of such issuance and an opportunity to participate in such issuance pro rata with the other participating Major Member(s) based on the Percentage Interest of such Major Member relative to all participating Major Members. (i) The closing of a purchase of equity securities or Indebtedness of the Company by a written waiver executed Major Member pursuant to this Section 3.8 shall take place at the principal office of the Company on the closing date for the issuance, grant or sale of such equity securities or Indebtedness of the Company (as applicable) as mutually agreed upon by the HolderCompany and the Major Members that have elected to purchase such equity securities or Indebtedness of the Company (as applicable). At such closing, such Major Members shall deliver bank checks or wire transfer of immediately available funds to the Company in the amount of the purchase prices applicable to the equity securities or Indebtedness of the Company (as applicable) being purchased by such Major Members. The Company shall amend Schedule I to reflect the additional Capital Contribution by such Major Members in connection with the exercise of their preemptive rights with respect to newly issued equity securities of the Company in accordance with this Section 3.8.

Preemptive Rights. (a) Except as Subject to the limitations set forth in Section 3.5(c)4.08, following the Maker shall not issue or sell any Closing, and until such time as Investor, together with its Affiliates, first ceases to beneficially own (as determined pursuant to Rule 13d-3 under the Exchange Act) shares of Common Stock or other securitiespurchasable under Warrants, or any rights or options to purchase shares of Common Stock or other securitiespurchased under Warrants, or any debt or shares convertible into or exchangeable for of Common Stock previously issued under this Section 4.05 and shares of Common Stock purchasable or acquirable under other securitiessecurities previously issued under this Section 4.05 (collectively but, whether now or hereafter authorized and whether unissued or in the treasury (collectivelywithout duplication, “Preemptive Transaction Shares”) equal to at least 50% of the aggregate Transaction Shares theretofore issued to Investor and its Affiliates (including any such Transaction Shares transferred to any of them pursuant to Section 4.05(f)), the Company shall offer each of Investor and each of its Affiliates that owns beneficially or of record any Transaction Shares (each, an “Eligible Holder”), unless on the Holder shall first have been given terms and conditions of this Section 4.05, the right to acquire, at a price no less favorable than that at which such Preemptive Shares are purchase or subscribe for up to be offered to others, a portion of the Preemptive Shares, as provided in Section 3.5(b). (b) The Maker shall give the Holder prior written notice of any proposed issuance or sale described in Section 3.5(a), including the price at which such securities are to be offered and the time period for the offering, and the Holder shall have thirty (30) days from the giving of such notice within which to elect to acquire that an aggregate number of the Preemptive Shares New Securities equal to the product of (i) the total number of Preemptive Shares being offered New Securities to be issued or sold by the Company and (ii) a fraction, determined as of the time immediately prior to the issuance of the Preemptive Shares, the numerator of which is equal to the sum of (i) the aggregate number of shares of Common Stock then outstanding as a result of the conversion of this Note, and (ii) the number of shares of Common Stock into which this Note could be convertedTransaction Shares beneficially owned by such Eligible Holder, and the denominator of which is equal to the sum of (x) the aggregate number of shares of Common Stock then outstanding, (y) outstanding plus the aggregate number of shares all Transaction Shares that all Eligible Holders may then purchase under Warrants or other exercisable, convertible or exchangeable securities, in each case, determined as of Common Stock into the date on which the Preemptive Rights Notice is delivered, or in the case of an Accelerated Equity Offering, as of immediately prior thereto. However, the Company may elect not to extend preemptive rights under this Note could be convertedSection 4.05 to Investor or any of its Affiliates that is not an “accredited investor” within the meaning of Regulation D under the Securities Act or whose participation in the offering or sale would, in and (z) of itself, in the number of shares of Common Stock issuable upon conversion or exercise of all outstanding options, warrants and other rights for the purchase of capital stock reasonable good faith judgment of the Company, and all outstanding shares require registration or qualification under any U.S. federal, state or non-U.S. securities law (assuming any such registration and/or qualification would not be required but for such Person’s participation) and, if it does so, the Persons so excluded shall not be entitled to the rights provided under this Section 4.05; provided, that in such case, Investor and/or any one or more of all series the other Eligible Holders who are not so excluded shall be entitled to exercise the rights of preferred stock (the Persons so excluded in their stead, with such number rights to be reallocated among Investor and/or such other Eligible Holders as determined by those of Preemptive Shares being referred to herein as the “Common Stock Preemptive Shares”). The Holder may acquire that portion them holding a majority of the Common Stock Preemptive Shares being offered equal beneficially owned by all of them. (b) Subject to its percentage ownership the last sentence of the outstanding Common Stock immediately preceding the issuance of the Preemptive Shares. If any transaction specified by the Maker Section 4.05(a) and in any such notice shall not be consummated within one hundred twenty (120) days from the date of such notice, the Corporation shall again comply accordance with the provisions of this Section 3.5 4.05, each Eligible Holder shall be entitled to purchase all or any portion of such New Securities (as set forth in Section 4.05(a)) at the most favorable price such New Securities are to be sold or issued. Each Eligible Holder participating in such purchase shall be obligated to execute agreements with respect to such transactionpurchase, in each case no more restrictive and providing for no fewer rights, remedies or privileges to such Eligible Holder than such agreements to be executed by any other proposed purchaser of such New Securities. Except as provided in Section 4.05(f), the sale of the New Securities to each Eligible Holder shall be no later than concurrent with the sale of such New Securities to the other proposed purchaser(s) of such New Securities, and the purchase price therefor shall be payable by such Eligible Holder at the same time and in the same manner as payable by the other proposed purchaser(s) of such New Securities; provided that, if the Company accepts payment for any such New Securities in any form other than cash (U.S. dollars), each Eligible Holder shall again have preemptive rights hereunder the option to make such payment in cash (U.S. dollars) by wire transfer of immediately available funds to an account designated by the Company or in the form of such other consideration paid by the other purchaser(s); provided, further, that the sale of New Securities to any Eligible Holder may be delayed as reasonable necessary to obtain any required clearance, consent or approval of any Governmental Authority, including the passage or termination of any waiting period under the HSR Act or any comparable applicable non-U.S. competition or antitrust Law, it being understood that, with respect to the transaction, regardless of whether any such stockholder had previously exercised required clearance, consent or failed approval, the Company shall cooperate with the Eligible Holder in accordance with Section 4.01. The exercise by any Eligible Holder of its purchase rights under this Section 4.05(b) shall be subject to exercise such rights. Any purchase receipt of securities the Shareholder Approval, to the extent required therefor, including pursuant to the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of the transaction proposed by the MakerNYSE Listed Company Manual. (c) The restrictions contained inIn order to exercise its purchase rights under this Section 4.05, each Eligible Holder must deliver a written notice (an “Election Notice”) to the Company describing its election hereunder. Such Election Notice must be delivered to the Company no later than ten (10) Business Days (the “Offering Period”) following such Eligible Holder’s receipt of written notice from the Company (a “Preemptive Rights Notice”) describing in reasonable detail the type, class and number of New Securities being offered, the purchase price thereof, the other material terms and conditions associated therewith, and preemptive such Eligible Holder’s percentage allotment. Each Eligible Holder who fails for any reason to deliver an Election Notice to the Company within the Offering Period shall be deemed to have irrevocably waived any and all of his, her or its rights granted under, under this Section 3.5 shall not apply to:4.05 in respect of the issuance of New Securities described in the applicable Preemptive Rights Notice. (id) shares Upon the expiration of Common Stock issued upon conversion the Offering Period and during the 150-day period immediately thereafter, the Company shall be entitled to sell any New Securities which any Eligible Holder has not elected to purchase, on terms and conditions no more favorable to the purchasers thereof than those offered to the Eligible Holders pursuant to Section 4.05(c). Any New Securities offered or sold by the Company after such 150-day period must be reoffered to each Eligible Holder pursuant to the terms of this Note;Section 4.05. (iie) For purposes hereof, “New Securities” means any (x) shares of capital stock or other equity interests in the Company or any successor thereto (“Capital Stock”), (y) any warrants, options, or other rights to subscribe for or to acquire, directly or indirectly, Capital Stock, whether or not then exercisable or convertible, and (z) any interests, notes, or other securities which are convertible into or exchangeable for, directly or indirectly, Capital Stock, whether or not then convertible or exchangeable; provided that, New Securities shall not include any such securities or other interests issued (i) as consideration in a bona fide business combination or acquisition (whether structured as a merger, consolidation or otherwise) (including in connection with acquisitions of vessels or other assets) by the Company or its Subsidiaries (and not to any Affiliates of the Maker issued Company or any of its Subsidiaries or any members of the “immediate family” (as such term is defined in a public offering occurring after Rule 16a-1(e) under the date hereof that results Exchange Act) thereof or to any Affiliates of any of the foregoing), (ii) as “kickers” to lenders pursuant to bona fide third-party debt financings (and not to any Affiliates of the Company or any of its Subsidiaries or any members of the “immediate family” (as such term is defined in aggregate gross proceeds Rule 16a-1(e) under the Exchange Act) thereof or to any Affiliates of any of the Maker of at least Fifty Million Dollars ($50,000,000foregoing); or , (iii) shares to any director, officer, employee or consultant of Common the Company or any of its Subsidiaries or joint ventures pursuant to the General Maritime Corporation 2001 Stock issued upon Incentive Plan as in effect on March 25, 2011, or any other compensatory plan or arrangement of the exercise Company or conversion any of outstanding optionsits Subsidiaries approved by the Company Board or the Compensation Committee, warrants (iv) pursuant to any stock splits, stock combinations, stock dividends, dividends of purchase rights or other Common Stock equivalents securities and similar transactions, (v) upon conversion, exchange or exercise of any securities previously issued in existence on compliance with this Section 4.05, (vi) upon conversion, exchange or exercise of any securities previously issued and in respect of which the Issuance Date. The rights granted Eligible Holders were not entitled to the Holder participate under this Section 3.5 may be waived 4.05 because such securities were excluded from the definition of “New Securities” by any of clauses (i), (ii), (iii) or (iv) of this paragraph, (vii) upon conversion, exchange or exercise of any securities outstanding on the date of this Agreement or on the Closing Date, or (viii) to the extent such securities or other interests constitute Public Offering Securities (it being understood that, with respect to any Preemptive Shares by a written waiver executed by Public Offering Securities, the Holderprovisions of Section 4.05(g) shall govern).

Preemptive Rights. If at any time after the date hereof the Company issues new shares of any class or series of capital stock to any Person other than Buyer (such new shares, “New Securities” and such an issuance, a “Preemptive Issuance”), including, without limitation, shares of capital stock issued upon the exercise of any options or warrants or the conversion of any other securities, Buyer shall have the right (the “Participation Right”) to purchase New Securities of the same class and series issued in such Preemptive Issuance at the price per New Security paid in connection therewith and otherwise upon the same terms and conditions as the New Securities being issued in the Preemptive Issuance. The number of New Securities Buyer may purchase under this Section 5 with respect to each Preemptive Issuance shall be such number of shares so that (a) Except as set forth in Section 3.5(c), the Maker shall not issue or sell any shares of Common Stock or other securities, or any rights or options to purchase Common Stock or other securities, or any debt or shares convertible into or exchangeable for Common Stock or other securities, whether now or hereafter authorized and whether unissued or in the treasury (collectively, “Preemptive Shares”), unless the Holder shall first have been given the right to acquire, at a price no less favorable than that at which such Preemptive Shares are to be offered to others, a portion of the Preemptive Shares, as provided in Section 3.5(b). (b) The Maker shall give the Holder prior written notice of any proposed issuance or sale described in Section 3.5(a), including the price at which such securities are to be offered and the time period for the offering, and the Holder shall have thirty (30) days from the giving of such notice within which to elect to acquire that number of the Preemptive Shares equal to the product of the total number of Preemptive Shares being offered and a fraction, determined as of the time immediately prior to the issuance of the Preemptive Shares, the numerator of which is equal to the sum of (i) the number of shares of Common Stock then outstanding as a result of the conversion of this Note, and capital stock owned by Buyer divided by (ii) the number of total outstanding shares of Common Stock into which this Note could be convertedcapital stock and shares issuable upon exercise of options outstanding on the date hereof, and the denominator of which is equal to the sum of (xb) (i) the number of votes represented by the shares of Common Stock then outstanding, (y) the number of shares of Common Stock into which this Note could be converted, and (z) the number of shares of Common Stock issuable upon conversion or exercise of all outstanding options, warrants and other rights for the purchase of capital stock owned by Buyer divided by (ii) the total number of the Company, and votes represented by all outstanding shares of all series capital stock and shares issuable upon exercise of preferred stock (options outstanding on the date hereof, shall be identical immediately before and after such number of Preemptive Shares being referred to herein as Issuance. Notwithstanding the “Common Stock Preemptive Shares”). The Holder may acquire that portion of the Common Stock Preemptive Shares being offered equal to its percentage ownership of the outstanding Common Stock immediately preceding foregoing, Buyer shall not have a Participation Right upon the issuance of the Preemptive Shares. If any transaction specified by the Maker shares in any such notice shall not be consummated within one hundred twenty connection with (120a) days from the date of such notice, the Corporation shall again comply with the provisions of this Section 3.5 with respect to such transaction, and the Holder shall again have preemptive rights hereunder with respect to the transaction, regardless of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant to the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of the transaction proposed by the Maker. (c) The restrictions contained in, and preemptive rights granted under, this Section 3.5 shall not apply to: (i) shares of Common Stock issued upon conversion of this Note; (ii) shares of capital stock of the Maker issued in a public offering occurring after the date hereof that results in aggregate gross proceeds to the Maker of at least Fifty Million Dollars ($50,000,000); or (iii) shares of Common Stock issued upon the exercise or conversion of options outstanding options, warrants or other Common Stock equivalents in existence on the Issuance Date. The rights granted to the Holder under this Section 3.5 may be waived with respect to any Preemptive Shares by a written waiver executed by the Holderdate hereof, and (b) stock splits, stock dividends or recapitalizations.

Preemptive Rights. (a) Except as set forth otherwise provided in this Section 3.5(c)2.02, at any time following the Maker shall not purchase of REIT Shares pursuant to the Subscription Agreements, prior to a Public Listing, if KREF proposes to issue additional equity securities (including securities exercisable for or sell any shares of Common Stock or other securities, or any rights or options to purchase Common Stock or other securities, or any debt or shares convertible into or exchangeable for Common Stock or other securities, whether now or hereafter authorized and whether unissued or in the treasury equity securities (collectively, “Preemptive SharesKREF Equity Securities”), unless KREF shall deliver to each Stockholder a written notice of such proposed issuance (the Holder period from the delivery of such notice until the date that is ten (10) Business Days after the delivery of such notice, the “Subscription Period”). Such notice shall first have been given include, to the right to acquireextent applicable, at a price no less favorable than that at which such Preemptive Shares are (i) the number of the KREF Equity Securities to be offered to othersincluded in the issuance, a portion (ii) the price (or the maximum and minimum price, if applicable) and terms of the Preemptive Sharesadditional KREF Equity Securities to be included in the issuance, as provided in Section 3.5(b)and (iii) the proposed issuance date, if known. (b) The Maker Except as otherwise provided in this Section 2.02, each Investor shall give have the Holder prior option, exercisable at any time during the Subscription Period by delivering an irrevocable written notice to KREF prior to the expiration of any proposed issuance or sale described in Section 3.5(a), including the price at which such securities are to be offered and the time period for the offeringSubscription Period, and on the Holder shall have thirty (30) days from same terms as those of the giving of proposed issuance, to irrevocably subscribe for up to such notice within which to elect to acquire that number of the Preemptive Shares KREF Equity Securities as is equal to the product of the total number of Preemptive Shares being offered and a fraction, determined as of the time immediately prior to the issuance of the Preemptive Shares, the numerator of which is equal to the sum of (i) the number of shares of Common Stock then outstanding as a result of the conversion of this Note, any such KREF Equity Securities to be offered and (ii) a fraction the numerator of which is the number of shares of Common Stock into which this Note could be converted, REIT Shares owned by such Investor and the denominator of which is equal to the sum of (x) the total number of shares of Common Stock REIT Shares then outstanding, (y) the number of shares of Common Stock into which this Note could be converted, and (z) the number of shares of Common Stock outstanding or issuable upon exchange, conversion or exercise of any other securities then outstanding (the “Preemptive Percentage”), in each case, on the same terms and conditions as are to be provided to the proposed purchaser in the issuance in question. If such Investor does not exercise any portion of such option in accordance with the above requirements, it shall be deemed to have waived all outstanding optionsof its rights with respect to such issuance. In the event that any Investor does not elect to purchase its Preemptive Percentage of such KREF Equity Securities pursuant to this Section 2.02(b), warrants and KREF shall provide written notice to the other rights Investors that they may subscribe for additional KREF Equity Securities up to the purchase amount of capital stock such declined KREF Equity Securities before the expiration of five (5) Business Days following such written notice; provided, that in lieu of providing such additional written notice, KREF may provide in the original written notice of the Company, proposed issuance that the Investors may indicate (and irrevocably agree to subscribe for) the maximum amount of KREF Equity Securities such Investor would be willing to subscribe for if not all outstanding shares of all series of preferred stock (such number of Preemptive Shares being referred Investors exercise their option pursuant to herein as the “Common Stock Preemptive Shares”this Section 2.02(b). The Holder may acquire that portion If more than one Investor elects to purchase more than their Preemptive Percentage of the Common Stock KREF Equity Securities, any such declined KREF Equity Securities shall be allocated among them in proportion to their respective relative Preemptive Shares being offered equal Percentages. (c) If, prior to its percentage ownership of the outstanding Common Stock immediately preceding the issuance of KREF Equity Securities covered by this Section 2.02, the Preemptive Shares. If any transaction specified terms of the proposed issuance change with the result that the price is less than the minimum price or more than the maximum price set forth in the notice contemplated by clause (a) above or the Maker other principal terms are more favorable in any material respect to the prospective purchaser than those set forth in such notice, it shall be necessary for a separate notice shall not to be consummated within one hundred twenty furnished, and the terms and provisions of this Section 2.02 separately complied with. (120d) days from If at the end of the 90th day after the date of the delivery of the notice contemplated by clause (a) above as such noticeperiod may be extended to obtain any required regulatory approvals, KREF has not completed the issuance, such Stockholder shall be released from its obligations under the written commitment, the Corporation notice shall again comply be null and void, and it shall be necessary for a separate notice to be furnished, and the terms and provisions of this Section 2.02 separately complied with, in order to consummate such issuance. (e) In the event that the participation in the issuance by such Stockholder as a purchaser would require under applicable law (i) the registration or qualification of such KREF Equity Securities or of any Person as a broker or dealer or agent with respect to such KREF Equity Securities where such registration or qualification is not otherwise required for the issuance, (ii) the provision to such Stockholder of any specified information regarding KREF or any of its Subsidiaries or the KREF Equity Securities to be issued that is not otherwise required to be provided for the issuance or (iii) would reasonably be expected to impair the ability of KREF to qualify as a “real estate investment trust” under the Internal Revenue Code of 1986, as amended (the “Code”), such Stockholder shall not have the right to participate in the issuance. (f) Such Stockholder shall take or cause to be taken all such reasonable actions as may be necessary or reasonably desirable in order expeditiously to consummate each issuance pursuant to this Section 2.02. (g) Notwithstanding the requirements of this Section 2.02, KREF may proceed with any issuance that would otherwise be subject to this Section 2.02 prior to having complied with the provisions of this Section 3.5 with respect to such transaction, and the Holder shall again have preemptive rights hereunder with respect to the transaction, regardless of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant to the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of the transaction proposed by the Maker. (c) The restrictions contained in, and preemptive rights granted under, this Section 3.5 shall not apply to2.02; provided that KREF shall: (i) shares provide to such Stockholder in connection with such issuance (A) prompt notice of Common Stock issued upon conversion such issuance and (B) the notice described in clause (a) above in which the actual price of this Notethe KREF Equity Securities shall be set forth; (ii) offer to issue (or have Transferred) to such Stockholder such number of KREF Equity Securities as may be requested by such Stockholder (not to exceed the Preemptive Percentage that such Stockholder would have been entitled to pursuant to this Section 2.02 multiplied by the number of KREF Equity Securities included in the issuance and any further issuance pursuant to this clause (g)) on the same economic terms and conditions with respect to such securities as the subscribers in the issuance received; and (iii) keep such offer open for a period of ten (10) Business Days, during which period, such Stockholder may accept such offer by sending an irrevocable written acceptance to KREF, committing to purchase in accordance with the procedures set forth in Section 2.02(b), a number of KREF Equity Securities (not in any event to exceed the Preemptive Percentage that such Stockholder would have been entitled to pursuant to this Section 2.02 otherwise, multiplied by the number of KREF Equity Securities included in such issuance and any further issuance pursuant to this clause (g)). (h) Subject to compliance with Section 4.04, the provisions of this Section 2.02 shall not apply to any of the following: (i) any issuance of REIT Shares pursuant to a Subscription Agreement, provided that such Subscription Agreements do not provide for an aggregate investment of more than $300,000,000.00 in common shares of capital stock KREF or more than 20% of the Maker issued Common Units; (ii) any issuance of KREF Equity Securities to officers, employees, directors, senior advisors or consultants of KREF or its Affiliates or in connection with a Person’s service for the benefit of KREF or its Subsidiaries or to any entities in which any such Persons indirectly invest in KREF Equity Securities; (iii) any issuance of KREF Equity Securities (A) in connection with any direct or indirect merger, business combination or acquisition transaction involving KREF or any of its Subsidiaries, or (B) in connection with any joint venture or strategic partnership, in each case entered into primarily for purposes other than raising capital (as determined in good faith by the board of directors of KREF in its sole discretion); (iv) any issuance of KREF Equity Securities to financial institutions, commercial lenders, brokers, finders or other similar Person, or their respective designees, in connection with the incurrence or guarantee of any indebtedness by KREF or any of its Subsidiaries; (v) any issuance of any KREF Equity Securities upon the exchange, exercise or conversion of any options, warrants, rights or other securities exchangeable, exercisable for or convertible into KREF Equity Securities; provided that KREF shall have complied with the provisions of this Section 2.02 if applicable in connection with the initial issuance of such options, warrants, rights or other securities exchangeable, exercisable for or convertible into KREF Equity Securities; (vi) any issuance of KREF Equity Securities pursuant to a public offering occurring after registered under the date hereof that results Securities Act of 1933, as amended; (vii) any issuance of KREF Equity Securities in aggregate gross proceeds to the Maker of at least Fifty Million Dollars ($50,000,000)connection with any stock split, stock dividend, consent dividend or distribution or recapitalization transaction; or (iiiviii) shares any issuance of Common Stock issued upon the exercise or conversion of outstanding options, warrants or other Common Stock equivalents in existence on the Issuance Date. The rights granted REIT Shares pursuant to the Holder under this Section 3.5 may be waived with respect to any Preemptive Shares by a written waiver executed by the Holder4.06.

Preemptive Rights. (a) Except as set forth in Section 3.5(c), If the Maker shall not issue Corporation issues or sell sells any shares of Common Stock or other securitiesStock, or any rights or options to purchase Common Stock or other securitiessecurities exercisable for, or any debt or shares convertible into or exchangeable for Common Stock or other securitiesStock, whether now or hereafter authorized and whether unissued or in the treasury (collectively, “Preemptive Shares”), unless the Holder shall be entitled to participate in such issuance or sale unless (i) such issuance or sale is in connection with any merger, acquisition, exchange offer, conversion of outstanding convertible securities, exercise of outstanding options or warrants, dividend reinvestment plan, stock option or other executive or employee benefit or compensation plan, (ii) the Corporation receives any form of non-cash consideration in connection with such issuance or sale and the Holder is unable to provide consideration in a substantially identical form of such non-cash consideration, (iii) such issuance or sale occurs at any time on or after the first have been given date on which the right to acquire, Holder no longer owns at a price no less favorable than that at which such Preemptive Shares are to be offered to others, a portion least fifty percent (50%) of the Preemptive SharesOriginal Securities, as provided in or (iv) the issuance or sale is a Public Offering and the Holder has exercised its rights under Section 3.5(b)2.1 hereof. (b) The Maker If the Corporation proposes to conduct an issuance or sale in which the Holder is entitled to participate pursuant to Section 3.1, the Corporation shall give the Holder prior written notice of any such proposed issuance or sale described in Section 3.5(a), including the price at which such securities are to be offered and the time period for the offering, and sale. Such notice shall state that the Holder shall have thirty be entitled to participate in such issuance or sale on the same terms and conditions as are offered to other purchasers (30including purchase price and the form of consideration) days from in the giving of such notice within which to elect to acquire that number of the Preemptive Shares equal to the product of the total number of Preemptive Shares being offered and a fraction, determined same ratio as of the time immediately prior to the issuance of the Preemptive Shares, the numerator of which is equal to the sum of (i) the number of shares of Common Stock then held by Holder bears to the total number of issued and outstanding as a result shares of Common Stock of the conversion Corporation at such time (such that if the Holder owns 3% of this Notethe issued and outstanding Common Stock of the Corporation, and the Holder may acquire a number of shares equal to 3% of the shares issued or sold). (iic) In the case of a private placement of securities, upon the written request of the Holder made within twenty (20) days after the receipt of the Corporation's notice (which request shall specify the number of shares of Common Stock into which this Note could intended to be convertedacquired) the Corporation shall, and upon receipt of the denominator of which is equal consideration therefor, issue or sell to the sum of (x) Holder up to the number of shares of Common Stock then outstandingthe Holder is entitled to purchase under this Section 3.1 so long as such issuance or sale is not prohibited by applicable law and subject to such restrictions as may be required by applicable law. Nothing in this paragraph (c) shall prevent the Corporation from consummating the private placement; provided that the Holder is given the opportunity to purchase the applicable percentage of Common Stock after such private placement (in which case the number of shares which the Holder can purchase shall be determined based on the aggregate number of the shares issued in the private placement and the shares acquired by the Holder, if any). (yd) In the event of a Public Offering, the Corporation shall give the Holder notice of the proposed Public Offering of Common Stock not less than ten (10) days prior to the anticipated pricing date of the proposed Public Offering. Within two (2) hours after the Holder is given written notice of the offering price to the public in the offering, the Holder shall give irrevocable written confirmation of its intent to purchase the Common Stock (which confirmation shall specify the number of shares of Common Stock into intended to be acquired) and, if such confirmation is not made within such period, the Holder's rights under this Section 3.1 with respect to such offering shall automatically expire. If the Holder timely makes such a confirmation, on the next business day following the date of the confirmation the Holder shall deposit the purchase price for the shares being purchased in a brokerage account acceptable to the underwriter and grant an irrevocable power of attorney to an officer of the Corporation (which this Note could power of attorney shall be convertedin a customary form) authorizing such officer to take any actions necessary to effectuate the purchase. If the Holder has made the confirmation and the deposit as required, the Corporation shall issue or sell, or cause the underwriter to issue and (z) the number of shares of sell, such Common Stock issuable to the Holder upon conversion or exercise of all outstanding options, warrants and other rights for the purchase of capital stock delivery of the Companyconsideration therefor to the Corporation or underwriter, as applicable, so long as such issuance or sale is not prohibited by applicable law and all subject to such restrictions as may be required by applicable law. (e) In the event that the Corporation amends the terms of its outstanding shares of all series of Series A Senior Cumulative Preferred Stock so that such preferred stock (such number of Preemptive Shares being referred to herein as the “is convertible or exchangeable into Common Stock Preemptive Shares”(or securities exercisable for, convertible into or exchangeable for Common Stock). The , the Corporation shall offer to sell and issue to the Holder may acquire that portion securities having terms identical to such preferred stock, which securities represent the percentage of the Common Stock Preemptive Shares being offered such preferred stock equal to its the Holder's percentage ownership of interest in the outstanding Common Stock immediately preceding the issuance of the Preemptive Shares. If any transaction specified Corporation, for a consideration per share equal to the same consideration per share paid by the Maker in any such notice shall not be consummated within one hundred twenty (120) days from the date existing holders of such noticepreferred stock for the shares of such preferred stock outstanding as of November 7, 2001. (f) The Holder shall have no rights under this Section 3.1 as a result of any notice given hereunder by the Corporation shall again comply with if the provisions of this Section 3.5 proposed issuance or sale with respect to which such transaction, and the Holder shall again have preemptive rights hereunder with respect to the transaction, regardless of whether notice is given is not consummated for any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant to the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of the transaction proposed by the Makerreason. (c) The restrictions contained in, and preemptive rights granted under, this Section 3.5 shall not apply to: (i) shares of Common Stock issued upon conversion of this Note; (ii) shares of capital stock of the Maker issued in a public offering occurring after the date hereof that results in aggregate gross proceeds to the Maker of at least Fifty Million Dollars ($50,000,000); or (iii) shares of Common Stock issued upon the exercise or conversion of outstanding options, warrants or other Common Stock equivalents in existence on the Issuance Date. The rights granted to the Holder under this Section 3.5 may be waived with respect to any Preemptive Shares by a written waiver executed by the Holder.

Preemptive Rights. (a) Except (i) for issuances of pro rata dividends to all holders of Common Stock, (ii) stock issued to employees, officers or directors in connection with management options or incentive plans approved by the Board of Directors, (iii) stock issued in connection with any merger, acquisition or business combination, (iv) stock issued for consideration amounting to less than $500,000 in any single transaction where the purchase price is not less than the then applicable Conversion Price (as set forth defined in Section 3.5(cthe Articles Supplementary), provided that the Maker aggregate amount of all such transactions shall not issue or sell any exceed $1,000,000, (v) up to 5,167,328 shares of stock issuable upon conversion of the 6% Non-Voting Convertible Preferred Stock (as adjusted pursuant to the antidilution provisions therein), or (vi) up to 1,193,573 shares of stock issuable pursuant to the MCI Warrant (as adjusted pursuant to the antidilution provisions therein), in order to enable such holders to maintain their Fully Diluted percentage ownership of the Company, the holders of the Series A Preferred shall have preemptive rights, as hereinafter set forth, to purchase any capital stock, including any warrants or securities convertible into capital stock, of the Company hereafter issued by the Company so that a holder of the Series A Preferred shall hereafter be entitled to acquire a percentage of capital stock which is hereafter issued equal to the same percentage of the issued and outstanding Common Stock of the Company as is held (directly or other securities, or any rights or options obtainable upon conversion of the Series A Preferred) by such holder of Series A Preferred immediately prior to purchase Common Stock or other securities, or any debt or shares convertible into or exchangeable for Common Stock or other securities, whether now or hereafter authorized and whether unissued or in the treasury (collectively, “Preemptive Shares”), unless date on which the Holder shall first have been given the right to acquire, at a price no less favorable than that at which such Preemptive Shares are capital stock is to be offered to othersissued on a Fully Diluted basis. As used herein, a portion "issue" (and variations thereof) includes sales and transfers by the Company of the Preemptive Shares, as provided in Section 3.5(b)treasury shares. (b) The Maker shall Company shall, before issuing any additional capital stock (other than the exceptions referred to in Section 10(a) hereof), give the Holder prior written notice thereof to the holders of any proposed issuance or sale described in Section 3.5(a), including the price at which such securities are Series A Preferred. Such notice shall specify what type of instrument the Company intends to be offered issue and the time consideration which the Company intends to receive therefor. For a period for the offering, and the Holder shall have thirty of twenty (3020) days from following receipt by the giving of such notice within which to elect to acquire that number holders of the Preemptive Shares equal to the product of the total number of Preemptive Shares being offered and a fraction, determined as of the time immediately prior to the issuance of the Preemptive Shares, the numerator of which is equal to the sum of (i) the number of shares of Common Stock then outstanding as a result of the conversion of this Note, and (ii) the number of shares of Common Stock into which this Note could be converted, and the denominator of which is equal to the sum of (x) the number of shares of Common Stock then outstanding, (y) the number of shares of Common Stock into which this Note could be converted, and (z) the number of shares of Common Stock issuable upon conversion or exercise of all outstanding options, warrants and other rights for the purchase of capital stock of the Company, and all outstanding shares of all series of preferred stock (such number of Preemptive Shares being referred to herein as the “Common Stock Preemptive Shares”). The Holder may acquire that portion of the Common Stock Preemptive Shares being offered equal to its percentage ownership of the outstanding Common Stock immediately preceding the issuance of the Preemptive Shares. If any transaction specified by the Maker in any such notice shall not be consummated within one hundred twenty (120) days from the date Series A Preferred of such notice, the Corporation Company shall again comply with be deemed to have irrevocably offered to sell to the provisions holders of the Series A Preferred a sufficient number of shares of such capital stock so that the holders of the Series A Preferred, if such holders elects to acquire such shares as hereinafter set forth, shall be capable of acquiring the same percentage of such shares as the percentage of Common Stock beneficially owned (directly or obtainable upon conversion of the Series A Preferred) by such holders immediately prior to the proposed issuance on a Fully Diluted basis. In the event any such offer is accepted, in whole or in part, by the holders of the Series A Preferred, the Company shall sell such shares to holders of the Series A Preferred for the consideration and on the precise terms set forth in the Company's notice (given under the first two sentences of this paragraph). In the event that one or more holders of the Series A Preferred elects not to, or fails to, exercise its rights under this Section 3.5 with respect 10 within the twenty (20) day period, then the Company may issue the remaining shares of capital stock offered to, but not purchased by, such holders of the Series A Preferred, to third persons but only for the same consideration set forth in the Company's notice (given under the first two sentences of this paragraph) and no later than ninety (90) days after the expiration of such transaction, and twenty day period. The closing for such transaction shall take place as proposed by the Holder shall again have preemptive rights hereunder Company with respect to the transactionshares of capital stock proposed to be issued, regardless at which closing the Company shall deliver certificates for the shares of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant to capital stock in the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation respective names of the transaction proposed by holders of the MakerSeries A Preferred against receipt of the consideration therefor. (c) The restrictions contained inNotwithstanding any other provision hereof, and the preemptive rights granted under, to holders of Series A Preferred by this Section 3.5 10 shall not apply to: (i) shares of Common Stock issued upon conversion of this Note; (ii) shares of capital stock of the Maker issued in a public offering occurring after the date hereof that results in aggregate gross proceeds to the Maker of at least Fifty Million Dollars ($50,000,000); or (iii) shares of Common Stock issued upon the exercise or conversion of outstanding options, warrants or other Common Stock equivalents in existence on the Issuance Date. The rights granted to the Holder under this Section 3.5 may be waived terminate with respect to any Preemptive Shares by a written waiver executed by share of Series A Preferred upon the Holderconversion or redemption of such share of Series A Preferred in accordance with the provisions hereof or in the Articles Supplementary.

Preemptive Rights. (a) Except Sale of New Stock. As long as set forth in Section 3.5(cthe Investor owns Securities representing the Qualifying Ownership Interest (before giving effect to issuances triggering this Section), if at any time after the Maker shall not issue First Closing, the Company at any time or sell from time to time makes any public or non-public offering of Common Stock (or securities convertible or exchangeable into Common Stock) ("New Stock"), including any issuance of restricted stock or options to purchase stock to employees at a price of less than $17.50 per share up to a maximum of 5 million shares of Common Stock (other than (1) any other offering pursuant to any stock purchase plan, stock ownership plan, stock option plan or other securitiessimilar plan where stock is being issued or offered, to a trust, other entity or otherwise, for the benefit of any rights employees, officers or options directors of the Company or (2) any offering or issuance of LTWs (as defined in Section 4.7)), the Investor shall be afforded the opportunity to purchase Common Stock or other securitiesacquire from the Company for the same price and on the same terms (except that, or any debt or shares to the extent permitted by law, the Investor may elect to receive such securities in nonvoting form, convertible into or exchangeable for Common Stock or other securities, whether now or hereafter authorized and whether unissued or voting securities in the treasury (collectively, “Preemptive Shares”), unless the Holder shall first have been given the right to acquire, at a price no less favorable than that at which widely dispersed offering) as such Preemptive Shares securities are proposed to be offered to others, a portion of the Preemptive Shares, as provided in Section 3.5(b). (b) The Maker shall give the Holder prior written notice of any proposed issuance or sale described in Section 3.5(a), including the price at which such securities are to be offered and the time period for the offering, and the Holder shall have thirty (30) days from the giving of such notice within which to elect to acquire that number of the Preemptive Shares equal up to the product amount of New Stock required to enable it to maintain its proportionate Common Stock-equivalent interest in the Company. The amount of New Stock that the Investor shall be entitled to purchase shall be determined by multiplying (x) the total number of Preemptive Shares being such offered and shares of New Stock by (y) a fraction, determined as of the time immediately prior to the issuance of the Preemptive Shares, the numerator of which is equal to the sum of (i) the number of shares of Common Stock then outstanding as a result of held by the conversion of this Note, and (ii) the number of shares of Common Stock into which this Note could be convertedInvestor, and the denominator of which is equal to the sum of (x) the number of shares of Common Stock then outstanding; provided, (y) however, that for purposes of determining the number of shares of Common Stock into which this Note could be convertedoutstanding or held by the Investor, and such amount shall assume (zi) the number of shares of Common Stock issuable upon conversion or exercise of all outstanding options, options or warrants and other rights for the to purchase of capital stock of the CompanyCompany (including the SPRs and Warrants, and all outstanding shares but excluding any rights issued under the Rights Agreement unless such rights are exercisable at the time), (ii) the conversion of all series of preferred stock (such number of Preemptive Shares being referred to herein as the “Common Stock Preemptive Shares”). The Holder may acquire that portion convertible equity securities of the Common Stock Preemptive Shares being offered equal to its percentage ownership of the Company outstanding Common Stock immediately preceding the issuance of the Preemptive Shares. If any transaction specified by the Maker in any such notice shall not be consummated within one hundred twenty (120) days from the date of such notice, the Corporation shall again comply with the provisions of this Section 3.5 with respect to such transaction, and the Holder shall again have preemptive rights hereunder with respect to the transaction, regardless of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant to issuable on the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of the transaction proposed by the Maker. (c) The restrictions contained in, and preemptive rights granted under, this Section 3.5 shall not apply to: options or warrants referred to in (i) shares of Common Stock issued upon conversion of this Note; (ii) shares of capital stock of the Maker issued in a public offering occurring after the date hereof that results in aggregate gross proceeds to the Maker of at least Fifty Million Dollars ($50,000,000whether or not then convertible); or , and (iii) shares of Common Stock issued upon that the Series D Shares outstanding or issuable on the exercise of the options or conversion warrants referred to in (i) are convertible into the Reference Package of outstanding options, warrants or other Common Stock equivalents in existence on the Issuance Date. The rights granted to the Holder under this Section 3.5 may be waived with respect to any Preemptive Shares by a written waiver executed by the HolderSeries D Stock.

Preemptive Rights. (a) Except as set forth in Section 3.5(c)Until the earlier of (i) the closing of the IPO and (ii) the Fall-Away Event, if the Maker shall not Company proposes to issue or sell any capital stock of, other equity or voting interests in, or equity-linked securities of, the Company, including shares of Company Common Stock and any securities that are convertible or exchangeable into (or exercisable for) shares of Company Common Stock or any other class or series of capital stock of, other equity or voting interests in, or equity-linked securities of, the Company, including warrants, options or other rights in respect thereof (such securities, “New Securities”) to any Person or any rights or options to purchase Common Stock or other securitiesgroup (within the meaning of Section 13(d) of the Exchange Act) of Persons (each, or any debt or shares convertible into or exchangeable for Common Stock or other securities, whether now or hereafter authorized and whether unissued or in the treasury (collectively, a “Preemptive SharesProspective Subscriber”), unless then the Holder Stockholder shall first have been given be afforded the right opportunity to acquire, at a acquire from the Company up to its Preemptive Right Portion (as defined below) of the New Securities for the same price no less favorable than and on the same terms as that at which such Preemptive Shares are to be offered to otherseach Prospective Subscriber in accordance with the following provisions of this Section 6.4. The amount of New Securities that the Stockholder shall be entitled to purchase in the aggregate shall be determined by multiplying (A) the total number of such offered shares of New Securities by (B) a fraction, a portion the numerator of which is the number of shares of Company Common Stock then Beneficially Owned by the Stockholder and the denominator of which is the total number of outstanding shares of Company Common Stock (the “Preemptive Shares, as provided in Section 3.5(bRights Portion”). (b) The Maker Company shall give the Holder prior a written notice of any proposed issuance or sale described in Section 3.5(a), including (the price at which such securities are to be offered and the time period for the offering, and the Holder shall have thirty (30“Preemptive Rights Notice”) days from the giving of such notice within which to elect to acquire that number of the Preemptive Shares equal to the product of the total number of Preemptive Shares being offered and a fraction, determined as of the time immediately Stockholder at least ten (10) Business Days prior to the issuance and sale of the New Securities. The Preemptive SharesRights Notice will include the material terms and conditions of such issuance or sale, the numerator of which is equal to the sum of including (i) the number of shares of Common Stock then outstanding as a result of the conversion of this Notesuch New Securities to be offered, and (ii) the number price per security of shares of Common Stock into which this Note could be converted, the New Securities and the denominator of other material terms, if any, upon which is equal it proposes to the sum of offer such New Securities, (xiii) the number identity of shares of Common Stock then outstanding, each Prospective Subscriber and (yiv) the number of shares of Common Stock into which this Note could be converted, and (z) the number of shares of Common Stock issuable upon conversion or exercise of all outstanding options, warrants and other rights for the purchase of capital stock proposed date of the Company, and all outstanding shares of all series of preferred stock (such number of Preemptive Shares being referred to herein as the “Common Stock Preemptive Shares”). The Holder may acquire that portion issuance or sale of the Common Stock Preemptive Shares being offered equal to its percentage ownership of the outstanding Common Stock immediately preceding the issuance of the Preemptive Shares. If any transaction specified by the Maker in any such notice shall not be consummated within one hundred twenty (120) days from the date of such notice, the Corporation shall again comply with the provisions of this Section 3.5 with respect to such transaction, and the Holder shall again have preemptive rights hereunder with respect to the transaction, regardless of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant to the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of the transaction proposed by the MakerNew Securities. (c) By notification to the Company within ten (10) Business Days after the Preemptive Rights Notice is given (the “Preemptive Rights Election Period”), the Stockholder may elect in writing (the “Preemptive Rights Exercise Notice”) to purchase or otherwise acquire, at the same time and place and on the same terms and conditions as each Prospective Subscriber, up to the Preemptive Rights Portion of the New Securities. If, at the termination of the Preemptive Rights Election Period, the Stockholder has not exercised its rights under this Section 6.4 to purchase New Securities, the Stockholder shall be deemed to have waived any and all of its rights under this Section 6.4 solely with respect to such issuance and sale of New Securities and the Company may offer and sell such New Securities to any Person or Persons. (d) The restrictions contained inStockholder shall purchase the New Securities that it has elected to purchase under this Section 6.4 concurrently with the related issuance and sale of such New Securities by the Company (subject to the receipt of any required approvals) to the Prospective Subscribers. If the proposed issuance and sale by the Company of securities which gave rise to the exercise by the Stockholder of its preemptive rights pursuant to this Section 6.4 shall be terminated or abandoned by the Company without the issuance and sale of any New Securities, then the purchase rights of the Stockholder pursuant to this Section 6.4 shall also terminate as to such proposed issuance and sale by the Company (but not any subsequent or future issuance and sale), and preemptive rights granted underany funds in respect thereof paid to the Company or any other Person by the Stockholder in respect thereof shall be promptly refunded in full. (e) If, at the end of the 120th day after the date of the effectiveness of the Preemptive Rights Exercise Notice, the Company has not completed the applicable issuance and sale of New Securities, then the Stockholder shall be released from the Stockholder’s obligations under the written commitment, the Preemptive Rights Exercise Notice shall terminate, and it shall be necessary for a separate Preemptive Rights Notice to be furnished to the Stockholder, and the terms and provisions of this Section 3.5 6.4 separately complied with, in order to consummate such issuance and sale pursuant to this Section 6.4. (f) The provisions of this Section 6.4 shall not apply to: to issuances of New Securities by the Company: (i) shares to the Company or any of Common Stock issued upon conversion of this Note; its wholly owned Subsidiaries; (ii) shares of capital stock of the Maker issued in a public offering occurring after the date hereof that results in aggregate gross proceeds to the Maker of at least Fifty Million Dollars ($50,000,000); or (iii) shares of Common Stock issued upon the exercise or conversion of outstanding optionsany exchangeable, warrants exercisable or other convertible securities of the Company or the Company Subsidiaries, in each case, issued after the date hereof in a transaction for which the Stockholder had the opportunity to exercise its preemptive rights pursuant to this Section 6.4; (iii) to officers, employees, directors, independent contractors or consultants of the Company or its Subsidiaries in connection with such Person’s employment, independent contractor or consulting agreements or arrangements with the Company or the Company Subsidiaries; (iv) (A) as consideration payable to sellers in any business combination or acquisition transaction involving the acquisition of all or a part of a third party or a business of such third party by the Company or the Company Subsidiaries, (B) in connection with any joint venture or strategic partnership that is entered into for bona fide commercial or strategic purposes and not for purposes of raising capital (as determined by the Board or the appropriate committee of the Board in good faith), or (C) to third-party financial institutions, commercial lenders or any similar third parties in connection with the incurrence or guarantee of indebtedness by the Company or the Company Subsidiaries in a bona fide debt financing transaction (as determined by the Board or the appropriate committee of the Board in good faith); (v) in connection with any stock split, stock dividend paid on a proportionate basis to all holders of Company Common Stock equivalents in existence on Stock; or (vi) in, or after the Issuance Date. closing of, an IPO. (g) The election by the Stockholder to not exercise its preemptive rights granted to the Holder under this Section 3.5 may be waived with respect 6.4 in any one issuance and sale shall not affect its rights as to any Preemptive Shares by a written waiver executed by subsequent proposed issuance and sale of New Securities. The Company and the HolderStockholder shall cooperate in good faith to facilitate the exercise of the Stockholder’s rights pursuant to this Section 6.4.

Preemptive Rights. 1. So long as a Purchaser owns not less than fifty percent (a50%) Except as set forth in Section 3.5(c), of the Maker shall not issue Unit Shares (or sell any shares of Common Stock issued or other securitiesissuable upon conversion of such Unit Shares) purchased under the Purchase Agreement by such Purchaser as of the time of a determination under this Section, or any rights or options and subject to applicable securities laws, each Purchaser shall have a right of first refusal to purchase its pro rata share of all Common Stock or Equivalents that the Company may, from time to time, propose to sell and issue, other securities, or any debt or shares convertible into or exchangeable for Common Stock or other securities, whether now or hereafter authorized and whether unissued or in the treasury (collectively, “Preemptive Shares”), unless the Holder shall first have been given the right to acquire, at a price no less favorable than that at which such Preemptive Shares are to be offered to others, a portion of the Preemptive Shares, as provided in Section 3.5(b). (b) The Maker shall give the Holder prior written notice of any proposed issuance or sale described in Section 3.5(a), including the price at which such securities are to be offered and the time period for the offering, and the Holder shall have thirty (30) days from the giving of such notice within which to elect to acquire that number of the Preemptive Shares Excluded Securities. Each Purchaser’s pro rata share is equal to the product ratio of (A) the number of outstanding Unit Shares (including all shares of Common Stock issuable or issued upon conversion of such Unit Shares) of which such Purchaser is deemed to be a holder immediately prior to the issuance of such Common Stock Equivalents to (B) the total number of Preemptive Shares being offered and a fraction, determined as outstanding shares of Common Stock of the time Company on an as-converted basis immediately prior to the issuance of the Preemptive SharesCommon Stock Equivalents; provided, however, that such Purchaser shall not have right of first refusal to purchase more than twenty five percent (25%) of each offering of such Common Stock Equivalents. 2. If the Company proposes to issue any Common Stock Equivalents, it shall give each Purchaser written notice of its intention, describing the Common Stock Equivalents, the numerator of which is equal to the sum of (i) the number of shares of Common Stock then outstanding as a result of the conversion of this Note, and (ii) the number of shares of Common Stock into which this Note could be converted, price and the denominator terms and conditions upon which the Company proposes to issue the same. Each Purchaser shall have ten (10) Business Days from the receipt of which is equal such notice to the sum of (x) the number of shares of Common Stock then outstanding, (y) the number of shares of Common Stock into which this Note could be converted, and (z) the number of shares of Common Stock issuable upon conversion or exercise of all outstanding options, warrants and other rights for the agree to purchase of capital stock of the Company, and all outstanding shares of all series of preferred stock (such number of Preemptive Shares being referred to herein as the “Common Stock Preemptive Shares”). The Holder may acquire that portion its pro rata share of the Common Stock Preemptive Shares being offered equal Equivalents (except as provided above) for the price and upon the terms and conditions specified in the notice by giving written notice to its percentage ownership the Company and stating therein the quantity of the outstanding Common Stock immediately preceding Equivalents to be purchased. Notwithstanding the issuance of foregoing, the Preemptive Shares. If any transaction specified by the Maker in any such notice Company shall not be consummated within one hundred twenty required to offer or sell such Common Stock Equivalents to any Purchaser who would cause the Company to be in violation of applicable federal securities laws by virtue of such offer or sale. 3. If not all of the Purchasers elect to purchase their pro rata share of the available Common Stock Equivalents, then the Company shall promptly notify in writing the Purchasers who do so elect and shall offer such Purchasers the right to acquire such unsubscribed shares on a pro rata basis among such participating Purchasers. The Purchasers shall have five (1205) days from the date after receipt of such noticenotice to notify the Company of its election to purchase all or a portion thereof of the unsubscribed shares. The Company shall have ninety (90) days thereafter to sell the Common Stock Equivalents in respect of which the Purchasers’ rights were not exercised, at a price not lower and upon terms and conditions not more favorable, or in preference to the rights granted, to the purchasers thereof than specified in the Company’s notice to the Purchasers pursuant to Section 8(a)(2) hereof. If the Company has not sold such Common Stock Equivalents within such ninety (90) day period, the Corporation Company shall again comply with the provisions of this Section 3.5 with respect to not thereafter issue or sell any Common Stock Equivalents, without first offering such transaction, and the Holder shall again have preemptive rights hereunder with respect securities to the transaction, regardless of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant to Purchasers in the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of the transaction proposed by the Makermanner provided above. (c) The restrictions contained in, and preemptive rights granted under, this Section 3.5 shall not apply to: (i) shares of Common Stock issued upon conversion of this Note; (ii) shares of capital stock of the Maker issued in a public offering occurring after the date hereof that results in aggregate gross proceeds to the Maker of at least Fifty Million Dollars ($50,000,000); or (iii) shares of Common Stock issued upon the exercise or conversion of outstanding options, warrants or other Common Stock equivalents in existence on the Issuance Date. The rights granted to the Holder under this Section 3.5 may be waived with respect to any Preemptive Shares by a written waiver executed by the Holder.

Preemptive Rights. (a) Except as set forth in Section 3.5(c), If the Maker shall not Company proposes to issue and sell any of its shares of Common Stock or sell any securities containing options or rights to acquire any shares of Common Stock or other securities, any securities convertible or exchangeable into shares of Common Stock to MDCP or any rights or options of their respective Affiliates, the Company will offer to purchase Common Stock or other securities, or any debt or shares convertible into or exchangeable for Common Stock or other securities, whether now or hereafter authorized and whether unissued or in each of the treasury (collectively, “Preemptive Shares”), unless the Holder shall first have been given the right to acquire, at a price no less favorable than that at which such Preemptive Shares are to be offered to others, Executives a portion of the Preemptive Shares, as provided in Section 3.5(b). (b) The Maker shall give the Holder prior written notice number or amount of any proposed issuance or sale described in Section 3.5(a), including the price at which such securities are proposed to be offered and the time period for the offering, and the Holder shall have thirty (30) days from the giving sold in any such transaction or series of such notice within which to elect to acquire that number of the Preemptive Shares related transactions equal to the product of the total number of Preemptive Shares being offered and a fraction, determined as of the time immediately prior to the issuance of the Preemptive Shares, the numerator of which is equal to the sum of (i) the number percentage each such Executive and such Executive’s Permitted Transferees holds of all shares of Common Stock then outstanding as a result of held by the conversion of this Note, Executives and MDCP and (ii) the number of shares represented by the securities proposed to be issued and sold by the Company in any such transaction or series of Common Stock into which related transactions, all for the same price and upon the same terms and conditions as the securities that are being offered to MDCP and their respective Affiliates in such transaction or series of transactions. (b) Notwithstanding the foregoing, the provisions of this Note could Section 10 shall not be converted, and the denominator of which is equal applicable to the sum of (x) the number issuance of shares of Common Stock then outstanding, (yi) upon the number conversion of shares of one class of Common Stock into which this Note could be converted, and shares of another class; (zii) as a dividend on all the number of outstanding shares of Common Stock; (iii) in any transaction in respect of a security that is available to all holders of such security on a pro rata basis, provided, that for purposes of this clause (iii) all classes of Common Stock issuable upon conversion shall be treated as a single security; (iv) in connection with grants of stock or exercise of all outstanding options, warrants and other rights for the purchase of capital stock options to employees or directors of the Company, and all outstanding shares of all series of preferred stock ; or (such number of Preemptive Shares being referred to herein as the “Common Stock Preemptive Shares”). The Holder may acquire that portion of the Common Stock Preemptive Shares being offered equal to its percentage ownership of the outstanding Common Stock immediately preceding the issuance of the Preemptive Shares. If any transaction specified by the Maker v) in any such notice shall not be consummated within one hundred twenty (120) days from the date of such notice, the Corporation shall again comply with the provisions of this Section 3.5 with respect to such transaction, and the Holder shall again have preemptive rights hereunder with respect to the transaction, regardless of whether any such stockholder had previously exercised an offering or failed to exercise such rights. Any purchase sale of securities pursuant to the exercise of preemptive rights shall be consummated simultaneously a registration statement filed with, and shall be conditioned upondeclared effective by, consummation of the transaction proposed by Securities and Exchange Commission pursuant to the MakerSecurities Act. (c) The restrictions contained inCompany will deliver or cause to be delivered to each Executive a written notice setting forth the terms and conditions (including the consideration per share) upon which an Executive may purchase such shares or other securities (the “Preemptive Notice”). After receiving a Preemptive Notice, an Executive must deliver or cause to be delivered to the Company a written notice (the “Preemptive Reply”) within 45 days of the date of such Preemptive Notice that such Executive agrees to purchase the shares or other securities offered pursuant to this Section 10 on the date of sale to MDCP and their respective Affiliates. If any Executive fails to make a Preemptive Reply in accordance with this Section 10, shares or other securities offered to such Executive in accordance with this Section 10 may thereafter, for a period not exceeding six months following the expiration of such 45-day period, be issued, sold or subjected to rights or options to MDCP and its Affiliates at a price not less than that at which they were offered to the Executives and on such other terms and conditions no more favorable than those offered to the Executives. Any such shares or other securities not so issued, sold or subjected to rights or options to MDCP and their respective Affiliates during such six-month period will thereafter again be subject to the preemptive rights granted under, provided for in this Section 3.5 shall not apply to: (i) shares of Common Stock issued upon conversion of this Note; (ii) shares of capital stock of the Maker issued in a public offering occurring after the date hereof that results in aggregate gross proceeds to the Maker of at least Fifty Million Dollars ($50,000,000); or (iii) shares of Common Stock issued upon the exercise or conversion of outstanding options, warrants or other Common Stock equivalents in existence on the Issuance Date. The rights granted to the Holder under this Section 3.5 may be waived with respect to any Preemptive Shares by a written waiver executed by the Holder10.

Preemptive Rights. (a) Except as set forth in Section 3.5(c), The Company hereby grants to the Maker shall not issue or sell any shares of Common Stock or other securities, or any rights or options to purchase Common Stock or other securities, or any debt or shares convertible into or exchangeable for Common Stock or other securities, whether now or hereafter authorized and whether unissued or in the treasury (collectively, “Preemptive Shares”), unless the Holder shall first have been given Holders the right to acquirepurchase their respective Pro Rata Share of any “New Securities” (as defined in this Section 6.2) that the Company may, at a price no less favorable than that at which from time to time propose to sell and issue (such rights, the “Preemptive Rights”). Such “Pro Rata Share” (defined below), for purposes of such Preemptive Shares are to be offered to othersRights, a portion of the Preemptive Shares, as provided in Section 3.5(b). (b) The Maker shall give the Holder prior written notice of any proposed issuance or sale described in Section 3.5(a), including the price at which such securities are to be offered and the time period for the offering, and the Holder shall have thirty (30) days from the giving of such notice within which to elect to acquire that number of the Preemptive Shares is equal to the product of obtained by multiplying (x) the total aggregate number of Preemptive Shares being offered and New Securities to be issued by (y) a fraction, determined as of the time immediately prior to the issuance of the Preemptive Shares, the numerator of which is equal to the sum number of Warrant Shares then held by the Holders (iassuming the exercise of all of the Warrants) and the denominator of which is the total number of shares of Common Stock then outstanding on a fully-diluted basis. Such Preemptive Rights shall be subject to the following provisions: (b) “New Securities” shall be Common Stock (or any security convertible or exchangeable into Common Stock) sold or issued by the Company after the date of this Agreement, other than shares of Common Stock issued or issuable in connection with any of the following: (i) to officers, directors or employees of, or consultants or contractors to, the Company, pursuant to a stock grant, stock option, restricted stock purchase agreement, stock appreciation right, option plan, purchase plan or other employee stock incentive program or agreement, in each case, where such grant, plan or program is approved by the Board of Directors and where the shares are issued or granted at then Current Market Value (as defined in the Warrant Agreement); (ii) upon the exercise of the Warrants, or under other warrants, options or convertible securities outstanding on the date hereof (including, in either case, shares issued as a result of the conversion operation of this Noteanti-dilution provisions contained therein); (iii) pursuant to an underwritten public offering; (iv) to clients, and (ii) the number of shares of Common Stock into which this Note could be convertedcustomers, and the denominator of which is equal to the sum of (x) the number of shares of Common Stock then outstanding, (y) the number of shares of Common Stock into which this Note could be converted, and (z) the number of shares of Common Stock issuable upon conversion vendors or exercise of all outstanding options, warrants and other rights for the purchase of capital stock suppliers of the Company, provided that such issuance is approved by a majority of the Board of Directors, and provided that such issuances in the aggregate (together with all outstanding issuances pursuant to clauses (v) and (vi)) shall not exceed ten percent (10%) of the Company’s common stock on a fully-diluted basis; (v) to institutional financing sources in connection with such entities providing debt financing to the Company or one of its Subsidiaries, provided that such arrangements are approved by a majority of the Board of Directors, and provided that such issuances in the aggregate (together with all issuances pursuant to clauses (iv) and (vi)) shall not exceed ten percent (10%) of the Company’s common stock on a fully-diluted basis; (vi) issued or issuable in consideration of the acquisition by the Company of the assets, capital stock or other equity interests of, or in connection with a joint venture with, another entity (including, without limitation, shares issued to key employees of such sellers), provided that such issuance is approved by the Board of Directors, and provided that such issuances (together will all series issuances under clauses (iv) and (v)) shall not exceed ten percent (10%) of preferred the Company’s common stock on a fully diluted basis; and; (such number vii) in any stock split, stock dividend, or similar recapitalization that affects all security holders of Preemptive Shares being referred like Class or Series proportionately. (c) In the event that the Company proposes to herein as undertake an issuance of New Securities, it shall give the “Common Stock Preemptive Shares”)Holders written notice of its intention, describing the price and the general terms upon which the Company proposes to issue the same. The Holder may acquire that portion Holders shall have thirty (30) days after receipt of such notice to agree to purchase up to their Pro Rata Share of such New Securities (determined pursuant to Section 6.2(a)) at the price and upon the other terms specified in the notice by giving written notice to the Company and stating therein the quantity of New Securities to be purchased. (d) Whether or not any of the Common Stock Holders exercise their respective Preemptive Shares being offered equal Rights within the period specified above, the Company shall have ninety (90) days thereafter to its percentage ownership sell (or enter into an agreement pursuant to which the sale of New Securities covered thereby shall be closed, if at all, within ninety (90) days after the outstanding Common Stock immediately preceding date of said agreement) the issuance of New Securities at a price and upon terms no more favorable as a whole to the Preemptive Sharespurchasers thereof than specified in the Company’s notice. If any transaction specified by In the Maker event the Company has not sold the New Securities within such 90-day period (or sold and issued New Securities in any such notice shall not be consummated accordance with the foregoing within one hundred twenty ninety (12090) days from the date of such notice, agreement) the Corporation Company shall again comply with the provisions of this Section 3.5 with respect to not thereunder issue or sell any New Securities without first offering such transaction, and the Holder shall again have preemptive rights hereunder with respect New Securities to the transaction, regardless Holders in the manner provided above. The closing of whether the sale of New Securities to the Holders and other purchasers shall occur simultaneously. The exercise or non-exercise of the Preemptive Rights of any such stockholder had previously exercised or failed of the Holders hereunder shall not adversely affect the Holders’ rights to exercise such rights. Any purchase of securities pursuant to the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of the transaction proposed by the MakerPreemptive Rights for any subsequent issuances or sales. (ce) The restrictions contained inPreemptive Rights hereunder shall survive so long as any Indebtedness under the Debentures remains outstanding or the Purchasers hold, and preemptive rights granted underin the aggregate, this Section 3.5 shall not apply to: (i) at least 83% of the shares of Common Stock issued and/or issuable upon conversion of this Note; (ii) shares of capital stock exercise of the Maker issued Warrants (subject to adjustment in connection with a public offering occurring after the date hereof that results in aggregate gross proceeds to the Maker of at least Fifty Million Dollars ($50,000,000stock split, stock dividend or like recapitalization); or (iii) shares of Common Stock issued upon the exercise or conversion of outstanding options, warrants or other Common Stock equivalents in existence on the Issuance Date. The rights granted to the Holder under this Section 3.5 may be waived with respect to any Preemptive Shares by a written waiver executed by the Holder.

Preemptive Rights. (a) Except for the issuance of: (i) Common Stock and Options to acquire Common Stock pursuant to options, incentive or compensation plans approved by the Board of Directors of the Company to employees, directors and independent contractors in an aggregate amount after the date hereof that does not exceed (x) 1,050,000 shares of Common Stock, whether issued as set forth in Section 3.5(c), the Maker shall not issue or sell any shares of Common Stock or other securitiesas Options to acquire Common Stock, or any rights or options to purchase and (y) 431,000 shares of Common Stock issuable upon exercise of Options outstanding on the Closing Date (in each case, as adjusted to reflect any stock split, reverse stock split, stock dividend or other securities, similar event consummated after the date hereof), (ii) Equity Securities issued as all or any debt or shares convertible into or exchangeable for Common Stock or other securities, whether now or hereafter authorized and whether unissued or in the treasury (collectively, “Preemptive Shares”), unless the Holder shall first have been given the right to acquire, at a price no less favorable than that at which such Preemptive Shares are to be offered to others, a portion of the Preemptive Sharespurchase consideration paid to the sellers in the acquisition of another company or business which has been approved by the Board of Directors of the Company (iii) Equity Securities issued upon the exercise of any Warrant, or the exercise, conversion or exchange of any Option or Common Stock Equivalent described in the Capital Stock Schedule or issued in accordance with the terms of this Agreement after the date of this Agreement, so long as such issuance is made pursuant to the terms of such Option or Common Stock Equivalent as in effect on the date hereof or at the time it was issued, as provided in Section 3.5(b).applicable, (biv) The Maker shall give Equity Securities issued to any Purchaser pursuant to this Agreement, (v) Common Stock in a stock dividend, stock split or similar event, or (vi) Common Stock issued pursuant to a public offering registered under the Holder prior written notice Securities Act of 1933, as amended, so long as any proposed shares of Underlying Common Stock remain outstanding, if the Company at any time after the Closing authorizes the issuance or sale described in Section 3.5(a)of or proposes to sell, including any Equity Securities, the price at which such securities are Company shall first offer to be offered and the time period for the offering, and the Holder shall have thirty (30) days from the giving sell to each holder of Underlying Common Stock a portion of such notice within which to elect to acquire that number of the Preemptive Shares Equity Securities equal to the product quotient determined by dividing (1) the number of shares of Underlying Common Stock (assuming all Warrants have been exercised for Underlying Common Stock) held by such holder by (2) the total number of Preemptive Shares being offered and a fraction, determined as of the time immediately prior to the issuance of the Preemptive Shares, the numerator of which is equal to the sum of (i) the number of shares of Common Stock then outstanding immediately prior to such issuance (assuming all Warrants have been exercised for Underlying Common Stock and all in-the-money Options and Common Stock Equivalents have been exercised or exchanged for or converted into Common Stock in accordance with their terms). Each holder of Underlying Common Stock shall be entitled to purchase all or any portion of such Equity Securities at the most favorable price and on the most favorable terms as such Equity Securities are to be offered to any other Persons. (b) To exercise its purchase rights under this Section 4E, a result holder of Underlying Common Stock must within 15 business days after receipt of written notice from the Company describing in reasonable detail the Equity Securities being offered, the purchase price thereof, the payment terms and such holder’s percentage allotment, deliver a written notice to the Company describing its election hereunder. If all of the conversion Equity Securities offered to the holders of this Note, and (ii) the number of shares of Underlying Common Stock into which this Note could are not fully subscribed by such holders, the remainder of such Equity Securities shall be converted, and reoffered by the denominator of which is equal Company to the sum of (x) holders purchasing their full allotment upon the number of shares of Common Stock then outstandingterms set forth in this paragraph, (y) the number of shares of Common Stock into which this Note could be converted, and (z) the number of shares of Common Stock issuable upon conversion or except that such holders must exercise of all outstanding options, warrants and other their purchase rights for the purchase of capital stock of the Company, and all outstanding shares of all series of preferred stock (such number of Preemptive Shares being referred to herein as the “Common Stock Preemptive Shares”). The Holder may acquire that portion of the Common Stock Preemptive Shares being offered equal to its percentage ownership of the outstanding Common Stock immediately preceding the issuance of the Preemptive Shares. If any transaction specified by the Maker in any such notice shall not be consummated within one hundred twenty (120) 5 business days from the date after receipt of such notice, the Corporation shall again comply with the provisions of this Section 3.5 with respect to such transaction, and the Holder shall again have preemptive rights hereunder with respect to the transaction, regardless of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant to the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of the transaction proposed by the Makerreoffer. (c) The restrictions contained inUpon the expiration of the offering periods described above, the Company shall be entitled to sell such Equity Securities which the holders of Underlying Common Stock have not elected to purchase during the 90 days following such expiration on terms and preemptive rights granted under, conditions no more favorable to the purchasers thereof than those offered to such holders. Any Equity Securities offered or sold by the Company after such 90-day period must be reoffered to the holders of Underlying Common Stock pursuant to the terms of this Section 3.5 shall not apply to:4E. (id) shares Nothing contained in this Section 4E shall be deemed to amend, modify or limit in any way the restrictions on the issuance of Common Stock issued upon conversion of Equity Securities set forth elsewhere in this Note; (ii) shares of capital stock Agreement or in any other agreement to which the Company or any Subsidiary of the Maker issued in a public offering occurring after the date hereof that results in aggregate gross proceeds to the Maker of at least Fifty Million Dollars ($50,000,000); or (iii) shares of Common Stock issued upon the exercise or conversion of outstanding options, warrants or other Common Stock equivalents in existence on the Issuance Date. The rights granted to the Holder under this Section 3.5 may be waived with respect to any Preemptive Shares by a written waiver executed by the HolderCompany is bound.

Preemptive Rights. (a) Except as set forth in Section 3.5(c), The Company shall give each Stockholder forty-five (45) days’ prior written notice (the Maker shall not issue “Preemptive Notice”) of the proposed issuance or sell sale by the Company of any shares of Common Stock or any Common Stock Equivalent (each, a “New Issuance”) other securities, or any rights or options to purchase than Common Stock or Common Stock Equivalents issued or sold by the Company (i) to the Company’s employees, consultants or directors pursuant to arrangements approved by the Required Shares, (ii) in connection with acquisitions of other securitiescompanies or businesses, (iii) as a stock split or stock dividend, (iv) pursuant to the exercise, conversion or exchange of any then outstanding Common Stock Equivalent, (v) pursuant to a public offering registered under the Securities Act, or any debt or shares convertible into or exchangeable for Common Stock or other securities(vi) in connection with a Change of Control Transaction. The Preemptive Notice shall specify the (i) number and class of securities to be issued, whether now or hereafter authorized (ii) rights, terms and whether unissued or in privileges thereof (including the treasury (collectively, “Preemptive Shares”proposed issuance date), unless the Holder shall first have been given the right to acquire, at a (iii) price no less favorable than that at which such securities shall be issued, and (iv) portion such Stockholder shall be entitled to purchase pursuant to this Section 9(a). Each Stockholder shall be entitled to purchase that portion of a New Issuance offered on the date of the sale specified in the Preemptive Notice equal to a fraction, the numerator of which shall be the total number of Shares owned by such Stockholder, giving effect, without duplication, to all Common Stock Equivalents owned by such Stockholder, whether or not then convertible, exercisable or exchangeable, but only to the extent then vested, and the denominator of which shall be the total number of Shares then outstanding, giving effect, without duplication, to all Common Stock Equivalents outstanding, whether or not then convertible, exercisable or exchangeable, but only to the extent then vested (including such Stockholder’s Shares), at the most favorable price and on the most favorable terms as are offered to any other Persons, by giving written notice of such election to the Company within twenty-five (25) days after notice of such New Issuance has been given to such Stockholder (the “Exercise Reply”); provided, however, that no Stockholder shall have any right to purchase securities pursuant to this Section 9(a) if, (i) prior to a sale of securities to such Stockholder pursuant to this Section 9(a), such securities would be required to be offered registered under the Securities Act or (ii) the dilution of any Stockholder’s Shares would be as a result of a monetary investment in the Company from a third party investor that is neither an MSC Party, UG LLC, nor any of their Affiliates (a “Third Party Investment”) further provided, however that in the event that a MSC Party or any of their Affiliates is allowed to othersparticipate in any manner in such New Issuance related to a Third Party Investment, UG LLC and their Affiliates shall be entitled to participate in a portion similar manner as the MSC Party or their Affiliates in such New Issuance. The failure of a Stockholder to give an Exercise Reply in accordance with this Section 9(a) shall be deemed a waiver of the Preemptive Shares, as provided in Stockholder’s rights under this Section 3.5(b9(a). (b) The Maker shall give the Holder prior written notice of If any proposed issuance or sale described Stockholder fails to make an Exercise Reply in accordance with Section 3.5(a9(a), including the Common Stock or Common Stock Equivalent offered to the Stockholder in accordance with Section 9(a) may thereafter, for a period not exceeding 180 days following the expiration of such 15-day period, be issued, sold, or subjected to rights or options to the person or entity in the transaction or series of transactions at a price not less than the price at which they were offered to the Stockholders and on other terms and conditions no more favorable in the aggregate to the person or entity that those offered to the Stockholders. Any Common Stock or Common Stock Equivalent not so issued, sold, or subjected to rights or options to any such securities are person or entity during the 180-day period will thereafter again be subject to the participation rights stated in Section 9(a). The closing of any purchase by the Stockholders pursuant to Section 9(a) shall be offered and held at the time period for and place of the offeringclosing of, and on the Holder same terms and conditions as, the New Issuance, or at such other time and place as the parties to the transaction may agree. At such closing the participating Stockholders shall have thirty (30) days from the giving of such notice within which to elect to acquire that number deliver, by certified or official bank check or wire transfer, so much of the Preemptive Shares equal to the product purchase price for its portion of the total number of Preemptive Shares being offered New Issuance as is payable in cash and a fraction, determined as shall pay the balance in accordance with the agreed upon terms of the time immediately prior to the issuance of the Preemptive Shares, the numerator of which is equal to the sum of (i) the number of shares of Common Stock then outstanding as a result of the conversion of this Note, and (ii) the number of shares of Common Stock into which this Note could be converted, and the denominator of which is equal to the sum of (x) the number of shares of Common Stock then outstanding, (y) the number of shares of Common Stock into which this Note could be converted, and (z) the number of shares of Common Stock issuable upon conversion or exercise of all outstanding options, warrants and other rights for the purchase of capital stock of the Companytransaction, and all outstanding shares of all series of preferred stock (parties thereto shall execute such number of Preemptive Shares being referred to herein documents as the “Common Stock Preemptive Shares”). The Holder may acquire that portion of the Common Stock Preemptive Shares being offered equal to its percentage ownership of the outstanding Common Stock immediately preceding the issuance of the Preemptive Shares. If any transaction specified by the Maker in any such notice shall not be consummated within one hundred twenty (120) days from the date of such notice, the Corporation shall again comply with the provisions of this Section 3.5 with respect to such transaction, are otherwise customary and the Holder shall again have preemptive rights hereunder with respect to the transaction, regardless of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant to the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of the transaction proposed by the Makerappropriate. (c) The restrictions contained in, and preemptive rights granted under, this Section 3.5 shall not apply to: (i) shares of Common Stock issued upon conversion of this Note; (ii) shares of capital stock of the Maker issued in a public offering occurring after the date hereof that results in aggregate gross proceeds to the Maker of at least Fifty Million Dollars ($50,000,000); or (iii) shares of Common Stock issued upon the exercise or conversion of outstanding options, warrants or other Common Stock equivalents in existence on the Issuance Date. The rights granted to the Holder under this Section 3.5 may be waived with respect to any Preemptive Shares by a written waiver executed by the Holder.

Preemptive Rights. (a) Except as set forth in Section 3.5(c)If at any time after the Closing, the Maker shall not issue Company at any time or sell from time to time makes any shares public or non-public offering of Common Stock or other securitiesNew Capital Stock, or any rights or options to purchase Common Stock or other securities, or any debt or shares convertible into or exchangeable for Common Stock or other securities, whether now or hereafter authorized and whether unissued or in the treasury (collectively, “Preemptive Shares”), unless the Holder each Purchaser shall first have been given be offered the right opportunity to acquire, at a acquire from the Company for the same price no less favorable than that at which and on the same terms as such Preemptive Shares securities are proposed to be offered to others, a portion up to the amount of New Capital Stock as is required to enable it to maintain its proportionate interest in the Preemptive SharesCompany. The amount of New Capital Stock each Purchaser shall be entitled to purchase (or, as provided in Section 3.5(b). (b) The Maker shall give the Holder prior written notice case of any proposed issuance or sale described in Section 3.5(a)Rights, including the price at which such securities are to be offered and the time period for the offering, and the Holder shall have thirty (30) days from the giving of such notice within which to elect Rights to acquire that a number of the Preemptive Shares equal to the product shares of New Capital Stock) shall be determined by multiplying (x) the total number of Preemptive Shares being such offered and shares, or, in the case of Rights, the total number of such shares covered by Rights, by (y) a fraction, determined as of the time immediately prior to the issuance of the Preemptive Shares, the numerator of which is equal to the sum of (i) the number of shares of Purchased Shares (determined on an as converted into Series A Common Stock then outstanding as basis) and Conversion Shares held by such Purchaser and, if such Purchaser is a result of the conversion of this NoteCanadian Purchaser, and (ii) the number of shares of Series C Preferred (determined on an as converted into Series A Common Stock into which this Note could be convertedbasis) and Series A Common Stock issued upon exercise of the Canadian MSO Warrants, and the denominator of which is equal to the sum of (x) the number of shares of Common Stock then outstanding; provided, (y) however, that for purposes of -------- ------- determining the number of shares of Common Stock into which this Note could be convertedoutstanding, and (z) the number of such amount shall include, without duplication, shares of Common Stock issuable upon the conversion of outstanding shares of Preferred Stock or other outstanding convertible equity securities of the Company and shares of Common Stock issuable upon the exercise of all outstanding options, warrants and Rights to purchase Common Stock (or other rights for the purchase of capital stock securities of the Company). (b) Notwithstanding the foregoing, and all outstanding shares no Person shall be entitled to any preemptive rights in respect of all series of preferred stock (such number of Preemptive Shares being referred to herein as the “Common Stock Preemptive Shares”). The Holder may acquire that portion of the Common Stock Preemptive Shares being offered equal to its percentage ownership of the outstanding Common Stock immediately preceding the issuance of shares of New Capital Stock issued to satisfy Rights theretofore issued and as to which such Person theretofore had the Preemptive Sharesopportunity to exercise preemptive rights pursuant to this Section 8. (c) In the event the Company proposes to offer New Capital Stock, it shall give each Purchaser written notice of its intention, describing the type of New Capital Stock to be offered, and the price and other terms upon which the Company proposes to offer the same. If any transaction specified by the Maker in any such Such notice shall not be consummated within one hundred constitute an offer to each Purchaser to purchase such New Capital Stock. Each Purchaser shall have twenty (12020) days from the date of receipt of any such noticenotice to notify the Company in writing that it intends to exercise such preemptive rights and as to the amount of New Capital Stock such Purchaser desires to purchase, up to the maximum amount calculated pursuant to subsection (a). Such notice shall constitute an agreement of such Purchaser to purchase the amount of New Capital Stock so specified upon the price and other terms set forth in the Company's notice to it. (d) If any Purchaser exercises its preemptive right hereunder, the Corporation closing of the purchase of the New Capital Stock with respect to which such right has been exercised shall again take place within forty-five (45) calendar days after the Purchaser's giving of notice of such exercise, which period of time shall be extended for a maximum of one hundred thirty-five (135) days in order to comply with applicable laws and regulations. Each of the provisions of Company and any Purchaser which has agreed to purchase New Capital Stock agrees to use its commercially reasonable efforts to secure any regulatory approvals or other consents, and to comply with any law or regulation necessary in connection with the offer, sale and purchase of, such New Capital Stock. (e) In the event any Purchaser fails to exercise its preemptive rights provided in this Section 3.5 8.2 within said twenty (20) day period or, if so exercised, such Purchaser is unable to consummate such purchase within the time period specified in paragraph (d) above because of its failure to obtain any required regulatory consent or approval, the Company shall thereafter be entitled during the period of ninety (90) days following the conclusion of the applicable period to sell or enter into an agreement (pursuant to which the sale of the New Capital Stock covered thereby shall be consummated, if at all, within thirty (30) days from the date of said agreement) to sell the New Capital Stock or Rights not elected to be purchased pursuant to this Section 8.2 or which such electing Purchaser is unable to purchase because of such failure to obtain any such consent or approval, at a price and upon terms no more favorable to the purchasers of such securities than were specified in the Company's notice to the Purchasers. Notwithstanding the foregoing, if such sale is subject to the receipt of any regulatory approval or expiration of any waiting period, the time period during which such sale may be consummated shall be extended until the expiration of five Business Days after all such approvals have been obtained or waiting periods expired, but in no event shall such time period exceed one hundred eighty (180) days from the date of the applicable agreement with respect to such transactionsale. In the event the Company has not sold the New Capital Stock or entered into an agreement to sell the New Capital Stock within said ninety (90) day period (or sold and issued New Capital Stock in accordance with the foregoing within thirty (30) days from the date of said agreement (as such period may be extended in the manner described above for a period not to exceed 180 days from the date of said agreement)), the Company shall not thereafter offer, issue or sell such New Capital Stock without again offering such securities to the Purchasers in the manner provided above. (f) All actions and determinations by, and the Holder shall again have preemptive rights hereunder all notices by or to, any Controlled Affiliate of a Canadian Purchaser, or Additional Canadian MSO, that is a permitted transferee of Rogers or Shaw, respectively, with respect to the transaction, regardless of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant to the exercise of preemptive rights in this Section 8 shall be consummated simultaneously withdeemed validly taken or made (in the case of actions or determinations) or given (in the case of notices), if taken, made or given, as the case may be, by or to Rogers or Shaw, respectively (or their respective successors), and such actions, determinations and notices shall be conditioned upon, consummation binding upon all such Controlled Affiliates or Additional Canadian MSO's for all purposes of the transaction proposed by the Maker. (c) The restrictions contained in, and preemptive rights granted under, this Section 3.5 shall not apply to: (i) shares of Common Stock issued upon conversion of this Note; (ii) shares of capital stock of the Maker issued in a public offering occurring after the date hereof that results in aggregate gross proceeds to the Maker of at least Fifty Million Dollars ($50,000,000); or (iii) shares of Common Stock issued upon the exercise or conversion of outstanding options, warrants or other Common Stock equivalents in existence on the Issuance Date. The rights granted to the Holder under this Section 3.5 may be waived with respect to any Preemptive Shares by a written waiver executed by the Holder8.

Preemptive Rights. (a) Except So long as set forth the Company has not consummated a Public Offering (as defined in Section 3.5(c6.1(e)), if the Maker shall not Company proposes to issue and sell any of its shares of Common Stock or sell any securities containing options or rights to acquire any shares of Common Stock or other securities, or any rights or options to purchase securities convertible into shares of Common Stock (such shares and other securities are hereinafter collectively referred to as "Newly Issued Stock") to the Fund or other securities, or any debt or shares convertible into or exchangeable for its Affiliates to whom the Fund has transferred Common Stock or other securities(hereinafter, whether now or hereafter authorized and whether unissued or in the treasury (collectively, “Preemptive Shares”a "Fund Issuance"), unless the Holder shall Company will first have been given offer to each of the right other Investors who is an "accredited investor" or, if not an accredited investor, to acquire, at each Investor who has retained a price no less favorable than "purchaser representative" or has such knowledge and experience in financial and business matters that at which such Preemptive Shares are to be offered to others, he or she is capable of evaluating the merits and risks of this investment (each a "Qualified Investor") a portion of the Preemptive Shares, as provided in Section 3.5(b). (b) The Maker shall give the Holder prior written notice number or amount of any proposed issuance or sale described in Section 3.5(a), including the price at which such securities are proposed to be offered and the time period for the offering, and the Holder shall have thirty (30) days from the giving sold in any such transaction or series of such notice within which to elect to acquire that number of the Preemptive Shares related transactions equal to the product of the total percentage each such Qualified Investor holds of all shares of Common Stock then held by the Investors and the number of Preemptive Shares shares proposed to be issued and sold by the Company in any such transaction or series of related transactions, all for the same price and upon the same terms and conditions (including any requirement to purchase other securities) as the securities that are being offered to the Fund, its Affiliates and a fractionits Permitted Transferees to whom the Fund has Transferred Common Stock, determined as in such transaction or series of transactions. (b) Notwithstanding the time immediately prior foregoing, the provisions of this Section 4.6 shall not be applicable to the issuance of the Preemptive Shares, the numerator of which is equal to the sum of (i) the number of shares of Common Stock then outstanding as a result of (i) upon the conversion of this Note, and (ii) the number shares of shares one class of Common Stock into which this Note could be convertedshares of another class, and (ii) as a dividend on the denominator of which is equal to the sum of (x) the number of outstanding shares of Common Stock then outstandingStock, (yiii) in any transaction in respect of a Security that is available to all holders of such Security on a pro rata basis, (iv) in connection with grants of stock or options to employees or directors of the number of shares of Common Stock into which this Note could be convertedCompany or (v) in a Public Offering pursuant to a registration statement filed with, and (z) the number of shares of Common Stock issuable upon conversion or exercise of all outstanding options, warrants and other rights for the purchase of capital stock of the Company, and all outstanding shares of all series of preferred stock (such number of Preemptive Shares being referred to herein as the “Common Stock Preemptive Shares”). The Holder may acquire that portion of the Common Stock Preemptive Shares being offered equal to its percentage ownership of the outstanding Common Stock immediately preceding the issuance of the Preemptive Shares. If any transaction specified by the Maker in any such notice shall not be consummated within one hundred twenty (120) days from the date of such noticedeclared effective by, the Corporation shall again comply with the provisions of this Section 3.5 with respect to such transaction, Securities and the Holder shall again have preemptive rights hereunder with respect to the transaction, regardless of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities Exchange Commission pursuant to the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of the transaction proposed by the MakerSecurities Act. (c) The restrictions contained inCompany will cause to be given to the Qualified Investors a written notice setting forth the terms and conditions upon which the Qualified Investors may purchase such shares or other securities (the "Preemptive Notice"). After receiving a Preemptive Notice, the Qualified Investors must reply, in writing, within 15 days of the date of such Preemptive Notice that such persons agree to purchase the shares or other securities offered pursuant to this Section 4.6 on the date of sale to the Fund, its Affiliates or its Permitted Transferees to whom the Fund has Transferred Common Stock (the "Preemptive Reply"). If any Qualified Investor fails to make a Preemptive Reply in accordance with this Section 4.6, shares or other securities offered to such Qualified Investor in accordance with this Section 4.6 may thereafter, for a period not exceeding six months following the expiration of such 15-day period, be issued, sold or subjected to rights or options to the Fund and its Permitted Transferees to whom the Fund has Transferred Common Stock and to the Qualified Investors who have delivered a valid Preemptive Reply, on a pro rata basis, at a price not less than that at which they were offered to the Qualified Investors. Any such shares or other securities not so issued, sold or subjected to rights or options to the Fund and its Permitted Transferees to whom the Fund has Transferred Common Stock and to the Qualified Investors who have delivered a valid Preemptive Reply that are not purchased shall be reoffered to the Fund and its Permitted Transferees to whom the Fund has Transferred Common Stock and to the Qualified Investors who have delivered a valid Preemptive Reply, on a pro rata basis, and preemptive rights granted under, shall continue to be reoffered pursuant to the procedures set forth above until all of such shares have been purchased. (d) Notwithstanding the requirements of this Section 3.5 shall not apply to: (i4.6, the Company may make a Fund Issuance at any time without complying with the requirements of Section 4.6(a) shares of Common Stock issued upon conversion of this Note; (ii) shares of capital stock of the Maker issued in a public offering occurring after the date hereof that results in aggregate gross proceeds to the Maker of at least Fifty Million Dollars ($50,000,000); or (iii) shares of Common Stock issued upon the exercise or conversion of outstanding options, warrants or other Common Stock equivalents in existence on the Issuance Date. The rights granted to the Holder under this Section 3.5 may be waived with respect to any Preemptive Shares by a written waiver executed by the Holder.and

Preemptive Rights. (a) Except In the event of any offering of New Securities (as set forth in Section 3.5(c)defined below) by the Company, each Investor, for so long as the Notes, the Maker Warrants or any Note Shares or Warrant Shares remain outstanding, shall have the right to purchase a percentage of the New Securities being offered that is equal to the percentage of the outstanding Common Stock of the Company owned by such Investor on an as-converted basis (treating for this purpose as outstanding all shares of Common Stock issuable upon the full exercise of the Warrants and full conversion of the Notes then outstanding, including conversion of the maximum amount of Interest scheduled to accrue during the First Five Year Note Period (as defined in the Notes)); provided, however, that this right shall not apply to (i) equity compensation grants to employees, consultants, or directors pursuant to plans or other arrangements approved by the Board of Directors of the Company, (ii) securities issued upon the conversion or exercise of any convertible or exercisable securities that are outstanding as of the date hereof on the terms in effect on such date, (iii) the issuance of securities in connection with any underwritten public offering (excluding, for the avoidance of doubt, registered direct offerings); (iv) securities issued upon any split, dividend, combination or other similar event with respect to the capital stock of the Company; (v) securities subsequently issued upon conversion, exercise or exchange of those securities that have been issued in compliance with, or on issuance were exempt from the preemptive rights provided for in this Section 5.2, and (vi) shares of Common Stock or convertible securities issued or issuable in connection with mergers, acquisitions, strategic transactions, and debt financings approved by the Board of Directors of the Company, including the Investor Designee; provided, further, that in connection with any underwritten public offering, the Company will use reasonable best efforts to allow each Investor to purchase a sufficient amount of such offered securities so as to maintain as closely as possible such Investor’s proportionate interest in the Company on an as-converted basis as described above (disregarding any allocations of such offered securities that may be made by the underwriters to Affiliates of any Investor in the ordinary course investment business of such Affiliates). An Investor shall be deemed to have waived its rights under this Section 5.4 if such Investor shall have not delivered to the Company its written election to purchase such securities within ten (10) Business Days of receipt of the Company’s notice of such offering describing the material terms thereof (such ten (10) Business Day period, the “Offer Period”). If the Investor fail to exercise their purchase right pursuant to this Section 5.2, then the Company shall have the right, until the expiration of ninety (90) days commencing upon the expiration of the Offer Period, to issue such New Securities to one (1) or sell any more third parties on terms no more favorable to the purchasers thereof than the terms specified in the Company’s notice of such offering to the Investor, after which the terms of this Section 5.4 shall again apply to the Company’s offering of such New Securities. (b) For purposes of this Agreement, the term “New Securities” shall mean securities, contract rights, notes, obligations, options, warrants, or other rights that are directly or indirectly exercisable for, convertible into, or exchangeable for shares of Common Stock or other securities, capital or any rights or options to purchase Common Stock or other securities, or any debt or shares convertible into or exchangeable for Common Stock or other securities, whether now or hereafter authorized and whether unissued or in the treasury (collectively, “Preemptive Shares”), unless the Holder shall first have been given the right to acquire, at a price no less favorable than that at which such Preemptive Shares are to be offered to others, a portion of the Preemptive Shares, as provided in Section 3.5(b). (b) The Maker shall give the Holder prior written notice of any proposed issuance or sale described in Section 3.5(a), including the price at which such securities are to be offered and the time period for the offering, and the Holder shall have thirty (30) days from the giving of such notice within which to elect to acquire that number of the Preemptive Shares equal to the product of the total number of Preemptive Shares being offered and a fraction, determined as of the time immediately prior to the issuance of the Preemptive Shares, the numerator of which is equal to the sum of (i) the number of shares of Common Stock then outstanding as a result of the conversion of this Note, and (ii) the number of shares of Common Stock into which this Note could be converted, and the denominator of which is equal to the sum of (x) the number of shares of Common Stock then outstanding, (y) the number of shares of Common Stock into which this Note could be converted, and (z) the number of shares of Common Stock issuable upon conversion or exercise of all outstanding options, warrants and other rights for the purchase of capital voting stock of the Company, and all outstanding shares of all series of preferred stock (such number of Preemptive Shares being referred to herein as the “Common Stock Preemptive Shares”). The Holder may acquire that portion of the Common Stock Preemptive Shares being offered equal to its percentage ownership of the outstanding Common Stock immediately preceding the issuance of the Preemptive Shares. If any transaction specified by the Maker in any such notice shall not be consummated within one hundred twenty (120) days from the date of such notice, the Corporation shall again comply with the provisions of this Section 3.5 with respect to such transaction, and the Holder shall again have preemptive rights hereunder with respect to the transaction, regardless of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant to the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of the transaction proposed by the Maker. (c) The restrictions contained in, and preemptive rights granted under, this Section 3.5 shall not apply to: (i) shares of Common Stock issued upon conversion of this Note; (ii) shares of capital stock of the Maker issued in a public offering occurring after the date hereof that results in aggregate gross proceeds to the Maker of at least Fifty Million Dollars ($50,000,000); or (iii) shares of Common Stock issued upon the exercise or conversion of outstanding options, warrants or other Common Stock equivalents in existence on the Issuance Date. The rights granted to the Holder under this Section 3.5 may be waived with respect to any Preemptive Shares by a written waiver executed by the Holder.

Preemptive Rights. (a) Except (x) in a Public Offering, (y) as set forth a dividend on outstanding shares of Common Stock, or (z) pursuant to any incentive or bonus plan, agreement or arrangement approved by the Board of Directors for officers and key employees of the Company in Section 3.5(c)an amount not to exceed, together with any other such bonus plan, agreement or arrangement then in existence in the Maker shall not aggregate fifteen percent (15%) of the outstanding shares of Common Stock at that time, if the Company proposes to issue and sell any of its shares of Common Stock or sell any securities containing options or rights to acquire any shares of Common Stock or other securitiesany securities convertible into shares of Common Stock (collectively, such stock or securities are referred to as the "New Issuance" to any rights or options to purchase existing holder of the Company's Common Stock or other securitiesany of their respective Affiliates (as such term is defined in this Section 4, or any debt or shares convertible into or exchangeable for Common Stock or other securities, whether now or hereafter authorized and whether unissued or in then the treasury (collectively, “Preemptive Shares”), unless the Holder shall Company will first have been given the right offer to acquire, at a price no less favorable than that at which such Preemptive Shares are sell to be offered to others, each Investor a portion of each such New Issuance (after deducting the Preemptive Shares, as provided in Section 3.5(b). (b) The Maker shall give the Holder prior written notice of any proposed issuance or sale amounts described in Section 3.5(a4.6(b) below) equal to the quotient determined by dividing (1) the number of outstanding shares of Common Stock held by such Investor plus, in the case of Xxxxxxx, Common Stock which may be acquired upon exercise of the Warrant on the date of such offer, by (2) the aggregate number of outstanding shares of Common Stock immediately prior to such issuance. Each Investor shall be entitled to purchase stock or other securities in any New Issuance on the same terms and conditions (including price) as are offered to any of the other Shareholders; provided that if all Shareholders entitled to purchase stock or securities pursuant to this Section 4.6(a) are required by the Company to also purchase other securities of the Company as a condition to participating in such New Issuance, Shareholders exercising their rights pursuant to this Section 4.6 (a) shall also be required to purchase the same strip of securities (on the same terms and conditions including price) that all Shareholders are required to purchase in order to purchase any stock or securities in such New Issuance. In the event that an Investor does not elect to purchase his or its portion of such New Issuance as determined in this Section 4.6 (the "Declined Portion"), including the price at which Company shall give notice of such securities are failure to be offered and the time period for the offeringother Investors, and the Holder other Investors shall thereupon have the right and option to purchase in the aggregate all, but not less than all, of the Declined Portion and may give notice to the Company of such intention at any time not later than thirty (30) days from after the giving of date on which such notice within which is sent by the Company to such Investors. Each electing Investor's notice shall indicate the amount of the Declined Portion that such investor desires to purchase. If such Investors elect to acquire that purchase an aggregate number of the Preemptive Shares equal to the product shares in excess of the total number of Preemptive Shares being offered and a fraction, determined as of the time immediately prior to the issuance of the Preemptive SharesDeclined Portion, the numerator of which is equal Declined Portion shall be allocated among the Investors who desire to the sum of (i) purchase such shares in proportion to the number of shares of Common Stock then outstanding as a result (including, in the case of Xxxxxxx, Common Stock issuable upon exercise of the conversion Warrant) owned by each of this Notethem; provided that no such other Investor shall become bound to purchase any of such Declined Portion in excess of the number of such shares he, and she or it had elected to purchase. If the foregoing allocation procedure does not allocate all of the Declined Portion (ii) because one or more Investors would otherwise have been allocated more than the number of shares he, she or it elected to purchase), then the remaining part of the Declined Portion shall be allocated among the other Investors who desire to purchase such shares in proportion to the number of shares of Common Stock into which this Note could be converted(including, and in the denominator case of which is equal to the sum of (x) the number of shares of Common Stock then outstandingXxxxxxx, (y) the number of shares of Common Stock into which this Note could be converted, and (z) the number of shares of Common Stock issuable upon conversion or exercise of the Warrant) owned by each of them, and such allocation procedure shall continue until all outstanding options, warrants such shares shall have been allocated. Promptly upon determining the number of the shares which each purchasing Investor will purchase and other rights for the purchase of capital stock price therefor, the Company shall send notices thereof to each of the Company, and all outstanding shares of all series of preferred stock (such number of Preemptive Shares being referred to herein as the “Common Stock Preemptive Shares”). The Holder may acquire that portion of the Common Stock Preemptive Shares being offered equal to its percentage ownership of the outstanding Common Stock immediately preceding the issuance of the Preemptive Shares. If any transaction specified by the Maker in any such notice shall not be consummated within one hundred twenty (120) days from the date of such notice, the Corporation shall again comply with the provisions of this Section 3.5 with respect to such transaction, and the Holder shall again have preemptive rights hereunder with respect to the transaction, regardless of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant to the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of the transaction proposed by the Makerpurchasing Investors. (c) The restrictions contained in, and preemptive rights granted under, this Section 3.5 shall not apply to: (i) shares of Common Stock issued upon conversion of this Note; (ii) shares of capital stock of the Maker issued in a public offering occurring after the date hereof that results in aggregate gross proceeds to the Maker of at least Fifty Million Dollars ($50,000,000); or (iii) shares of Common Stock issued upon the exercise or conversion of outstanding options, warrants or other Common Stock equivalents in existence on the Issuance Date. The rights granted to the Holder under this Section 3.5 may be waived with respect to any Preemptive Shares by a written waiver executed by the Holder.

Preemptive Rights. In the event that the Company engages in an Initial Public Offering pursuant to which it issues Common Stock to the public from the IPO Equity Basket, (a) Except as set forth the USX Investors will have the right, upon irrevocable written notice to the Company not less than ten (10) Business Days after receipt of written notice from the Company of its intention to file the initial registration statement in Section 3.5(c)connection with such Initial Public Offering, to purchase in the Maker shall not issue or sell any aggregate in such Initial Public Offering (on the same terms and conditions applicable to public investors purchasing a like number of shares in such offering, and subject to the consummation of such offering) that number of shares of Common Stock or other securities, or any rights or options to purchase Common Stock or other securities, or any debt or shares convertible into or exchangeable for Common Stock or other securities, whether now or hereafter authorized and whether unissued or in the treasury (collectively, “Preemptive Shares”), unless the Holder shall first have been given the right to acquire, at a price no less favorable than that at which such Preemptive Shares are to be offered to others, a portion of the Preemptive Shares, as provided in Section 3.5(b). (b) The Maker shall give the Holder prior written notice of any proposed issuance or sale described in Section 3.5(a), including the price at which such securities are to be offered and the time period for the offering, and the Holder shall have thirty (30) days from the giving of such notice within which to elect to acquire that number of the Preemptive Shares equal to the product of (i) the total number of Preemptive Shares being offered and shares of Common Stock issued by the Company in such Initial Public Offering, multiplied by (ii) a fraction, determined as of the time immediately prior to the issuance of the Preemptive Shares, fraction the numerator of which is equal to the sum of (i) the number of shares of Common Stock then owned by the USX Investors in the aggregate on a fully diluted basis immediately prior to the Company's receipt of such written notice and the denominator of which is the total number of shares of Common Stock outstanding as on a result fully diluted basis immediately prior to the Company's receipt of the conversion of this Notesuch written notice, and (b) the Kobe Investors will have the right, upon irrevocable written notice to the Company not less than ten (10) Business Days after receipt of written notice from the Company of its intention to file the initial registration statement filed by the Company in connection with such Initial Public Offering, to purchase in the aggregate in such Initial Public Offering (on the same terms and conditions applicable to public investors purchasing a like number of shares in such offering, and subject to the consummation of such offering) that number of shares of Common Stock equal to the product of (i) the total number of shares of Common Stock issued by the Company in such Initial Public Offering, multiplied by (ii) a fraction the numerator of which is the number of shares of Common Stock into which this Note could be converted, owned by the Kobe Investors in the aggregate on a fully diluted basis immediately prior to the Company's receipt of such written notice and the denominator of which is equal the total number of shares of Common Stock outstanding on a fully diluted basis immediately prior to the sum Company's receipt of such written notice. Any shares of Common Stock to be purchased by the USX Investors or the Kobe Investors in an Initial Public Offering pursuant to their rights under this Section 3.11 will not count against the IPO Equity Basket (x) and the number of shares of Common Stock then outstanding, (y) that the Company may issue in such Initial Public Offering without the favorable vote of a USX Director designated by USX RTI Holdings and a Kobe Director designated by Kobe RTI Holdings therefore will be increased by such number of shares of Common Stock into which this Note could be converted, and (z) the number of shares of Common Stock issuable upon conversion or exercise of all outstanding options, warrants and other rights for the purchase of capital stock of the Company, and all outstanding shares of all series of preferred stock (such number of Preemptive Shares being referred to herein as the “Common Stock Preemptive Shares”Stock). The Holder may acquire that portion of the Common Stock Preemptive Shares being offered equal to its percentage ownership of the outstanding Common Stock immediately preceding the issuance of the Preemptive Shares. If any transaction specified by the Maker in any such notice shall not be consummated within one hundred twenty (120) days from the date of such notice, the Corporation shall again comply with the provisions of this Section 3.5 with respect to such transaction, and the Holder shall again have preemptive rights hereunder with respect to the transaction, regardless of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant to the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of the transaction proposed by the Maker. (c) The restrictions contained in, and preemptive rights granted under, this Section 3.5 shall not apply to: (i) shares of Common Stock issued upon conversion of this Note; (ii) shares of capital stock of the Maker issued in a public offering occurring after the date hereof that results in aggregate gross proceeds to the Maker of at least Fifty Million Dollars ($50,000,000); or (iii) shares of Common Stock issued upon the exercise or conversion of outstanding options, warrants or other Common Stock equivalents in existence on the Issuance Date. The rights granted to the Holder under this Section 3.5 may be waived with respect to any Preemptive Shares by a written waiver executed by the Holder.

Preemptive Rights. (a) Except If at any time after the issuance and sale of the Shares and for so long as set forth in Section 3.5(c)the Purchaser owns at least 10% of the outstanding Common Stock, the Maker shall not Company proposes to issue or sell any additional voting securities (excluding, however, up to 472,500 shares of Common Stock or other securitiesissuable pursuant to the Comair, or Inc. Employees Stock Option Plan - 1981), the Company shall promptly advise the Purchaser in writing of the terms on which such voting securities are to be issued. The Purchaser shall have the right, which may be exercised at any rights or options time within 15 days following receipt of such notice, to purchase Common Stock or other securitiesacquire on the same terms and conditions as such proposed issuance (or, or any debt or shares convertible into or exchangeable for Common Stock or other securities, whether now or hereafter authorized and whether unissued or in the treasury (collectively, “Preemptive Shares”), unless case of the Holder shall first have been given the right to acquireissuance of any voting securities for consideration other than cash, at a cash price no less favorable than equal to the fair market value of such non-cash consideration on the date that at which the Company first agrees to issue such Preemptive Shares are to be offered to others, a portion voting securities) the number of similar voting securities set forth hereinafter. The number of voting securities covered by each such right of the Preemptive SharesPurchaser shall be that number which, as provided in when added to all voting securities then owned by the Purchaser, would provide the Purchaser with the number of votes equal to the Purchaser's Current Percent of the total number of votes represented by all outstanding voting securities, after giving effect to the issuance of the voting securities giving rise to the operation of this Section 3.5(b)4.4 and the voting securities issuable to the Purchaser pursuant to this Section 4.4. (b) The Maker shall give Notwithstanding the Holder prior written notice of any proposed issuance or sale described in Section 3.5(a)foregoing, including the price at which such securities are to be offered and Company need not notify the time period for the offering, and the Holder shall have thirty (30) days from the giving of such notice within which to elect to acquire that number Purchaser of the Preemptive Shares equal to issuance of voting securities which in the product aggregate represent less than 1% of the total number of Preemptive Shares being offered and a fractionvotes represented by all then outstanding voting securities, determined as but shall notify the Purchaser within 15 days after the end of each fiscal quarter of the Company (or more frequently if requested by the Purchaser) as to the number of voting securities so issued during such quarter. The Purchaser's right to purchase additional voting securities under this Section 4.4 by reason of the issuance of such voting securities may, at the election of the Purchaser, be exercised at any time within 30 days following receipt of such notice or shall cumulate and may be carried forward and exercised by the Purchaser at the time of and together with the subsequent purchase of additional voting securities by the Purchaser pursuant to the next notice received by the Purchaser under Section 4.4(a). (c) For purposes of this Section 4.4, (i) the term "voting securities" shall mean any securities of the Company entitled to vote generally in the election of directors; (ii) the term "Purchaser's Current Percent" shall mean that percentage derived by dividing the total number of votes represented by all voting securities then held by the Purchaser by the total number of votes represented by all of the Company's outstanding voting securities immediately prior to the issuance of the Preemptive Shares, the numerator of which is equal voting securities giving rise to the sum of (i) the number of shares of Common Stock then outstanding as a result of the conversion of this Note, and (ii) the number of shares of Common Stock into which this Note could be converted, and the denominator of which is equal to the sum of (x) the number of shares of Common Stock then outstanding, (y) the number of shares of Common Stock into which this Note could be converted, and (z) the number of shares of Common Stock issuable upon conversion or exercise of all outstanding options, warrants and other rights for the purchase of capital stock of the Company, and all outstanding shares of all series of preferred stock (such number of Preemptive Shares being referred to herein as the “Common Stock Preemptive Shares”). The Holder may acquire that portion of the Common Stock Preemptive Shares being offered equal to its percentage ownership of the outstanding Common Stock immediately preceding the issuance of the Preemptive Shares. If any transaction specified by the Maker in any such notice shall not be consummated within one hundred twenty (120) days from the date of such notice, the Corporation shall again comply with the provisions operation of this Section 3.5 with respect to such transaction, 4.4; and the Holder shall again have preemptive rights hereunder with respect to the transaction, regardless of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant to the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of the transaction proposed by the Maker. (c) The restrictions contained in, and preemptive rights granted under, this Section 3.5 shall not apply to: (i) shares of Common Stock issued upon conversion of this Note; (ii) shares of capital stock of the Maker issued in a public offering occurring after the date hereof that results in aggregate gross proceeds to the Maker of at least Fifty Million Dollars ($50,000,000); or (iii) shares the term "fair market value" of Common Stock issued upon the exercise or conversion of outstanding options, warrants or other Common Stock equivalents in existence any non-cash consideration on the Issuance Datedate in question shall mean the fair market value of such consideration as mutually agreed by the Company and the Purchaser, or if such parties are unable to agree, as determined by an investment banking firm mutually agreeable to both parties. In the event that the parties are unable to agree on an investment banking firm, then each party shall name its own investment banking firm and such firms shall select a third investment banking firm to determine the "fair market value" of any non-cash consideration. The rights granted to the Holder under this Section 3.5 may fees and expenses of such third investment firm shall be waived with respect to any Preemptive Shares by a written waiver executed borne equally by the HolderCompany and the Purchaser.

Preemptive Rights. (a) Except If prior to a Qualifying IPO, any Purchaser (including its Affiliates) beneficially owns 50% or more of the shares of Series A Common Stock issued to such Purchaser on the date hereof pursuant to the Purchase Agreement, then in the event the Issuer proposes to sell Capital Stock to any Person after the date hereof (other than (i) stock options, and the shares of Capital Stock issuable pursuant to the exercise of such stock options, granted to employees, management and directors after the date hereof; PROVIDED, that the aggregate number of shares issued pursuant to such additional stock options shall not, in any fiscal year of the Issuer, exceed the sum of (1) 0.75% of the total number of shares of Capital Stock outstanding on the first day of such fiscal year, plus (2) the number of shares which would have been issuable in such fiscal year pursuant to stock options outstanding as set forth of the date hereof which have theretofore been cancelled (ii) in Section 3.5(cconnection with (A) acquisitions of assets or businesses, (B) joint ventures, (C) commercial relationships or (D) debt refinancing acquisitions in an amount not to exceed 5% of the fully diluted Capital Stock, in each case with Persons other than Affiliates; PROVIDED that such transactions are approved by the Board of Directors, or (iii) pursuant to a Qualifying IPO), the Maker Issuer shall not issue offer to sell to each such Purchaser and/or their Affiliates, as the case may be, a portion of such Capital Stock equal to the percentage of the Issuer's underlying common equity (calculated on a fully diluted basis) held by such Purchaser or sell any shares of Common Stock Affiliate thereof. Each such Pur- chaser or other securities, or any rights or options Affiliate thereof shall be entitled to purchase Common such Capital Stock or other securities, or any debt or shares convertible into or exchangeable for Common at the most favorable price and on the most favorable terms as such Capital Stock or other securities, whether now or hereafter authorized and whether unissued or in the treasury (collectively, “Preemptive Shares”), unless the Holder shall first have been given the right to acquire, at a price no less favorable than that at which such Preemptive Shares are is to be offered to others, a portion any other Persons; PROVIDED that if all Persons entitled to purchase or receive such Capital Stock are required to also purchase other securities of the Preemptive SharesIssuer, the Purchasers or their Affiliates, as provided in Section 3.5(b)the case may be, shall also be required to purchase the same securities (on the same terms and conditions) that such other Persons are required to purchase. (b) The Maker shall give the Holder prior written notice of any proposed issuance or sale described in In order to exercise its purchase rights under Section 3.5(a), including each Purchaser or Affiliate thereof, as the case may be, must within 15 Business Days of receipt of written notice from the Issuer describing in reasonable detail the Capital Stock and any other securities being offered, the purchase price at which such securities are to be offered thereof, the payment terms and the time period for Purchaser's or Affiliate's, as the offeringcase may be, and percentage allotment, deliver a written notice to the Holder Issuer describing its election hereunder. Each Purchaser or Affiliate thereof, as the case may be, shall have thirty (30) days from the giving option to purchase less than all of such notice within which to elect to acquire that number of the Preemptive Shares equal to the product of the total number of Preemptive Shares being offered and a fraction, determined as of the time immediately prior to the issuance of the Preemptive Shares, the numerator of which is equal to the sum of (i) the number of shares of Common Stock then outstanding as a result of the conversion of this Note, and (ii) the number of shares of Common Stock into which this Note could be converted, and the denominator of which is equal to the sum of (x) the number of shares of Common Stock then outstanding, (y) the number of shares of Common Stock into which this Note could be converted, and (z) the number of shares of Common Stock issuable upon conversion or exercise of all outstanding options, warrants and other rights for the purchase of capital stock of the Company, and all outstanding shares of all series of preferred stock (such number of Preemptive Shares being referred to herein as the “Common Stock Preemptive Shares”). The Holder may acquire that portion of the Common Stock Preemptive Shares being offered equal to its percentage ownership of the outstanding Common Stock immediately preceding the issuance of the Preemptive Shares. If any transaction specified by the Maker in any such notice shall not be consummated within one hundred twenty (120) days from the date of such notice, the Corporation shall again comply with the provisions of this Section 3.5 with respect to such transaction, and the Holder shall again have preemptive rights hereunder with respect to the transaction, regardless of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant to the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of the transaction proposed by the Makerallotment. (c) The restrictions contained in, and preemptive rights granted under, this Section 3.5 shall not apply to: (i) shares of Common Stock issued upon conversion of this Note; (ii) shares of capital stock Upon expiration of the Maker issued offering periods described in a public offering occurring after Section 3.5(b), the date hereof that results in aggregate gross proceeds Issuer shall be entitled to sell such Capital Stock and other securities which the Purchasers or their Affiliates have elected not to purchase during the 90 days following such expiration on terms and conditions no more favorable to the Maker of at least Fifty Million Dollars ($50,000,000); or (iii) shares of Common Stock issued upon the exercise or conversion of outstanding options, warrants or other Common Stock equivalents in existence on the Issuance Date. The rights granted purchasers thereof than those offered to the Holder under this Section 3.5 may be waived with respect to any Preemptive Shares by a written waiver executed Purchasers and their Affiliates. Any Capital Stock offered or sold by the HolderIssuer after such 90-day period must be reoffered to the Purchasers and/or their Affiliates, as the case may be, provided the Purchasers and/or their Affiliates continue to meet the requirements set forth in Section 3.5(a).

Preemptive Rights. (a) Except From the Closing Date through the date on which shares of Series A Preferred Stock first become convertible into shares of Class A Common Stock pursuant to the Certificate of Designations, and thereafter for so long as set forth in Section 3.5(c)the Purchasers collectively beneficially own (assuming conversion of all shares of Series A Preferred Stock into Class A Common Stock, regardless of whether such shares are actually then convertible) not less than 5% of the Maker shall not issue or sell any total number of shares of Common Stock or other securitiesoutstanding from time to time, or any rights or options in the event the Company proposes to purchase issue Common Stock of any kind (including any warrants, options or other securities, securities or any debt or shares units comprising securities convertible into or exchangeable for Common Stock or rights to acquire the same) of the Company, other than (1) pursuant to a bona fide public offering to or through a nationally recognized investment banking firm in which, to the Company's knowledge, no single Person or its Affiliates (excluding members of the underwriting syndicate, if an underwritten offering) purchases 10% or more of the shares sold in such offering, (2) pursuant to an employee or non-management director stock option plan, stock bonus plan, stock purchase plan or other management equity program or plan, (3) pursuant to any merger, share exchange or acquisition pursuant to which shares of Series A Common Stock are exchanged for, or issued upon cancellation or conversion of, equity securities of an entity engaged primarily in, or to acquire assets primarily for use in, the motion picture exhibition business, or (4) securities issuable upon exercise of previously issued warrants, options or other rights to acquire Common Stock or upon conversion of previously issued securities convertible into Common Stock, then the Company shall: (i) deliver to the Purchasers written notice setting forth in reasonable detail (1) the terms and provisions of the securities proposed to be issued (the "Proposed Securities"); (2) the price and other terms of the proposed sale of such securities, whether now or hereafter authorized ; (3) the amount of such securities proposed to be issued; and whether unissued or (4) such other information as the Purchaser may reasonably request in order to evaluate the proposed issuance; and (ii) offer to issue to the Purchasers in the treasury (collectively, “Preemptive Shares”), unless the Holder shall first have been given the right to acquire, at a price no less favorable than that at which such Preemptive Shares are to be offered to others, aggregate a portion of the Preemptive Shares, as provided in Section 3.5(b). (b) The Maker shall give the Holder prior written notice of any proposed issuance or sale described in Section 3.5(a), including the price at which such securities are to be offered and the time period for the offering, and the Holder shall have thirty (30) days from the giving of such notice within which to elect to acquire that number of the Preemptive Shares Proposed Securities equal to the product of the total number of Preemptive Shares being offered and a fraction, percentage determined as of the time immediately prior to the issuance of the Preemptive Shares, the numerator of which is equal to the sum of (i) the number of shares of Common Stock then outstanding as a result of the conversion of this Note, and (ii) the number of shares of Common Stock into which this Note could be converted, and the denominator of which is equal to the sum of by dividing (x) the number of shares of Common Stock beneficially owned by the Purchasers (assuming conversion of all shares of Series A Preferred Stock into Class A Common Stock, regardless of whether such shares are actually then outstandingconvertible), by (y) the total number of shares of Common Stock into which this Note could be converted, and (z) the number of shares of Common Stock issuable upon conversion or then outstanding. The Purchasers must exercise of all outstanding options, warrants and other rights for the purchase rights hereunder within ten (10) Business Days after receipt of capital stock such notice from the Company. (b) Upon the expiration of the offering period described above, or if the Purchasers shall default in paying for or purchasing the Proposed Securities on the terms offered by the Company, the Company shall thereafter be free to sell such Proposed Securities that the Purchaser has not elected to purchase during the ninety (90) days following such expiration on terms and all outstanding shares of all series of preferred stock (such number of Preemptive Shares being referred conditions no more favorable to herein as the “Common Stock Preemptive Shares”)purchasers thereof than those offered to the Purchasers. The Holder may acquire that portion of the Common Stock Preemptive Shares being Any Proposed Securities offered equal to its percentage ownership of the outstanding Common Stock immediately preceding the issuance of the Preemptive Shares. If any transaction specified or sold by the Maker in any Company after such notice shall not 90 day period must be consummated within one hundred twenty (120) days from reoffered to the date of such notice, the Corporation shall again comply with the provisions of Purchasers pursuant to this Section 3.5 with respect to such transaction, and the Holder shall again have preemptive rights hereunder with respect to the transaction, regardless of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant to the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of the transaction proposed by the Maker9.9. (c) The restrictions contained in, and election by the Purchasers not to exercise preemptive rights granted under, this Section 3.5 shall not apply to: (i) shares of Common Stock issued upon conversion of this Note; (ii) shares of capital stock of the Maker issued in a public offering occurring after the date hereof that results in aggregate gross proceeds to the Maker of at least Fifty Million Dollars ($50,000,000); or (iii) shares of Common Stock issued upon the exercise or conversion of outstanding options, warrants or other Common Stock equivalents in existence on the Issuance Date. The rights granted to the Holder under this Section 3.5 may be waived with 9.9 in any one instance shall not affect its right (other than in respect of a reduction in its percentage holdings) as to any Preemptive Shares by a written waiver executed subsequent proposed issuance. Any sale of such securities by the HolderCompany without first giving the Purchasers the rights described in this Section 9.9 shall be void and of no force and effect, and the Company shall not register such sale or issuance on the books and records of the Company.

Preemptive Rights. Subject to the terms and conditions specified in this Section 3.18, each time the Company proposes to offer any shares of, or securities convertible into, or exchangeable or exercisable for any shares of, its capital stock (whether newly issued or treasury stock), the Company shall make an offering of such securities to each Investor in accordance with the following provisions: (a) Except as set forth The Company shall deliver a notice ("Notice") to each Investor stating (i) its bona fide intention to offer such securities, (ii) the number of such securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such securities. (b) By written notification received by the Company, within twenty (20) calendar days after giving of the Notice, each Investor (including its affiliates) may elect to purchase or obtain, at the price and on the terms specified in Section 3.5(c)the Notice, up to that portion of such securities which equals the Maker shall not issue or sell any proportion that the number of shares of Common Stock or other securitiesissued and held, or any issuable upon conversion of the Shares then held, by such Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion of all convertible securities and the exercise of all outstanding options, warrants or rights or options to purchase Common Stock or other securities, or any debt or shares securities convertible into or exchangeable exercisable for shares of Common Stock or other securities, whether now or hereafter authorized and whether unissued or in the treasury (collectively, “Preemptive Shares”), unless the Holder shall first have been given the right to acquire, at a price no less favorable than that at which such Preemptive Shares are to be offered to others, a portion of the Preemptive Shares, as provided in Section 3.5(b). (b) The Maker shall give the Holder prior written notice of any proposed issuance or sale described in Section 3.5(a), including the price at which such securities are to be offered and the time period for the offering, and the Holder shall have thirty (30) days from the giving of such notice within which to elect to acquire that number of the Preemptive Shares equal to the product of the total number of Preemptive Shares being offered and a fraction, determined exercisable as of the time immediately prior date of such Notice) ("Pro Rata Share"). The Company shall promptly, in writing, inform each Investor and holder of Units (a "Unit Holder") that purchases all of such securities available to it (a "Fully-Exercising Investor") of any other Investor's or Unit Holder's failure to do likewise. During the issuance ten-day period following delivery of such information, each Fully-Exercising Investor shall be entitled to purchase that portion of such securities for which Investors or Unit Holders were entitled to subscribe but which were not subscribed by the Preemptive Shares, the numerator of Investors or Unit Holders which is equal to the sum proportion that the number of (i) shares of Common Stock issued and held, or issuable upon conversion of the Shares then held, by such Fully-Exercising Investor bears to the total number of shares of Common Stock then outstanding as a result of the (assuming full conversion of this Noteall convertible securities (including the Warrants) and the exercise of all options, and (ii) the number of warrants or rights to purchase Common Stock or other securities convertible into or exercisable for shares of Common Stock into which this Note could be converted, Stock) then held by all Fully-Exercising Investors and the denominator of which is equal to the sum of Unit Holders (x) the number of shares of Common Stock then outstanding, (y) the number of shares of Common Stock into which this Note could be converted, and (z) the number of shares of Common Stock issuable upon conversion or exercise of all outstanding options, warrants and other rights for the purchase of capital stock of the Company, and all outstanding shares of all series of preferred stock (such number of Preemptive Shares being referred to herein as the “Common Stock Preemptive Shares”"Proportional Share"). The Holder may acquire that portion of the Common Stock Preemptive Shares being offered equal to its percentage ownership of the outstanding Common Stock immediately preceding the issuance of the Preemptive Shares. If any transaction specified by the Maker in Investor or Unit Holder fails to purchase its Pro Rata Share or Proportional Share, any such notice shall not be consummated within one hundred twenty (120) days from the date affiliate of such noticeInvestor may purchase the shares available to, the Corporation shall again comply with the provisions of this Section 3.5 with respect to but not purchased by, such transaction, and the Holder shall again have preemptive rights hereunder with respect to the transaction, regardless of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant to the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of the transaction proposed by the MakerInvestor. (c) The restrictions contained inIf all securities referred to in the Notice which Investors are entitled to obtain pursuant to Section 3.18(b) are not elected to be obtained as provided in Section 3.18(b) hereof, the Company may, during the sixty (60) day period following the expiration of the last notice provision provided in Section 3.18(b) hereof, offer the remaining unsubscribed portion of such securities to any person or persons at a price not less than, and upon terms no more favorable to the offeree than those specified in the Notice. If the Company does not enter into an agreement for the sale of such securities within such period, or if such agreement is not consummated within sixty (60) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such securities shall not be offered unless first re-offered to the Investors in accordance herewith. (d) The preemptive rights granted under, right in this Section 3.5 3.18 shall not apply be applicable to: (i) shares Shares of Common Stock issuable or issued upon conversion to employees, advisors, consultants or outside directors of this Notethe Company directly or pursuant to a stock option plan or restricted stock plan approved by the Board of Directors of the Company, the total number of such shares not to exceed 130,200 (appropriately adjusted for stock splits, stock dividends or similar recapitalizations); (ii) Common Stock, or securities convertible into, or exchangeable or exercisable for shares of capital stock Common Stock, issued or issuable in connection with bona fide research, licensing or corporate partnering relationships, in connection with equipment lease financing, or in connection with non-convertible debt financing with institutional lenders, in each case approved by a majority of the Maker issued in a public offering occurring after Board of Directors of the date hereof Company including both of the Series A Board Members; provided, that results in aggregate gross proceeds to the Maker such issuances of at least Fifty Million Dollars ($50,000,000); orCommon Stock are for other than primarily equity financing purposes; (iii) shares of Common Stock issued or issuable upon the exercise or conversion of outstanding options, warrants the Shares or other the Warrants issued pursuant to the Unit Purchase Agreement; (iv) Common Stock equivalents issued or issuable in existence on connection with a merger or consolidation as a result of which the Issuance Date. The rights granted holders of the Company's outstanding securities immediately prior to the Holder under this Section 3.5 may be waived with respect to any Preemptive Shares by a written waiver executed by the Holder.consummation of such transaction hold voting securities in excess of fifty percent

Preemptive Rights. (a) Except as set forth for issuances of Common Stock (i) to the Company's employees, officers, directors and consultants pursuant to the Company's 1997 Equity Incentive Plan (in Section 3.5(can aggregate amount not to exceed 2,571,429 shares, such number of shares to be adjusted appropriately for subsequent stock splits, stock combinations, stock dividends and like events), (ii) upon exercise of Warrants, (iii) upon the Maker shall exercise of warrants (in an aggregate amount not issue to exceed 100,000 shares, such number of shares to be adjusted appropriately for subsequent stock splits, stock combinations, stock dividends and like events), issued in connection with the leasing of equipment and line of credit used in the ordinary course of the Company's business, (iv) in connection with the acquisition of another company or sell business as permitted under Section 2.3(h) above or (v) pursuant to a Qualified IPO (as defined below), if the Company authorizes the issuance or sale of any shares of Common Stock or any securities containing options or rights to acquire any shares of Common Stock (other securitiesthan as a dividend on the outstanding Common Stock), or any rights other equity securities of the Company or options to purchase any securities exchangeable for or convertible into Common Stock or such other equity securities, or any debt or shares convertible into or exchangeable for Common Stock or other securities, whether now or hereafter authorized and whether unissued or in the treasury (collectively, “Preemptive Shares”), unless the Holder Company shall first have been given the right offer to acquire, at a price no less favorable than that at which such Preemptive Shares are sell to be offered to others, each holder of Registrable Securities a portion of the Preemptive Shares, as provided in Section 3.5(b). (b) The Maker shall give the Holder prior written notice of any proposed issuance such stock or sale described in Section 3.5(a), including the price at which such securities are to be offered and the time period for the offering, and the Holder shall have thirty (30) days from the giving of such notice within which to elect to acquire that number of the Preemptive Shares equal to the product of the total number of Preemptive Shares being offered and a fraction, quotient determined as of the time immediately prior to the issuance of the Preemptive Shares, the numerator of which is equal to the sum of by dividing (i1) the number of shares of Registrable Securities and other Common Stock then outstanding as a result of the conversion of this Note, and held by such holder by (ii2) the sum of (x)the total number of shares of Common Stock into which this Note could be converted, Registrable Securities and the denominator of which is equal to the sum of (x) the number of shares of Common Stock then outstanding, (y) the number of shares of Common Stock into outstanding which this Note could be converted, are not Registrable Securities and (z) the number of shares of Common Stock issuable upon conversion or the exercise of outstanding Warrants and options granted in accordance with the Company's 1997 Equity Incentive Plan as currently in effect. Each holder of Registrable Securities shall be entitled to purchase such stock or securities at the same price and on the same terms as such stock or securities are to be offered or sold to any other Persons. The purchase price for all outstanding optionsstock and securities offered to the holders of the Registrable Securities shall be payable in cash or, warrants and other to the extent otherwise provided by the terms of any such transaction, notes issued by such holders. (b) In order to exercise its purchase rights for the purchase hereunder, a holder of capital stock Registrable Securities must within twenty (20) 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, all other terms and conditions for the Company's proposed issuance, and such holder's proportionate allotment of such stock or securities, deliver a written notice to the Company containing its election hereunder. If all outstanding shares of all series of preferred stock (such number of Preemptive Shares being referred to herein as the “Common Stock Preemptive Shares”). The Holder may acquire that portion of the Common Stock Preemptive Shares being stock and securities offered equal to its percentage ownership the holders of Registrable Securities is not fully subscribed by such holders, the outstanding Common Stock immediately preceding the issuance of the Preemptive Shares. If any transaction specified remaining stock and securities shall be reoffered by the Maker in any such notice shall not be consummated within one hundred twenty (120) days from the date of such notice, the Corporation shall again comply with the provisions of this Section 3.5 with respect to such transaction, and the Holder shall again have preemptive rights hereunder with respect Company to the transaction, regardless of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant to the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of the transaction proposed by the Maker. (c) The restrictions contained in, and preemptive rights granted under, this Section 3.5 shall not apply to: (i) shares of Common Stock issued upon conversion of this Note; (ii) shares of capital stock of the Maker issued in a public offering occurring after the date hereof that results in aggregate gross proceeds to the Maker of at least Fifty Million Dollars ($50,000,000); or (iii) shares of Common Stock issued holders purchasing their full allotment upon the terms set forth in this paragraph, except that such holders must exercise or conversion of outstanding options, warrants or other Common Stock equivalents in existence on the Issuance Date. The rights granted to the Holder under this Section 3.5 may be waived with respect to any Preemptive Shares by a written waiver executed by the Holder.their purchase rights

Preemptive Rights. (a) Except The Company hereby grants to each Investor for so long as set forth in Section 3.5(c)he or it shall own, beneficially or of record, any Capital Stock, the Maker shall not issue preemptive right to purchase from the Company his pro rata portion of an offering of any equity security or sell any shares security which is or may become convertible or exchangeable into an equity security of Common Stock the Company whether now authorized or other securitiesnot, and rights, options or warrants to purchase equity securities or capital stock and securities of any type whatsoever that are, or any rights or options to purchase Common Stock or other securities, or any debt or shares may become convertible into or exchangeable for equity securities or Capital Stock, when issued or sold by the Company, on the best terms and conditions as said securities are offered to other purchasers thereof; provided, however, that there will be no such preemptive right in the case of (i) shares issued to employees, officers, directors, consultants or other persons performing services for the Company pursuant to any stock offering, plan or arrangement approved by the Board of Directors of the Company and a majority-in-interest of the Investors, (ii) the re-issuance to employees of shares of the Company's stock which have been acquired from employees pursuant to restricted stock arrangements, (iii) shares issued under the Purchase Agreement or pursuant to the exercise of outstanding options or warrants, or the conversion of outstanding convertible securities or the Preferred Shares, (iv) shares issued in the acquisition of another company, (v) equity securities issued as a stock dividend to holders of Common Stock or other securitiesPreferred Stock or upon any stock split, whether now subdivision or hereafter authorized and whether unissued combination of shares of Capital Stock, (vi) securities issued to the public pursuant to a registration statement filed under the Act, or in the treasury (collectively, “Preemptive Shares”), unless the Holder shall first have been given the right vii) up to acquire, at a price no less favorable than that at which such Preemptive Shares are an aggregate of 444,444 shares of Common Stock to be offered to others, a portion trade creditors of the Preemptive SharesCompany to settle up to $200,000 of indebtedness of the Company existing as of March 31, as 1998 hereof provided in Section 3.5(b). (b) such issuances are at $.45 per share or more. The Maker Company shall give the Holder prior written notice of any proposed issuance or sale described in Section 3.5(a), including the price at which such securities are to be offered and the time period for the offering, and the Holder shall have Investors thirty (30) days from written notice (the giving "Notice Period") of such notice within any proposed security issuance which would give rise to elect preemptive rights as contemplated in this Section 6. Each Investor wishing to acquire purchase securities shall have the right to purchase that number portion of the Preemptive Shares equal to the product of the total number of Preemptive Shares being offered and securities which is determined by a fraction, determined as of the time immediately prior to the issuance of the Preemptive Shares, fraction the numerator of which is equal to the sum of (i) the number of shares of Common Stock then outstanding as a result held by such Investor and the denominator of the conversion of this Note, and (ii) which is the number of shares of Common Stock into which this Note could be converted, held by all Investors who wish to purchase a portion of the securities (assuming for purposes of the calculation the exercise and conversion of all securities of the denominator company held by the Investors). Each participating Investor shall have a further pro rata right (a "right of which is equal over-allotment") to purchase the securities refused by any Investor who declines to fully exercise its preemptive right. Each Investor desiring to exercise its preemptive right must notify the Company in writing prior to the sum close of business on the last day of Notice Period, stating (xi) the number of shares of Common Stock then outstandingits intent to purchase, (yii) the number whether or not it intends to exercise its right of shares of Common Stock into which this Note could be convertedover-allotment, and (ziii) the number maximum amount of shares of Common Stock issuable securities it is willing to purchase. The foregoing preemptive rights shall terminate immediately upon conversion or exercise of all outstanding options, warrants and other rights for the purchase of capital stock completion of the Company's Initial Public Offering. In the event any Investor fails to exercise in full its preemptive right (after giving effect to the over-allotment provisions hereof), and all outstanding shares of all series of preferred stock the Company shall have ninety (such number of Preemptive Shares being referred to herein as the “Common Stock Preemptive Shares”). The Holder may acquire that portion of the Common Stock Preemptive Shares being offered equal to its percentage ownership of the outstanding Common Stock immediately preceding the issuance of the Preemptive Shares. If any transaction specified by the Maker in any such notice shall not be consummated within one hundred twenty (12090) days from thereafter to sell the date of such notice, the Corporation shall again comply with the provisions of this Section 3.5 securities with respect to such transactionwhich the Investor's option was not exercised, at a price and the Holder shall again have preemptive rights hereunder with respect upon terms no more favorable to the transactionpurchasers thereof than specified in the Company's notice. To the extent the Company does not sell all the securities so offered within said ninety (90) day period, regardless of whether the Company shall not thereafter issue or sell any such stockholder had previously exercised or failed to exercise securities without first offering such rights. Any purchase of securities pursuant to the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of Investors in the transaction proposed by the Makermanner provided herein. (c) The restrictions contained in, and preemptive rights granted under, this Section 3.5 shall not apply to: (i) shares of Common Stock issued upon conversion of this Note; (ii) shares of capital stock of the Maker issued in a public offering occurring after the date hereof that results in aggregate gross proceeds to the Maker of at least Fifty Million Dollars ($50,000,000); or (iii) shares of Common Stock issued upon the exercise or conversion of outstanding options, warrants or other Common Stock equivalents in existence on the Issuance Date. The rights granted to the Holder under this Section 3.5 may be waived with respect to any Preemptive Shares by a written waiver executed by the Holder.

Preemptive Rights. 9.1 Until the first to occur of (a) Except as set forth in Section 3.5(c)the Investor no longer owning the Minimum Stock Amount or (b) the consummation of a Qualifying Public offering, if at any time after the date of this Agreement, the Maker shall not Company issues or proposes to issue or sell any equity securities, other than (a) the Securities whose issuance is contemplated by this Agreement; (b) up to an aggregate of 37,024 shares of Common Stock or other securitiesissuable upon exercise of options granted under the ESOP if the Original ESOP Amount is in effect, or any rights or options down to purchase Common Stock or other securities, or any debt or shares convertible into or exchangeable for Common Stock or other securities, whether now or hereafter authorized and whether unissued or in the treasury (collectively, “Preemptive Shares”), unless the Holder shall first have been given the right to acquire, at a price no less favorable than that at which such Preemptive Shares are to be offered to others, a portion an aggregate of the Preemptive Shares, as provided in Section 3.5(b). (b) The Maker shall give the Holder prior written notice of any proposed issuance or sale described in Section 3.5(a), including the price at which such securities are to be offered and the time period for the offering, and the Holder shall have thirty (30) days from the giving of such notice within which to elect to acquire that number of the Preemptive Shares equal to the product of the total number of Preemptive Shares being offered and a fraction, determined as of the time immediately prior to the issuance of the Preemptive Shares, the numerator of which is equal to the sum of (i) the number of 30,839 shares of Common Stock then outstanding as a result issuable upon exercise of options granted under the conversion ESOP if the Decreased ESOP Amount is in effect; (c) up to an aggregate of this Note, and (ii) the number of 6,185 shares of Common Stock into issuable upon exercise of the Xxxxxx options; and shares of Common Stock issued upon the exercise, exchange or conversion of any security as to which the Investor had an opportunity to exercise its rights under this Note could Section 9 (an "Issuance"), the Investor shall have the right to purchase up to its Proportionate Percentage (as defined below) of the type of securities issued or proposed to be converted, issued in such Issuance on the same price and terms as the denominator of which is Issuance (to the extent such price and terms are cash prices and terms). The Investor's "Proportionate Percentage" shall be that percentage equal to the sum of ratio which (x) the number of shares of outstanding Common Stock then outstanding, owned by the Investor bears to (y) the aggregate number of shares of outstanding Common Stock into which this Note could be converted, then owned by all shareholders of the Company. For purposes solely of the computation required under clauses (x) and (zy) above, the number Investor holding Preferred Stock shall be treated as having converted all of its Preferred Stock into shares of Common Stock issuable upon conversion or exercise at the rate at which such Preferred Stock is convertible at the time of all outstanding options, warrants and other rights for delivery by the purchase of capital stock Company of the CompanyOption Notice (as defined below), and assuming that all outstanding shares of all series of preferred stock (such number of Preemptive Shares being referred to herein as the “Common Stock Preemptive Shares”). The Holder may acquire that portion of the Common Stock Preemptive Shares being offered equal to its percentage ownership of the outstanding Common Stock immediately preceding the issuance of the Preemptive Shares. If any transaction specified by the Maker in any such notice shall not be consummated within one hundred twenty (120) days from the date of such notice, the Corporation shall again comply with the provisions of this Section 3.5 with respect to such transaction, and the Holder shall again have preemptive rights hereunder targets with respect to the transaction, regardless of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant to the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of the transaction proposed by the Maker. (c) The restrictions contained in, and preemptive rights granted under, this Section 3.5 shall not apply to: (i) shares of Common Stock issued upon conversion of this Note; (ii) shares of capital stock of the Maker issued in a public offering occurring after the date hereof that results in aggregate gross proceeds to the Maker of at least Fifty Million Dollars ($50,000,000); or (iii) shares of Common Stock issued upon the exercise or conversion of outstanding options, warrants or other Common Stock equivalents in existence on the Issuance Date. The rights granted to the Holder under this Section 3.5 may be waived with respect to any Preemptive Shares by a written waiver executed by the Holder.Company's "Performance Test

Preemptive Rights. So long as (ai) Except the Buyer has made payments in a timely manner as set forth in Section 3.5(c2.4 of the Agreement (as amended) and (ii) the Buyer, or the members of the Buyer as of September 9, 2009 (including any member of the Buyer to whom rights or securities purchased under the Agreement were assigned, still beneficially own at least 66% of the 550,055 shares of the Company’s Series B Preferred Stock purchased pursuant to the Agreement (as amended), the Maker Buyer shall not issue have each of the separate preemptive rights described in subsections (a)-(e) below: (a) Except with respect to an Exempt Issuance, for a period of five years commencing on the date of this Amendment, if the Company issues shares of common stock, options, warrants common stock equivalents or sell any other securities that are exercisable or exchangeable for, or convertible into, common stock, the Buyer shall have the right to purchase from the Company a number of shares of Common Stock or other securities, or any rights or options equal to purchase Common Stock or other securities, or any debt or shares convertible into or exchangeable the amount necessary for Common Stock or other securities, whether now or hereafter authorized and whether unissued or the Buyer to maintain its percentage interest in the treasury (collectively, “Preemptive Shares”), unless the Holder shall first have been given the right to acquire, Company on a post-issuance and fully-diluted basis at a price no less favorable than that at which such Preemptive Shares are equal to be offered to others, a portion the lesser of eight cents ($0.08) per share or 50% of the Preemptive Sharesthird party’s purchase price or exercise or conversion price to acquire the third party’s shares, as applicable (provided in that the Buyer’s minimum purchase price pursuant to this Section 3.5(b2.7(a) shall be five cents ($0.05)) (such price being the “Pre-emptive Purchase Price”). (b) The Maker shall give Except with respect to an Exempt Issuance, if the Holder prior written notice Company issues shares of any proposed issuance Common Stock or sale described options, warrants, common stock equivalents or other securities that are exercisable or exchangeable for, or convertible into, Common Stock to a third party in Section 3.5(a)exchange for services, including assets or other property, then for a period of one (1) year following the price at which date that such securities are issued to be offered and such third party, the time period for the offering, and the Holder Buyer shall have thirty (30) days the right to purchase an equivalent number of securities from the giving of such notice within which to elect to acquire that number of the Preemptive Shares Company at a price equal to the product Pre-emptive Purchase Price. (c) Except with respect to an Exempt Issuance, for a period of three (3) years from the date of this Amendment, for each share of Common Stock that is acquired by a third party by way of any of the total mechanisms described in subsections (i)-(iv) of this Section 2.7(c), Rock Island shall be entitled to purchase from the Company a share of Common Stock at a price equal to the Pre-emptive Purchase Price: (i) any options or warrants of the Company existing on the date of this Amendment are exercised; (ii) any bridge loans of the Company are converted into shares of Common Stock, (iii) any notes of the Company converted into shares of Common Stock, or (iv) any shares of the Series A Preferred Stock of the Company are converted. (d) Except with respect to an Exempt Issuance, after September 9, 2009, for a period of five years commencing on the date of this Amendment, if the Company issues shares of Common Stock, options, warrants, common stock equivalents or any other securities that are exercisable or exchangeable for, or convertible into, Common Stock, the Buyer shall (i) in the case of warrants, options or other securities that are exercisable or exchangeable for, or convertible into, Common Stock, be entitled to immediately receive warrants to purchase such number of Preemptive Shares being offered and a fraction, determined as shares of the time immediately prior to the issuance of the Preemptive Shares, the numerator of which Common Stock that is equal to the sum of (i) the number of shares of Common Stock then outstanding as a result underlying the options, warrants or other securities for no additional consideration and with an exercise price of the conversion of this Note$0.03 per share, and (ii) in the case of the issuance of shares of Common Stock, the Buyer shall immediately have the right to purchase an equal number of shares at a purchase price of $0.03 per share. (e) For a period of five years commencing on the date of this Amendment, in the event that the Company is required to issue shares pursuant to any legal settlement, judicial order, or pre-existing agreement, the Buyer shall be issued an equal number of shares of Common Stock into which this Note could be converted, and the denominator as is necessary to maintain its original percentage of which is equal to the sum of (x) the number of shares of Common Stock then outstanding, (y) the number of shares of Common Stock into which this Note could be converted, and (z) the number of shares of Common Stock issuable upon conversion or exercise of all outstanding options, warrants and other rights for the purchase of capital stock of the Company, and all outstanding shares of all series of preferred stock (such number of Preemptive Shares being referred to herein as the “Common Stock Preemptive Shares”). The Holder may acquire that portion of the Common Stock Preemptive Shares being offered equal to its percentage share ownership of the outstanding Common Stock immediately preceding Company on a fully-diluted basis, at no additional cost and without the issuance of the Preemptive Shares. If need to provide any transaction specified by the Maker in any such notice shall not be consummated within one hundred twenty (120) days from the date of such notice, the Corporation shall again comply with the provisions of this Section 3.5 with respect to such transaction, and the Holder shall again have preemptive rights hereunder with respect to the transaction, regardless of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant to the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of the transaction proposed by the Makeradditional consideration. (c) The restrictions contained in, and preemptive rights granted under, this Section 3.5 shall not apply to: (i) shares of Common Stock issued upon conversion of this Note; (ii) shares of capital stock of the Maker issued in a public offering occurring after the date hereof that results in aggregate gross proceeds to the Maker of at least Fifty Million Dollars ($50,000,000); or (iii) shares of Common Stock issued upon the exercise or conversion of outstanding options, warrants or other Common Stock equivalents in existence on the Issuance Date. The rights granted to the Holder under this Section 3.5 may be waived with respect to any Preemptive Shares by a written waiver executed by the Holder.

Preemptive Rights. (a) Except The Company hereby grants to the Purchaser the preemptive rights to purchase the Purchaser's Proportionate Interest (as set forth defined below) in Section 3.5(c)any issuance or sale of New Securities which the Company may, the Maker shall not from time to time, propose to issue or sell at a price per share of (i) less than $11.00 (subject to appropriate adjustment in the event of any increase or decrease in the number of outstanding shares of Common Stock by virtue of any stock split, stock dividend, reverse stock split, reclassification or other securities, or any rights or options to purchase combination) in the case of Common Stock or other securities(ii) having a conversion price or option or warrant exercise price of less than $11.00 (subject to appropriate adjustment in the event of any increase or decrease in the number of outstanding shares of Common Stock by virtue of any stock split, stock dividends, reverse stock split, reclassification or any debt combination) in the case of securities convertible into or shares exercisable for, Common Stock. For purposes of this Section 11.1, a Purchaser's Proportionate Interest in such an issuance or sale shall mean that portion of such issuance or sale which, if purchased by such Purchaser under this Section 11.1, would allow such Purchaser to own the same percentage of the issued and outstanding Common Stock of the Company after giving effect to such issuance or sale as such Purchaser owned immediately prior to such issuance or sale (calculated on a fully-diluted basis as if all outstanding warrants, options, rights and securities convertible into or exchangeable for Common Stock or other had been exercised in full, but without regard to the adjustment provisions of any outstanding securities, whether now or hereafter authorized and whether unissued or in the treasury (collectively, “Preemptive Shares”), unless the Holder shall first have been given the right to acquire, at a price no less favorable than that at which such Preemptive Shares are to be offered to others, a portion of the Preemptive Shares, as provided in Section 3.5(b). (b) The Maker value of any non-cash "consideration" shall be determined in good faith by the Board of Directors of the Company. (c) In the event the Company proposes to undertake an issuance or sale of New Securities for consideration of less than $11.00 per share as described in clause (a) above, the Company shall give the Holder prior Purchasers written notice of any proposed issuance or sale described in Section 3.5(a)the Company's intention, including describing the price at which such securities are type of New Securities, the price, the maximum amount to be offered issued or sold and the time period for general terms upon which the offering, and Company proposes to issue or sell the Holder same. Each Purchaser shall have thirty (30) days from the giving date of such notice within which to elect to acquire that number of the Preemptive Shares equal agree (by written notice to the product of the total number of Preemptive Shares being offered Company) to purchase its Proportionate Interest in such issuance or sale upon such price and a fraction, determined as of the time immediately prior terms. (d) The preemptive rights hereunder shall not apply to the issuance of the Preemptive Shares, the numerator of which is equal to the sum of (i) the number of shares of Common Stock then outstanding as a result of the conversion of this Note, and (ii) the number of shares of Common Stock into which this Note could be converted, and the denominator of which is equal to the sum of (x) the number of shares of Common Stock then outstanding, (y) the number of shares of Common Stock into which this Note could be converted, and (z) the number of shares of Common Stock issuable upon conversion or exercise of all outstanding options, warrants and other rights for the purchase of capital stock of the Company, and all outstanding shares of all series of preferred stock (such number of Preemptive Shares being referred to herein as the “Common Stock Preemptive Shares”). The Holder may acquire that portion any public offering of the Common Stock Preemptive Shares being offered equal to its percentage ownership or securities convertible into or exchangeable for Common Stock of the outstanding Common Stock immediately preceding Company pursuant to a registration statement filed under the issuance Securities Act with the Commission which is declared effective by the Commission. (e) During the period of 60 days after the expiration of the Preemptive Shares. If any notice period to which the Purchasers are entitled hereunder, the Company shall be permitted to sell or enter into an agreement (pursuant to which the sale or other transaction specified by the Maker in any such notice shall not be consummated closed, if at all, within one hundred twenty (120) 60 days from the date of such notice, said agreement) to sell the Corporation shall again comply with New Securities at a price and upon general terms no more favorable to the provisions of purchasers thereof than specified in the Company's notice to the Purchasers under clause (c) above. (f) The preemptive rights described in this Section 3.5 with respect 11.1 are personal to such transactionthe Purchasers and may not be assigned or transferred, whether by agreement or by operation of law or otherwise, and any attempted transfer shall be void. (g) Upon the Holder shall again have sale or transfer to any person of New Securities as to which the preemptive rights hereunder with respect to shall not have been exercised, such New Securities shall thereafter be transferable free of the transaction, regardless of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant to the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of the transaction proposed by the Makerprovided hereunder. (ch) The restrictions contained in, and preemptive rights granted under, this Section 3.5 hereunder shall not apply to: (i) shares of Common Stock issued terminate upon conversion of this Note; (ii) shares of capital stock of the Maker issued in a public offering occurring after the date hereof that results in aggregate gross proceeds on which a registration statement relating to the Maker of at least Fifty Million Dollars ($50,000,000); or (iii) shares of Common Stock issued upon the exercise or conversion of outstanding options, warrants or other Common Stock equivalents in existence on the Issuance Date. The rights granted to the Holder under this Section 3.5 may be waived with respect to any Preemptive Shares by a written waiver executed an Initial Public Offering is declared effective by the HolderCommission.

Preemptive Rights. (a) Except 5.1 So long as set forth in Section 3.5(c)an Investor Group holds New Preferred Shares with an aggregate liquidation preference of at least $50.0 million, if the Maker shall not Company proposes to issue or sell any shares of Common Stock or other securities, or any rights or options to purchase Common Stock or other securities, or any debt or shares convertible into or exchangeable for Common Stock or other securities, whether now or hereafter authorized and whether unissued or in the treasury (collectively, “Preemptive Shares”), unless the Holder shall first have been given the right to acquire, New Securities at a price no less favorable than that at which the then Cash Value of the New Securities, each Holder in such Preemptive Shares are Investor Group shall have a preemptive right to purchase a pro rata share of such New Securities proposed to be offered to othersissued or sold in accordance with the terms of this Section 5. For purposes of this Section 5.1, a portion an Investor Group Holder’s pro rata share is the ratio of the Preemptive Shares, as provided in Section 3.5(b). (b) The Maker shall give the Holder prior written notice of any proposed issuance or sale described in Section 3.5(a), including the price at which such securities are to be offered and the time period for the offering, and the Holder shall have thirty (30) days from the giving of such notice within which to elect to acquire that number of the Preemptive Shares equal to the product of the total number of Preemptive Shares being offered and a fraction, determined as of the time immediately prior to the issuance of the Preemptive Shares, the numerator of which is equal to the sum of (i) the number of shares of Common Stock then outstanding as a result held by such Investor Group Holder immediately prior to the issuance or sale of New Securities (assuming the conversion of this Note, and (ii) into the largest number of shares of Common Stock into which this Note all shares of New Preferred Shares held by such Investor could then be converted, and the denominator of which is equal ) to the sum of (x) the total number of shares of Common Stock then outstanding, outstanding immediately prior to the issuance or sale of New Securities (y) assuming the conversion into the largest number of shares of Common Stock into which all shares of capital stock of the Company outstanding at such time could then be converted and including all shares of Common Stock issued or issuable upon the exercise of any outstanding warrants or options). If any Investor Group Holder fails to exercise his, her or its preemptive right to purchase his, her or its full pro rata share of New Securities under this Note could be convertedSection 5.1 (each, and a “Non-Purchasing Holder”), the other Investor Group Holders of eligible Investor Groups who exercise their preemptive rights to purchase their full pro rata share of New Securities (zthe “Participating Holders”) shall also have a right of over-allotment to purchase New Securities not purchased by the Non-Purchasing Holders, pro rata according to the shares of Common Stock held by all such Participating Holders (assuming the conversion into the largest number of shares of Common Stock issuable upon conversion or exercise of into which all outstanding options, warrants and other rights for the purchase of capital stock of the Company, and all outstanding shares of all series of preferred stock New Preferred Shares held by such Participating Holders could then be converted) or in such other proportions as they may agree, within ten (such number of Preemptive Shares being referred to herein as the “Common Stock Preemptive Shares”). The Holder may acquire that portion of the Common Stock Preemptive Shares being offered equal to its percentage ownership of the outstanding Common Stock immediately preceding the issuance of the Preemptive Shares. If any transaction specified by the Maker in any such notice shall not be consummated within one hundred twenty (12010) days from Business Days after the date of such notice, the Corporation shall again comply with the provisions of this Section 3.5 with respect Non-Purchasing Holders fail to such transaction, and the Holder shall again have exercise their preemptive rights hereunder with respect to purchase his, her or its full pro rata share of New Securities. 5.2 In the transactionevent the Company proposes to issue or sell New Securities, regardless it shall give each Investor Group Holder of whether any an eligible Investor Group written notice of its intention, describing the New Securities, their price and the terms upon which the Company proposes to issue or sell the same. Each such stockholder had previously exercised or failed to exercise Investor Group Holder shall have twenty-five (25) days after such rights. Any purchase of securities notice is given (unless the Cash Value is disputed, in which case the twenty-five (25) day period will be suspended until the Cash Value is determined pursuant to the definition of Cash Value) to agree to purchase such Investor Group Holder’s pro rata share of such New Securities for the price and upon the terms specified in the notice by giving written notice to the Company and stating therein the quantity of New Securities to be purchased. 5.3 In the event that the Investor Group Holders of eligible Investor Groups fail to exercise fully all preemptive rights within said twenty-five (25)-day period and after the expiration of the ten (10)-day period for the exercise of the over-allotment provisions of Section 5.1, the Company shall have ninety (90) days thereafter to sell the remaining New Securities that the Investor Group Holders of eligible Investor Groups do not elect to purchase upon exercise of the preemptive rights pursuant to this Section 5, at a price and upon terms no more favorable to the purchasers thereof than specified in the Company’s notice to the Investor Group Holders pursuant to Section 5.2. In the event the Company has not sold all such remaining New Securities within such ninety (90)-day period, the Company shall be consummated simultaneously withnot thereafter issue or sell any New Securities, and shall be conditioned upon, consummation without first again offering such securities to the Investor Group Holders of eligible Investor Groups in the transaction proposed by the Makermanner provided in Section 5.2. (c) 5.4 The restrictions contained in, rights and preemptive rights granted under, obligations set forth in this Section 3.5 5 shall not apply to: (i) shares of Common Stock issued upon conversion of this Note; (ii) shares of capital stock of the Maker issued in a public offering occurring after the date hereof that results in aggregate gross proceeds to the Maker of at least Fifty Million Dollars ($50,000,000); or (iii) shares of Common Stock issued terminate upon the exercise or conversion completion of outstanding options, warrants or other Common Stock equivalents in existence on the Issuance Date. The rights granted to the Holder under this Section 3.5 may be waived with respect to any Preemptive Shares by a written waiver executed by the HolderQualified Public Offering.

Preemptive Rights. (a) Except Until the earlier of (i) the termination of this Agreement pursuant to Article IV hereunder or (ii) January 2, 2010, if the Company proposes to sell any subordinated debt, Equity Securities or Derivative Securities (other than Excluded Shares) (all such securities, other than Excluded Shares, are referred to collectively herein as set forth in Section 3.5(c"Additional Securities"), the Maker Company shall not issue or sell first give to each Investor (and, only with respect to preferred shares, to any Holders) holding shares of Common Series B-1 Stock or other securities, or any rights or options the opportunity (such opportunity being herein referred to as the "Preemptive Right") to purchase Common Stock or other securities, or any debt or shares convertible into or exchangeable for Common Stock or other securities, whether now or hereafter authorized and whether unissued or in (on the treasury (collectively, “Preemptive Shares”), unless the Holder shall first have been given the right to acquire, at a price no less favorable than that at which same terms as such Preemptive Shares Additional Securities are proposed to be offered to others, a portion sold) the same percentage of the Preemptive Shares, as provided in Section 3.5(b). (b) The Maker shall give the Holder prior written notice of any such Additional Securities proposed issuance or sale described in Section 3.5(a), including the price at which such securities are to be offered and sold by the time period for Company as equals the offering, and the Holder shall have thirty (30) days from the giving of such notice within which to elect to acquire that number of the Preemptive Shares percentage equal to the product of the total number of Preemptive Shares being offered and a fraction, determined as of the time immediately prior to the issuance of the Preemptive Shares, the numerator of which is equal to the sum quotient of (i) the number of shares of Common Stock then into which the shares held by such Investor of Series B-1 Stock could be converted, divided by (ii) the sum of (A) all the outstanding as a result shares of Common Stock of the conversion of this Note, Company and (iiB) the number of shares of Common Stock into which this Note all the shares of Series B-1 Stock held by all Investors (and Holders, if applicable) could be converted; provided, and however, that no Preemptive Rights shall apply (i) to any issuance of Additional Securities pursuant to a registration statement filed under the denominator Securities Act; or (ii) any issuance of which is equal rights to all holders of Common Stock (or of all Voting Securities) of the Company. (b) At least 20 days prior to the sum issuance by the Company of any Additional Securities, the Company shall give written notice thereof (xthe "Preemptive Notice") to each Investor and Holders (if applicable). The Preemptive Notice shall specify (i) the name and address of the bona fide investor (if known) to whom the Company proposes to issue or sell Additional Securities, (ii) the total amount of capital to be raised by the Company pursuant to the issuance or sale of Additional Securities, (iii) the number of shares of Common Stock then outstandingsuch Additional Securities proposed to be issued or sold, (yiv) the price and other terms of the Additional Securities and of their proposed issuance or sale, (v) the number of shares of Common Stock into such Additional Securities which this Note could be convertedsuch Investor is entitled to purchase (determined as provided in Section 3.2(a)), and (zvi) the period during which such Investor may elect to purchase such Additional Securities, which period shall extend for at least 20 days following the receipt by such Investor or Holder, as applicable, of the Preemptive Notice (the "Preemptive Acceptance Period"). Each Investor who desires to purchase Additional Securities shall notify the Company within the Preemptive Acceptance Period of the number of shares Additional Securities he wishes to purchase, as well as the number, if any, of Common Stock issuable upon conversion or exercise of extra Additional Securities ("Extra Additional Securities") he would be willing to purchase in the event that all outstanding options, warrants and other rights for the purchase of capital stock of the Company, Additional Securities subject to the Preemptive Right are not subscribed for by the other Investors and all outstanding shares of all series of preferred stock Holders (such number of the "Preemptive Shares being referred to herein as the “Common Stock Preemptive Shares”Acceptance Notice"). The Holder may acquire that portion Notwithstanding the foregoing, the rights of Grandview, LLC ("Grandview") under this Section 3.2 shall be subject to Grandview's prior written consent to receive material non-public information as set forth in Section 6.01 of the Common Stock Preemptive Shares being offered equal to its percentage ownership of the outstanding Common Stock immediately preceding the issuance of the Preemptive Shares. If any transaction specified by the Maker in any such notice shall not be consummated within one hundred twenty (120) days from the date of such notice, the Corporation shall again comply with the provisions of this Section 3.5 with respect to such transaction, and the Holder shall again have preemptive rights hereunder with respect to the transaction, regardless of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant to the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of the transaction proposed by the MakerPurchase Agreement. (c) The restrictions contained inIn the event an Investor or Holder, and preemptive rights granted underas applicable, this Section 3.5 declines to subscribe for all or any part of its pro rata portion of any Additional Securities which are subject to the Preemptive Right (the "Declining Preemptive Purchaser") during the Preemptive Acceptance Period, then the other Investors or Holders, as applicable, shall not apply to:have the right to subscribe for all (or any declined part) of such Declining Preemptive Purchaser's pro rata portion of such Additional Securities (to be divided among the other Investors desiring to exercise such right on a ratable basis) (the "Overallotment Right"). Each Investor's Overallotment Right, if any, shall be deemed to be exercised on the date the Preemptive Acceptance Notice is given. (id) shares of Common Stock issued upon conversion of this Note; (ii) shares of capital stock After the conclusion of the Maker issued in Preemptive Acceptance Period, Additional Securities, less any Additional Securities for which Preemptive Rights or Overallotment Rights are exercised, may be sold by the Company, within a public offering occurring period of 4 months after the date hereof that results in aggregate gross proceeds expiration of the Preemptive Acceptance Period, to any other Person or Persons at not less than the price and upon other terms and conditions not less favorable to the Maker of at least Fifty Million Dollars ($50,000,000); or (iii) shares of Common Stock issued upon Company than those set forth in the exercise or conversion of outstanding options, warrants or other Common Stock equivalents in existence on the Issuance Date. The rights granted to the Holder under this Section 3.5 may be waived with respect to any Preemptive Shares by a written waiver executed by the HolderNotice.

Preemptive Rights. (a) Except as set forth in Section 3.5(c), In the Maker shall not event the Company proposes to issue Common Shares or sell any shares of any other class of common stock of the Company (any such securities and the Common Stock or other securitiesShares are for the purposes of this Section 6.1 referred to as "Shares of Common Equity"), or any rights or options to purchase Common Stock or other securities, or any debt or shares securities convertible into or exercisable or exchangeable for Shares of Common Stock Equity ("Convertible Securities"), to the DLJMB Entities (or any Affiliate of a DLJMB Entity) other securitiesthan the issuance of Warrant Shares, whether now or hereafter authorized the Company shall give ZS and whether unissued or Uhlenhop written notice of such proposed issuance and ZS and Uhlenhop shall have the right, but not the obligation, exercisable within 35 days after receipt of such notice, to require the Company to, and in the treasury event such right is exercised, the Company shall offer ZS and Uhlenhop the opportunity to, acquire such Shares of Common Equity or Convertible Securities on the same basis so that the proportionate interest of each party who actually acquires Shares of Common Equity or Convertible Securities as contemplated in this Section 6.1(a) (collectivelyincluding any issuance that gives rise to the applicability of this Section 6.1(a)) in the Fully Diluted Shares of Common Equity relative to each other party who actually acquires Shares of Common Equity or Convertible Securities as contemplated in this Section 6.1(a) (including any issuance that gives rise to the applicability of this Section 6.1(a)) would remain the same after giving effect to the issuance of such Shares or Convertible Securities; PROVIDED, “Preemptive Shares”)HOWEVER, unless that, to the Holder extent applicable, the calculation of Uhlenhop's proportionate interest shall first have been given be based solely on the right sum of the Common Shares he owns and the Vested Option Shares he is otherwise entitled to acquire, as of the date of the determination of such proportionate interest. Such issuance shall be at a the same price per share and on terms no less favorable to ZS and Uhlenhop than that at which such Preemptive Shares are to be offered to others, a portion those of the Preemptive Sharesproposed issuance to the DLJMB Entities (or any Affiliate of a DLJMB entity). Notwithstanding the foregoing, neither ZS nor Uhlenhop shall have any preemptive right with respect to any Shares of Common Equity or Convertible Securities issued to or on behalf of directors, officers or employees of the Company or any of its subsidiaries pursuant to duly adopted stock bonus, stock option or other employee compensation plans or agreements. The rights granted to ZS and Uhlenhop pursuant to this Section 6.1(a) shall be available to such party only so long as such party owns beneficially at least 25% of its or his, as provided in Section 3.5(b)the case may be, Initial Ownership. (b) The Maker shall give the Holder prior written notice of any proposed issuance or sale described in Section 3.5(a), including the price at which such securities are to be offered and the time period for the offering, and the Holder shall have thirty (30) days from the giving of such notice within which to elect to acquire that number Each of the Preemptive Shares equal Shareholders agree to take all such actions, including, without limitations, amending the product Articles of the total number of Preemptive Shares being offered Incorporation and a fractionBylaws, determined as of the time immediately prior are reasonably required to the issuance of the Preemptive Shares, the numerator of which is equal give effect to the sum of (i) the number of shares of Common Stock then outstanding as a result of the conversion of this Note, and (ii) the number of shares of Common Stock into which this Note could be converted, and the denominator of which is equal to the sum of (x) the number of shares of Common Stock then outstanding, (y) the number of shares of Common Stock into which this Note could be converted, and (z) the number of shares of Common Stock issuable upon conversion or exercise of all outstanding options, warrants and other rights for the purchase of capital stock of the Company, and all outstanding shares of all series of preferred stock (such number of Preemptive Shares being referred to herein as the “Common Stock Preemptive Shares”). The Holder may acquire that portion of the Common Stock Preemptive Shares being offered equal to its percentage ownership of the outstanding Common Stock immediately preceding the issuance of the Preemptive Shares. If any transaction specified by the Maker in any such notice shall not be consummated within one hundred twenty (120) days from the date of such notice, the Corporation shall again comply with the provisions of this Section 3.5 with respect to such transaction, and the Holder shall again have preemptive rights hereunder with respect to the transaction, regardless of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant to the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of the transaction proposed by the Maker6.1(a). (c) The restrictions contained in, and preemptive rights granted under, this Section 3.5 shall not apply to: (i) shares of Common Stock issued upon conversion of this Note; (ii) shares of capital stock of the Maker issued in a public offering occurring after the date hereof that results in aggregate gross proceeds to the Maker of at least Fifty Million Dollars ($50,000,000); or (iii) shares of Common Stock issued upon the exercise or conversion of outstanding options, warrants or other Common Stock equivalents in existence on the Issuance Date. The rights granted to the Holder under this Section 3.5 may be waived with respect to any Preemptive Shares by a written waiver executed by the Holder.

Preemptive Rights. (a) 2.1. Except as set forth in Section 3.5(c)for Excluded Securities, the Maker Corporation shall not issue issue, sell or exchange, agree to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, (i) any shares of Common Stock or Stock, (ii) any other securitiesequity security of the Corporation, or any rights or options to purchase Common Stock or other securities, or (iii) any debt or shares security of the Corporation which by its terms is convertible into or exchangeable for for, with or without consideration, any equity security of the Corporation, (iv) any security of the Corporation that is a combination of debt and equity or (v) any security convertible into, or exchangeable or exercisable for, shares of Common Stock Stock, or warrant or other securitiesright to subscribe for, whether now purchase or hereafter authorized and whether unissued otherwise acquire any equity security or any such debt security of the type described in clause (iii) or (iv) above of the treasury Corporation (collectively, the “Preemptive SharesFinancing Securities”)) unless in each case the Corporation shall have first offered to sell to each Investor then holding at least 2,000,000 shares in the aggregate of Series D Preferred or Series C Preferred (subject to appropriate and proportionate adjustment for any stock dividends, unless stock splits and other subdivisions and combinations of, and recapitalizations and like occurrences with respect to, such shares) (or an equivalent amount of Common Stock issued upon conversion thereof) (each, a “Major Investor” and collectively, the Holder shall first have been given “Major Investors”) its pro-rata share of the right to acquireFinancing Securities, at a price no less favorable than that at and on such other terms as the Corporation proposes to offer such Financing Securities to other parties and which such Preemptive Shares are to be offered to others, a portion of the Preemptive Shares, as provided in Section 3.5(b). (b) The Maker shall give the Holder prior written notice of any proposed issuance or sale described in Section 3.5(a), including the price at which such securities are to be offered and the time period for the offering, and the Holder shall have thirty been specified by the Corporation in writing (30an “Offer”) delivered to the Major Investors, which Offer by its terms shall remain open and irrevocable for a period of fifteen (15) days from the date the Offer is received by the Major Investors (or, if later, within five (5) days after the giving of any written notice of a material change in such notice within which to elect to acquire Offer). As used in this Section 2(a), a Major Investor’s “pro-rata share” shall be that number amount of the Preemptive Shares equal Financing Securities that equals (x) the aggregate amount of Financing Securities to the product of the total number of Preemptive Shares being offered and be issued, sold or exchanged, multiplied by (y) a fraction, determined as of the time immediately prior to the issuance of the Preemptive Shares, fraction (A) the numerator of which is equal to the sum of (i) the number of shares of Common Stock then outstanding as a result of issued or issuable upon the conversion of this Note, all shares of Preferred Stock held by such Major Investor immediately prior to the Offer and (iiB) the denominator of which is the number of shares of Common Stock into which this Note could be converted, and issued or issuable upon the denominator conversion of which is equal all shares of Preferred Stock held by all Major Investors immediately prior to the sum Offer. The Offer will specify (i) the aggregate amount of Financing Securities to be issued, sold or exchanged, (xii) the calculation of the Major Investor’s pro rata share and (iii) the number of shares shares, principal amount or the like of Common Stock then outstandingthe Financing Securities which such Major Investor may purchase. 2.2. Notice of a Major Investor’s intention to accept, in whole or in part, an Offer shall be evidenced by a writing signed by the Major Investor and delivered to the Corporation at or prior to the end of the 15-day period commencing with the date the Offer is received by the Major Investor (y) or, if later, within 5 days after the giving of any written notice of a material change in such Offer), setting forth such portion (specifying number of shares of Common Stock into which this Note could be convertedshares, and (zprincipal amount or the like) the number of shares of Common Stock issuable upon conversion or exercise of all outstanding options, warrants and other rights for the purchase of capital stock of the Company, and all outstanding shares of all series of preferred stock (such number of Preemptive Shares being referred to herein Financing Securities as the Major Investor elects to purchase (the “Common Stock Preemptive SharesNotice of Acceptance”). If a Major Investor elects to purchase its full pro rata share of Financing Securities (each, an “Electing Investor”), then such Electing Investor shall have a right of over-allotment such that if any other Major Investor fails to purchase its pro rata share (the “Non-electing Investor”), such Electing Investor may purchase, on a pro rata basis with other Electing Investors, the Non-electing Investor’s pro rata share. 2.3. The Holder may acquire that portion of the Common Stock Preemptive Shares being offered equal to its percentage ownership of the outstanding Common Stock immediately preceding the issuance of the Preemptive Shares. If any transaction specified by the Maker in any such notice Corporation shall not be consummated within one hundred twenty (120) have 180 days from the date expiration of the foregoing 15-day period to sell all or any part of such noticeFinancing Securities as to which a Notice of Acceptance has not been given by the Major Investors (the “Remaining Securities”) to any other persons or entities, but only upon terms and conditions in all material respects, including without limitation, per share price and interest rates, which are no more favorable, in the aggregate, to such other persons or entities or less favorable to the Corporation than those set forth in the Offer. Upon the closing of the sale to such other persons or entities of all or any part of the Remaining Securities, which shall include payment of the purchase price to the Corporation in accordance with the terms of the Offer, if the Major Investor has timely submitted a Notice of Acceptance, it shall purchase from the Corporation, and the Corporation shall again comply with sell to the provisions Major Investor, the Financing Securities in respect of this Section 3.5 with respect which a Notice of Acceptance was delivered to the Corporation by the Preferred Investor, at the terms specified in the Offer. The purchase by the Major Investor of any Financing Securities is subject in all cases to the preparation, execution and delivery by the Corporation and the Major Investor of a purchase agreement and other customary documentation relating to such transaction, Financing Securities as is reasonably satisfactory in form and the Holder shall again have preemptive rights hereunder with respect substance to the transactionPreferred Investor and its counsel. 2.4. After the expiration of the 180-day period referred to in Section 2.2, regardless any Financing Securities not purchased by the Major Investors or by a person or entity in accordance with Section 2.2 may not be sold or otherwise disposed of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant until they are again offered to the exercise of preemptive rights shall be consummated simultaneously withPreferred Investors under the procedures specified in Sections 2.1, 2.2 and shall be conditioned upon, consummation of the transaction proposed by the Maker2.2 hereof. (c) The restrictions contained in, and preemptive 2.5. Each Major Investor may assign its rights granted under, this Section 3.5 shall not apply to: (i) shares of Common Stock issued upon conversion of this Note; (ii) shares of capital stock of the Maker issued in a public offering occurring after the date hereof that results in aggregate gross proceeds to the Maker of at least Fifty Million Dollars ($50,000,000); or (iii) shares of Common Stock issued upon the exercise or conversion of outstanding options, warrants or other Common Stock equivalents in existence on the Issuance Date. The rights granted to the Holder under this Section 3.5 may be waived with respect 2 to any Preemptive Shares by a written waiver executed by the Holderits Affiliates.

Preemptive Rights. (a) Except The Company hereby grants to each Purchaser the preemptive rights to purchase such Purchaser's Proportionate Interest (as set forth defined below) in Section 3.5(c)any issuance or sale of New Securities which the Company may, the Maker shall not from time to time, propose to issue or sell at a price per share of (i) less than $16.00 (subject to appropriate adjustment in the event of any increase or decrease in the number of outstanding shares of Common Stock by virtue of any stock split, stock dividend, reverse stock split, reclassification or other securities, or any rights or options to purchase combination) in the case of Common Stock or other securities(ii) having a conversion price or option or warrant exercise price of less than $16.00 (subject to appropriate adjustment in the event of any increase or decrease in the number of outstanding shares of Common Stock by virtue of any stock split, stock dividends, reverse stock split, reclassification or any debt combination) in the case of securities convertible into or shares exercisable for, Common Stock. For purposes of this Section 11.1, a Purchaser's Proportionate Interest in such an issuance or sale shall mean that portion of such issuance or sale which, if purchased by such Purchaser under this Section 11.1, would allow such Purchaser to own the same percentage of the issued and outstanding Common Stock of the Company after giving effect to such issuance or sale as such Purchaser owned immediately prior to such issuance or sale (calculated on a fully-diluted basis as if all outstanding warrants, options, rights and securities convertible into or exchangeable for Common Stock or other had been exercised in full, but without regard to the adjustment provisions of any outstanding securities, whether now or hereafter authorized and whether unissued or in the treasury (collectively, “Preemptive Shares”), unless the Holder shall first have been given the right to acquire, at a price no less favorable than that at which such Preemptive Shares are to be offered to others, a portion of the Preemptive Shares, as provided in Section 3.5(b). (b) The Maker value of any non-cash "consideration" shall be determined in good faith by the Board of Directors of the Company. (c) In the event the Company proposes to undertake an issuance or sale of New Securities for consideration of less than $16.00 per share as described in clause (a) above, the Company shall give the Holder prior Purchasers written notice of any proposed issuance or sale described in Section 3.5(a)the Company's intention, including describing the price at which such securities are type of New Securities, the price, the maximum amount to be offered issued or sold and the time period for general terms upon which the offering, and Company proposes to issue or sell the Holder same. Each Purchaser shall have thirty (30) days from the giving date of such notice within which to elect to acquire that number of the Preemptive Shares equal agree (by written notice to the product of the total number of Preemptive Shares being offered Company) to purchase its Proportionate Interest in such issuance or sale upon such price and a fraction, determined as of the time immediately prior terms. (d) The preemptive rights hereunder shall not apply to the issuance of the Preemptive Shares, the numerator of which is equal to the sum of (i) the number of shares of Common Stock then outstanding as a result of the conversion of this Note, and (ii) the number of shares of Common Stock into which this Note could be converted, and the denominator of which is equal to the sum of (x) the number of shares of Common Stock then outstanding, (y) the number of shares of Common Stock into which this Note could be converted, and (z) the number of shares of Common Stock issuable upon conversion or exercise of all outstanding options, warrants and other rights for the purchase of capital stock of the Company, and all outstanding shares of all series of preferred stock (such number of Preemptive Shares being referred to herein as the “Common Stock Preemptive Shares”). The Holder may acquire that portion any public offering of the Common Stock Preemptive Shares being offered equal to its percentage ownership or securities convertible into or exchangeable for Common Stock of the outstanding Common Stock immediately preceding Company pursuant to a registration statement filed under the issuance Securities Act with the Commission which is declared effective by the Commission. (e) During the period of 60 days after the expiration of the Preemptive Shares. If any notice period to which the Purchasers are entitled hereunder, the Company shall be permitted to sell or enter into an agreement (pursuant to which the sale or other transaction specified by the Maker in any such notice shall not be consummated closed, if at all, within one hundred twenty (120) 60 days from the date of such notice, said agreement) to sell the Corporation shall again comply with New Securities at a price and upon general terms no more favorable to the provisions of purchasers thereof than specified in the Company's notice to the Purchasers under clause (c) above. (f) The preemptive rights described in this Section 3.5 with respect 11.1 are personal to such transactionthe Purchasers and may not be assigned or transferred, whether by agreement or by operation of law or otherwise, and any attempted transfer shall be void. (g) Upon the Holder shall again have sale or transfer to any person of New Securities as to which the preemptive rights hereunder with respect to shall not have been exercised, such New Securities shall thereafter be transferable free of the transaction, regardless of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant to the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of the transaction proposed by the Makerprovided hereunder. (ch) The restrictions contained in, and preemptive rights granted under, this Section 3.5 hereunder shall not apply to: (i) shares of Common Stock issued terminate upon conversion of this Note; (ii) shares of capital stock of the Maker issued in a public offering occurring after the date hereof that results in aggregate gross proceeds on which a registration statement relating to the Maker of at least Fifty Million Dollars ($50,000,000); or (iii) shares of Common Stock issued upon the exercise or conversion of outstanding options, warrants or other Common Stock equivalents in existence on the Issuance Date. The rights granted to the Holder under this Section 3.5 may be waived with respect to any Preemptive Shares by a written waiver executed an Initial Public Offering is declared effective by the HolderCommission.

Preemptive Rights. (a) 2.1. Except as set forth in Section 3.5(c)for Excluded Securities, the Maker Corporation shall not issue issue, sell or exchange, agree to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, (i) any shares of Common Stock or Stock, (ii) any other securitiesequity security of the Corporation, or any rights or options to purchase Common Stock or other securities, or (iii) any debt or shares security of the Corporation which by its terms is convertible into or exchangeable for for, with or without consideration, any equity security of the Corporation, (iv) any security of the Corporation that is a combination of debt and equity or (v) any security convertible into, or exchangeable or exercisable for, shares of Common Stock Stock, or warrant or other securitiesright to subscribe for, whether now purchase or hereafter authorized and whether unissued otherwise acquire any equity security or any such debt security of the type described in clause (iii) or (iv) above of the treasury Corporation (collectively, the “Preemptive SharesFinancing Securities”)) unless in each case the Corporation shall have first offered to sell to each holder of Series H Preferred (each, unless a “Major Investor” and collectively, the Holder shall first have been given “Major Investors”) its pro rata share of the right to acquireFinancing Securities, at a price no less favorable than that at and on such other terms as the Corporation proposes to offer such Financing Securities to other parties and which such Preemptive Shares are to be offered to others, a portion of the Preemptive Shares, as provided in Section 3.5(b). (b) The Maker shall give the Holder prior written notice of any proposed issuance or sale described in Section 3.5(a), including the price at which such securities are to be offered and the time period for the offering, and the Holder shall have thirty been specified by the Corporation in writing (30an “Offer”) delivered to the Major Investors, which Offer by its terms shall remain open and irrevocable for a period of fifteen (15) days from the date the Offer is received by the Major Investors (or, if later, within five (5) days after the giving of any written notice of a material change in such notice within which to elect to acquire Offer). As used in this Section 2.1, a Major Investor’s “pro rata share” shall be that number amount of the Preemptive Shares equal Financing Securities that equals (x) the aggregate amount of Financing Securities to the product of the total number of Preemptive Shares being offered and be issued, sold or exchanged, multiplied by (y) a fraction, determined as of the time immediately prior to the issuance of the Preemptive Shares, (A) the numerator of which is equal to the sum of (i) the number of shares of Common Stock then outstanding as a result of issued or issuable upon the conversion of this Note, all shares of Preferred Stock held by such Major Investor immediately prior to the Offer and (iiB) the denominator of which is the number of shares of Common Stock into which this Note could be converted, and issued or issuable upon the denominator conversion of which is equal all shares of Preferred Stock held by all Major Investors immediately prior to the sum Offer. The Offer will specify (i) the aggregate amount of Financing Securities to be issued, sold or exchanged, (xii) the calculation of the Major Investor’s pro rata share and (iii) the number of shares shares, principal amount or the like of Common Stock then outstandingthe Financing Securities which such Major Investor may purchase. 2.2. Notice of a Major Investor’s intention to accept, in whole or in part, an Offer shall be evidenced by a writing signed by the Major Investor and delivered to the Corporation at or prior to the end of the 15-day period commencing with the date the Offer is received by the Major Investor (y) or, if later, within 5 days after the giving of any written notice of a material change in such Offer), setting forth such portion (specifying the number of shares of Common Stock into which this Note could be convertedshares, and (zprincipal amount or the like) the number of shares of Common Stock issuable upon conversion or exercise of all outstanding options, warrants and other rights for the purchase of capital stock of the Company, and all outstanding shares of all series of preferred stock (such number of Preemptive Shares being referred to herein Financing Securities as the Major Investor elects to purchase (the “Common Stock Preemptive SharesNotice of Acceptance”). If a Major Investor elects to purchase its full pro rata share of Financing Securities (each, an “Electing Investor”), then such Electing Investor shall have a right of over-allotment such that if any other Major Investor fails to purchase its pro rata share (the “Non-electing Investor”), such Electing Investor may purchase, on a pro rata basis with other Electing Investors, the Non-electing Investor’s pro rata share. 2.3. The Holder may acquire that portion of the Common Stock Preemptive Shares being offered equal to its percentage ownership of the outstanding Common Stock immediately preceding the issuance of the Preemptive Shares. If any transaction specified by the Maker in any such notice Corporation shall not be consummated within one hundred twenty (120) have 180 days from the date expiration of the foregoing 15-day period to sell all or any part of such noticeFinancing Securities as to which a Notice of Acceptance has not been given by the Major Investors (the “Remaining Securities”) to any other persons or entities, but only upon terms and conditions in all material respects, including without limitation, per share price and interest rates, which are no more favorable, in the aggregate, to such other persons or entities or less favorable to the Corporation than those set forth in the Offer. Upon the closing of the sale to such other persons or entities of all or any part of the Remaining Securities, which shall include payment of the purchase price to the Corporation in accordance with the terms of the Offer, if the Major Investor has timely submitted a Notice of Acceptance, it shall purchase from the Corporation, and the Corporation shall again comply with sell to the provisions Major Investor, the Financing Securities in respect of this Section 3.5 with respect which a Notice of Acceptance was delivered to the Corporation by the Preferred Investor, at the terms specified in the Offer. The purchase by the Major Investor of any Financing Securities is subject in all cases to the preparation, execution and delivery by the Corporation and the Major Investor of a purchase agreement and other customary documentation relating to such transaction, Financing Securities as is reasonably satisfactory in form and the Holder shall again have preemptive rights hereunder with respect substance to the transactionPreferred Investor and its counsel. 2.4. After the expiration of the 180-day period referred to in Section 2.3, regardless any Financing Securities not purchased by the Major Investors or by a person or entity in accordance with Section 2.3 may not be sold or otherwise disposed of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant until they are again offered to the exercise of preemptive rights shall be consummated simultaneously withMajor Investors under the procedures specified in Sections 2.1, 2.2 and shall be conditioned upon, consummation of the transaction proposed by the Maker2.3 hereof. (c) The restrictions contained in, and preemptive 2.5. Each Major Investor may assign its rights granted under, this Section 3.5 shall not apply to: (i) shares of Common Stock issued upon conversion of this Note; (ii) shares of capital stock of the Maker issued in a public offering occurring after the date hereof that results in aggregate gross proceeds to the Maker of at least Fifty Million Dollars ($50,000,000); or (iii) shares of Common Stock issued upon the exercise or conversion of outstanding options, warrants or other Common Stock equivalents in existence on the Issuance Date. The rights granted to the Holder under this Section 3.5 may be waived with respect 2 to any Preemptive Shares by a written waiver executed by the Holderits Affiliates.

Preemptive Rights. (a) Except The Company hereby grants to the Purchaser the preemptive rights to purchase the Purchaser's Proportionate Interest (as set forth defined below) in Section 3.5(c)any issuance or sale of New Securities which the Company may, the Maker shall not from time to time, propose to issue or sell at a price per share of (i) less than $9.00 (subject to appropriate adjustment in the event of any increase or decrease in the number of outstanding shares of Common Stock by virtue of any stock split, stock dividend, reverse stock split, reclassification or other securities, or any rights or options to purchase combination) in the case of Common Stock or other securities(ii) having a conversion price or option or warrant exercise price of less than $9.00 (subject to appropriate adjustment in the event of any increase or decrease in the number of outstanding shares of Common Stock by virtue of any stock split, stock dividends, reverse stock split, reclassification or any debt combination) in the case of securities convertible into or shares exercisable for, Common Stock. For purposes of this Section 11.1, a Purchaser's Proportionate Interest in such an issuance or sale shall mean that portion of such issuance or sale which, if purchased by such Purchaser under this Section 11.1, would allow such Purchaser to own the same percentage of the issued and outstanding Common Stock of the Company after giving effect to such issuance or sale as such Purchaser owned immediately prior to such issuance or sale (calculated on a fully-diluted basis as if all outstanding warrants, options, rights and securities convertible into or exchangeable for Common Stock or other had been exercised in full, but without regard to the adjustment provisions of any outstanding securities, whether now or hereafter authorized and whether unissued or in the treasury (collectively, “Preemptive Shares”), unless the Holder shall first have been given the right to acquire, at a price no less favorable than that at which such Preemptive Shares are to be offered to others, a portion of the Preemptive Shares, as provided in Section 3.5(b). (b) The Maker value of any non-cash "consideration" shall be determined in good faith by the Board of Directors of the Company. (c) In the event the Company proposes to undertake an issuance or sale of New Securities for consideration of less than $9.00 per share as described in clause (a) above, the Company shall give the Holder prior Purchasers written notice of any proposed issuance or sale described in Section 3.5(a)the Company's intention, including describing the price at which such securities are type of New Securities, the price, the maximum amount to be offered issued or sold and the time period for general terms upon which the offering, and Company proposes to issue or sell the Holder same. Each Purchaser shall have thirty (30) days from the giving date of such notice within which to elect to acquire that number of the Preemptive Shares equal agree (by written notice to the product of the total number of Preemptive Shares being offered Company) to purchase its Proportionate Interest in such issuance or sale upon such price and a fraction, determined as of the time immediately prior terms. (d) The preemptive rights hereunder shall not apply to the issuance of the Preemptive Shares, the numerator of which is equal to the sum of (i) the number of shares of Common Stock then outstanding as a result of the conversion of this Note, and (ii) the number of shares of Common Stock into which this Note could be converted, and the denominator of which is equal to the sum of (x) the number of shares of Common Stock then outstanding, (y) the number of shares of Common Stock into which this Note could be converted, and (z) the number of shares of Common Stock issuable upon conversion or exercise of all outstanding options, warrants and other rights for the purchase of capital stock of the Company, and all outstanding shares of all series of preferred stock (such number of Preemptive Shares being referred to herein as the “Common Stock Preemptive Shares”). The Holder may acquire that portion any public offering of the Common Stock Preemptive Shares being offered equal to its percentage ownership or securities convertible into or exchangeable for Common Stock of the outstanding Common Stock immediately preceding Company pursuant to a registration statement filed under the issuance Securities Act with the Commission which is declared effective by the Commission. (e) During the period of 60 days after the expiration of the Preemptive Shares. If any notice period to which the Purchasers are entitled hereunder, the Company shall be permitted to sell or enter into an agreement (pursuant to which the sale or other transaction specified by the Maker in any such notice shall not be consummated closed, if at all, within one hundred twenty (120) 60 days from the date of such notice, said agreement) to sell the Corporation shall again comply with New Securities at a price and upon general terms no more favorable to the provisions of purchasers thereof than specified in the Company's notice to the Purchasers under clause (c) above. (f) The preemptive rights described in this Section 3.5 with respect 11.1 are personal to such transactionthe Purchasers and may not be assigned or transferred, whether by agreement or by operation of law or otherwise, and any attempted transfer shall be void. (g) Upon the Holder shall again have sale or transfer to any person of New Securities as to which the preemptive rights hereunder with respect to shall not have been exercised, such New Securities shall thereafter be transferable free of the transaction, regardless of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant to the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of the transaction proposed by the Makerprovided hereunder. (ch) The restrictions contained in, and preemptive rights granted under, this Section 3.5 hereunder shall not apply to: (i) shares of Common Stock issued terminate upon conversion of this Note; (ii) shares of capital stock of the Maker issued in a public offering occurring after the date hereof that results in aggregate gross proceeds on which a registration statement relating to the Maker of at least Fifty Million Dollars ($50,000,000); or (iii) shares of Common Stock issued upon the exercise or conversion of outstanding options, warrants or other Common Stock equivalents in existence on the Issuance Date. The rights granted to the Holder under this Section 3.5 may be waived with respect to any Preemptive Shares by a written waiver executed an Initial Public Offering is declared effective by the HolderCommission.

Preemptive Rights. (a) Except If the Company proposes to issue and sell, other than in an Exempted Issuance (as set forth in Section 3.5(cdefined below), the Maker shall not issue any of its shares of Common Stock or sell any securities containing options or rights to acquire any shares of Common Stock or other securities, or any rights or options to purchase securities convertible into shares of Common Stock (such shares and other securities are hereinafter collectively referred to as "NEWLY ISSUED STOCK") (hereinafter, a "PREEMPTIVE ISSUANCE"), the Company will first offer to each Lender a portion of the number or other securities, amount of such securities proposed to be sold in any such transaction or any debt series of related transactions equal to such Lender's pro rata share of the proposed issue of Common Stock (or shares securities convertible into or exchangeable for Common Stock or other securities, whether now or hereafter authorized and whether unissued or in the treasury (collectively, “Preemptive Shares”Stock), unless all for the Holder shall first have been given same price and on the right to acquire, at a price no less favorable than that same terms at which such Preemptive Shares are to be offered to others, a portion of the Preemptive Shares, as provided in Section 3.5(b). (b) The Maker shall give the Holder prior written notice of any proposed issuance or sale described in Section 3.5(a), including the price at which such securities are to be offered and the time period for the offering, and the Holder shall have thirty (30) days from the giving of such notice within which to elect to acquire that number of the Preemptive Shares equal to the product of the total number of Preemptive Shares being offered and a fraction, determined as of the time immediately prior to Company has authorized the issuance of the Preemptive Sharessuch securities. For purposes of this Section 3.5, the numerator a Lender's "pro rata share" of an issue of Common Stock (or securities convertible into or exchangeable for Common Stock) shall be that number which is equal to the sum product of (i) the number of shares of Common Stock then outstanding as a result of which are to be issued by the conversion Company in the transaction which is the subject of this NoteSection 3.5, and times (ii) a fraction, the numerator of which is the number of outstanding shares of Common Stock into which this Note could be convertedheld by such Lender, and the denominator of which is equal to the sum of (x) the aggregate number of outstanding shares of Common Stock then outstanding, calculated on a fully diluted basis. (yb) The Company will cause to be given to the number of shares of Lenders a written notice setting forth the terms and conditions upon which the Lenders may purchase such Common Stock into which this Note could be converted, and or other securities (z) the number of shares of Common Stock issuable upon conversion or exercise of all outstanding options, warrants and other rights for the purchase of capital stock of the Company, and all outstanding shares of all series of preferred stock (such number of Preemptive Shares being referred to herein as the “Common Stock Preemptive Shares”"PREEMPTIVE NOTICE"). The Holder may acquire that portion of After receiving a Preemptive Notice, the Common Stock Preemptive Shares being offered equal to its percentage ownership of Lenders must reply, in writing, before the outstanding Common Stock immediately preceding the issuance of date specified in the Preemptive Shares. If any transaction specified by the Maker in any such notice Notice, which shall not be consummated within one hundred twenty (120) a date no earlier than 15 days from after the date of such noticePreemptive Notice, the Corporation shall again comply with the provisions that such persons agree to purchase all of such Lender's allotted portion of such Common Stock or other securities offered pursuant to this Section 3.5 on the date of sale (the "PREEMPTIVE REPLY"). If any Lender fails to make a Preemptive Reply in accordance with respect this Section 3.5(b), the Common Stock or other securities offered to such transactionLender in accordance with this Section 3.5 may thereafter, and for a period not exceeding six months following the Holder shall expiration of such 15-day period, be issued, sold or subjected to rights or options at a price not less than that at which they were offered to the Lender. Any such Common Stock or other securities not so issued, sold or subjected to rights or options during such six-month period will thereafter again have be subject to the preemptive rights hereunder with respect to the transaction, regardless of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant to the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of the transaction proposed by the Makerprovided for in this Section 3.5. (c) The restrictions contained in, and preemptive rights granted under, this For purposes of Section 3.5 hereof, the term "EXEMPTED ISSUANCE" shall not apply to: mean the issuance by the Company of any equity security (including, without limitation, any option, call, warrant or conversion right): (i) upon the conversion or exercise of any securities of the Company or any options, warrants or convertible securities issued by the Company outstanding on the Closing Date, (ii) as a dividend paid on the outstanding Common Stock or Preferred Stock by issuance of shares of the same class or series of Common Stock issued upon conversion or Preferred Stock as the class or series of this Note; Common Stock or Preferred Stock to which such dividend relates, (iiiii) shares in consideration, whether in whole or in part, for the extension of capital stock any credit or the making of any loan to the Company or the issuance by the Company of any debt security to any Person who is not a Lender (or an Affiliate of a Lender), (iv) in connection with any merger, consolidation, recapitalization or other business combination which has been approved by the board of directors of the Maker issued Company, (v) to any officer, director or employee of the Company as compensation, (vi) in any transaction in respect of a security that is available to all holders of such security on a pro rata basis or (vii) in a public offering occurring after the date hereof that results in aggregate gross proceeds pursuant to a registration statement filed pursuant to the Maker of at least Fifty Million Dollars ($50,000,000); or (iii) shares of Common Stock issued upon the exercise or conversion of outstanding options, warrants or other Common Stock equivalents in existence on the Issuance Date. The rights granted to the Holder under this Section 3.5 may be waived with respect to any Preemptive Shares by a written waiver executed by the HolderSecurities Act.

Preemptive Rights. (i) Prior to a Qualified Public Offering, and except for issuances of Common Stock (or options to acquire Common Stock) (a) Except to employees of the Company or any Subsidiary on terms which have been approved (or are issued pursuant to an employee plan that has been approved) by the Company's Board of Directors, (b) upon the conversion of the Series A, B. C or D Preferred or the exercise of the Warrant, (c) in connection with the acquisition of another company or business as set forth permitted under subparagraph 3D(viii), (d) pursuant to a public offering registered under the Securities Act, and (e) pursuant to options and rights to acquire Common Stock that are described on the Capitalization Schedule attached hereto, if the Company authorizes the issuance or sale of any equity securities or any options or rights (or securities containing options or rights) to acquire any equity securities (other than as a dividend on the outstanding Common Stock payable solely in Section 3.5(cshares of Common Stock), the Maker Company shall not issue or first offer to sell to Purchaser (so long as Purchaser owns any Underlying Common Stock and each holder of at least 200,000 shares of Underlying Common Stock or other securities(as adjusted to account for stock splits, or any rights or options to purchase Common Stock or other securitiesstock dividends, or any debt or combinations of shares convertible into or exchangeable for Common Stock or other securities, whether now or hereafter authorized and whether unissued or in the treasury (collectively, “Preemptive Shares”), unless the Holder shall first have been given the right to acquire, at a price no less favorable than that at which such Preemptive Shares are to be offered to others, similar events) a portion of the Preemptive Shares, as provided in Section 3.5(b). (b) The Maker shall give the Holder prior written notice of any proposed issuance such stock or sale described in Section 3.5(a), including the price at which such securities are to be offered and the time period for the offering, and the Holder shall have thirty (30) days from the giving of such notice within which to elect to acquire that number of the Preemptive Shares equal to the product of the total number of Preemptive Shares being offered and a fraction, quotient determined as of the time immediately prior to the issuance of the Preemptive Shares, the numerator of which is equal to the sum of by dividing (i1) the number of shares of Underlying Common Stock then outstanding as a result of the conversion of this Note, and held by such holder by (ii2) the number of shares of Common Stock into which this Note could be converted, and the denominator of which is equal to the sum of (x) the number of shares of Underlying Common Stock then outstanding, in existence and (y) the number of shares of Common Stock into which this Note could be converted, and (z) the number of shares of Common Stock then outstanding or issuable upon the outstanding rights, warrants, options or convertible securities which are fully exercisable at such time at an exercise or conversion or exercise of all outstanding options, warrants and other rights for price which does not exceed the purchase of capital stock of the Company, and all outstanding shares of all series of preferred stock (such number of Preemptive Shares being referred to herein as the “Common Stock Preemptive Shares”). The Holder may acquire that portion fair market value of the Common Stock Preemptive Shares being issuable thereupon as determined in good faith by the Company's Board of Directors, and which are not shares of Underlying Common Stock. Each such holder of Underlying Common Stock shall be entitled to purchase such stock or securities at the most favorable price and on the most favorable terms that such stock or securities are to be offered equal to its percentage ownership any other Persons. The purchase price for all stock and securities offered to the holders of the outstanding Underlying Common Stock immediately preceding the issuance of the Preemptive Shares. If any transaction specified by the Maker in any such notice shall not be consummated within one hundred twenty (120) days from the date of such notice, the Corporation shall again comply with the provisions of this Section 3.5 with respect to such transaction, and the Holder shall again have preemptive rights hereunder with respect to the transaction, regardless of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant to the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of the transaction proposed by the Makerpayable in cash (or such other terms as are offered to other Persons). (c) The restrictions contained in, and preemptive rights granted under, this Section 3.5 shall not apply to: (i) shares of Common Stock issued upon conversion of this Note; (ii) shares In order to exercise its purchase rights hereunder, a holder of capital Underlying Common Stock must, within 15 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 written notice to the Company describing its election hereunder. If all of the Maker issued in a public offering occurring after the date hereof that results in aggregate gross proceeds stock and securities offered to the Maker holders of at least Fifty Million Dollars ($50,000,000); orUnderlying Common Stock is not fully subscribed by such holders, the remaining stock and securities offered to such holders shall be reoffered by the Company to the holders purchasing their full allotment upon the terms set forth in this paragraph, except that such holders must exercise their purchase rights within five days after receipt of much reoffer. (iii) shares Upon the expiration of the offering periods described above, the Company shall be entitled to sell such stock or securities which the holders of Underlying Common Stock issued upon have not elected to purchase or which the exercise Company was not obligated to offer to such holders during the 60 days following such expiration on terms and conditions no more favorable to the purchasers thereof than those offered to such holders. Any stock or conversion securities offered or sold by the Company after such 60-day period must be reoffered to the holders of outstanding options, warrants or other Underlying Common Stock equivalents in existence on the Issuance Date. The rights granted described above pursuant to the Holder under terms of this Section 3.5 may be waived with respect to any Preemptive Shares by a written waiver executed by the Holderparagraph.

Preemptive Rights. (a) Except as set forth in Section 3.5(c), the Maker shall not issue or sell If at any shares of Common Stock or other securities, or any rights or options to purchase Common Stock or other securities, or any debt or shares convertible into or exchangeable for Common Stock or other securities, whether now or hereafter authorized time that Liberty and whether unissued or in the treasury its Affiliates own at least One Million Four Hundred Thousand (collectively, “Preemptive Shares”), unless the Holder shall first have been given the right to acquire, at a price no less favorable than that at which such Preemptive Shares are to be offered to others, a portion 1,400,000) of the Preemptive SharesPurchased Shares (as adjusted from time to time to account for any stock dividend, stock split or reverse stock split) Emmis issues any New Securities except as provided in Section 3.5(b). Subsection (bc) The Maker below, Liberty and any Permitted Assignee shall give each have the Holder prior written notice right, but not the obligation, to purchase such New Securities up to an amount sufficient to permit it to maintain its percentage common equity interest in Emmis (based on the Number of any proposed issuance or sale described in Section 3.5(a), including the price at which such securities are to be offered and the time period for the offering, and the Holder shall have thirty (30) days from the giving of such notice within which to elect to acquire that number of the Preemptive Common Shares equal to the product of the total number of Preemptive Shares being offered and a fraction, determined as of the time Outstanding existing immediately prior to the issuance of the Preemptive Shares, the numerator New Securities). The "Number of which is equal to Common Shares Outstanding" as of any time means the sum of (i) the number of shares of Common Stock Emmis common stock which then outstanding as a result of the conversion of this Noteare actually issued and outstanding, and plus (ii) the total number of additional shares of Common Stock into common stock which this Note could would then be convertedissued and outstanding if it were assumed that all outstanding Qualifying Rights, if any, were then duly exercised in full (whether or not then exercisable). If Emmis desires to issue New Securities, it will first give written notice (an "Issuance Notice") thereof to Liberty and the denominator of which is equal to the sum of (x) each Permitted Assignee stating the number of shares of Common Stock then outstandingNew Securities proposed to be issued, (y) the number of shares of Common Stock into which this Note could total consideration to be converted, and (z) the number of shares of Common Stock issuable received by Emmis upon conversion or exercise of all outstanding options, warrants and other rights for the purchase of capital stock sale of the Company, New Securities and all outstanding shares of all series of preferred stock (such number of Preemptive Shares being referred to herein as the “Common Stock Preemptive Shares”). The Holder may acquire that portion any other material terms of the Common Stock Preemptive Shares being offered equal to its percentage ownership of the outstanding Common Stock immediately preceding the issuance of the Preemptive Sharestransaction. If any transaction specified by the Maker in any such notice shall not be consummated within one hundred twenty Within three (1203) days from after the date receipt of such notice, the Corporation shall again comply with the provisions of this Section 3.5 with respect to such transaction, Liberty and the Holder shall again have preemptive each Permitted Assignee may exercise its rights hereunder with respect to the transaction, regardless of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant to the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of the transaction proposed by the Maker. (c) The restrictions contained in, and preemptive rights granted under, this Section 3.5 shall not apply to: (i) shares of Common Stock issued upon conversion of this Note; (ii) shares of capital stock of the Maker issued in a public offering occurring after the date hereof that results in aggregate gross proceeds to the Maker of at least Fifty Million Dollars ($50,000,000); or (iii) shares of Common Stock issued upon the exercise or conversion of outstanding options, warrants or other Common Stock equivalents in existence on the Issuance Date. The rights granted to the Holder under this Section 3.5 may be waived with respect 8.03 by giving written notice to any Preemptive Shares that effect to Emmis. Failure to give such notice within that three (3) days period will constitute a waiver of the rights granted by a written waiver executed by this Section 8.03 as to the Holderparticular issuance of New Securities specified in the Issuance Notice.

Preemptive Rights. 9.1 Until the first to occur of (a) Except as set forth in Section 3.5(c)the Investor no longer owning the Minimum Stock Amount or (b) the consummation of a Qualifying Public Offering, if at any time after the date of this Agreement, the Maker shall not Company issues or proposes to issue or sell any equity securities, other than (a) the securities whose issuance is contemplated by this Agreement; (b) up to an aggregate of 490,730 shares of Common Stock or other securities, or any rights or issuable upon exercise of options granted under the ESOP; (c) up to purchase Common Stock or other securities, or any debt or shares convertible into or exchangeable for Common Stock or other securities, whether now or hereafter authorized and whether unissued or in the treasury (collectively, “Preemptive Shares”), unless the Holder shall first have been given the right to acquire, at a price no less favorable than that at which such Preemptive Shares are to be offered to others, a portion an aggregate of the Preemptive Shares, as provided in Section 3.5(b). (b) The Maker shall give the Holder prior written notice of any proposed issuance or sale described in Section 3.5(a), including the price at which such securities are to be offered and the time period for the offering, and the Holder shall have thirty (30) days from the giving of such notice within which to elect to acquire that number of the Preemptive Shares equal to the product of the total number of Preemptive Shares being offered and a fraction, determined as of the time immediately prior to the issuance of the Preemptive Shares, the numerator of which is equal to the sum of (i) the number of 123,700 shares of Common Stock then outstanding as a result issuable upon exercise of the conversion Xxxxxx Options, an aggregate of this Note, and (ii) the number of 144,438 shares of Common Stock into issuable upon exercise of the Deferral Options, an aggregate of 89,713 shares of Common Stock issuable upon exercise of the Xxxxxx Options, an aggregate of 100,000 shares of Common Stock issuable upon exercise of the Meridian Options; and (d) shares of Common Stock issued upon the exercise, exchange or conversion of any security as to which the Investor had an opportunity to exercise its rights under this Note could Section 9 (an "Issuance"), the Investor shall have the right to purchase up to its Proportionate Percentage (as defined below) of the type of securities issued or proposed to be converted, issued in such Issuance on the same price and terms as the denominator of which is Issuance (to the extent such price and terms are cash prices and terms). The Investor's "Proportionate Percentage" shall be that percentage equal to the sum of ratio which (x) the number of shares of outstanding Common Stock then outstanding, owned by the Investor bears to (y) the aggregate number of shares of outstanding Common Stock into which this Note could be converted, then owned by all shareholders of the Company. For purposes solely of the computation required under clauses (x) and (zy) above, the number Investor holding Preferred Stock shall be treated as having converted all of its Preferred Stock into shares of Common Stock issuable upon conversion or exercise at the rate at which such Preferred Stock is convertible at the time of delivery by the Company of the Option Notice (as defined in Section 9.2), assuming that all outstanding optionsPreferred Stock held by other Holders of Preferred Stock shall likewise be deemed converted. 9.2 In the event of an Issuance, warrants the Company shall deliver to the Investor a written notice describing such Issuance, specifying the Investor's pro rata share and stating the purchase price and other rights for terms of such Issuance (the purchase "Option Notice"). For a period of capital stock 45 days from the receipt of the Option Notice, the Investor shall have the right to elect, by written notice to the Company, and to purchase all outstanding shares of all series of preferred stock (such number of Preemptive Shares being referred to herein as the “Common Stock Preemptive Shares”). The Holder may acquire that or any portion of the Common Stock Preemptive Shares being offered equal to its percentage ownership of the outstanding Common Stock immediately preceding the issuance of the Preemptive Shares. If any transaction specified by the Maker in any such notice shall not be consummated within one hundred twenty (120) days from the date pro rata share of such notice, the Corporation shall again comply with the provisions of this Section 3.5 with respect to such transaction, and the Holder shall again have preemptive rights hereunder with respect to the transaction, regardless of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant to the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of the transaction proposed by the Makersecurities. (c) The restrictions contained in, and preemptive rights granted under, this Section 3.5 shall not apply to: (i) shares of Common Stock issued upon conversion of this Note; (ii) shares of capital stock of the Maker issued in a public offering occurring after the date hereof that results in aggregate gross proceeds to the Maker of at least Fifty Million Dollars ($50,000,000); or (iii) shares of Common Stock issued upon the exercise or conversion of outstanding options, warrants or other Common Stock equivalents in existence on the Issuance Date. The rights granted to the Holder under this Section 3.5 may be waived with respect to any Preemptive Shares by a written waiver executed by the Holder.

Preemptive Rights. (a) Except as set forth in Section 3.5(c), the Maker shall not issue or sell If at any shares of Common Stock or other securities, or any rights or options to purchase Common Stock or other securities, or any debt or shares convertible into or exchangeable for Common Stock or other securities, whether now or hereafter authorized time that Liberty and whether unissued or in the treasury its ----------------- Affiliates own at least One Million Four Hundred Thousand (collectively, “Preemptive Shares”), unless the Holder shall first have been given the right to acquire, at a price no less favorable than that at which such Preemptive Shares are to be offered to others, a portion 1,400,000) of the Preemptive SharesPurchased Shares (as adjusted from time to time to account for any stock dividend, stock split or reverse stock split) Emmis issues any New Securities except as provided in Section 3.5(b). Subsection (bc) The Maker below, Liberty and any Permitted Assignee shall give each have the Holder prior written notice right, but not the obligation, to purchase such New Securities up to an amount sufficient to permit it to maintain its percentage common equity interest in Emmis (based on the Number of any proposed issuance or sale described in Section 3.5(a), including the price at which such securities are to be offered and the time period for the offering, and the Holder shall have thirty (30) days from the giving of such notice within which to elect to acquire that number of the Preemptive Common Shares equal to the product of the total number of Preemptive Shares being offered and a fraction, determined as of the time Outstanding existing immediately prior to the issuance of the Preemptive Shares, the numerator New Securities). The "Number of which is equal to Common Shares Outstanding" as of any time means the sum of (i) the number of shares of Common Stock Emmis common stock which then outstanding as a result of the conversion of this Noteare actually issued and outstanding, and plus (ii) the total number of additional shares of Common Stock into common stock which this Note could would then be convertedissued and outstanding if it were assumed that all outstanding Qualifying Rights, if any, were then duly exercised in full (whether or not then exercisable). If Emmis desires to issue New Securities, it will first give written notice (an "Issuance Notice") thereof to Liberty and the denominator of which is equal to the sum of (x) each Permitted Assignee stating the number of shares of Common Stock then outstandingNew Securities proposed to be issued, (y) the number of shares of Common Stock into which this Note could total consideration to be converted, and (z) the number of shares of Common Stock issuable received by Emmis upon conversion or exercise of all outstanding options, warrants and other rights for the purchase of capital stock sale of the Company, New Securities and all outstanding shares of all series of preferred stock (such number of Preemptive Shares being referred to herein as the “Common Stock Preemptive Shares”). The Holder may acquire that portion any other material terms of the Common Stock Preemptive Shares being offered equal to its percentage ownership of the outstanding Common Stock immediately preceding the issuance of the Preemptive Sharestransaction. If any transaction specified by the Maker in any such notice shall not be consummated within one hundred twenty Within three (1203) days from after the date receipt of such notice, the Corporation shall again comply with the provisions of this Section 3.5 with respect to such transaction, Liberty and the Holder shall again have preemptive each Permitted Assignee may exercise its rights hereunder with respect to the transaction, regardless of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant to the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of the transaction proposed by the Maker. (c) The restrictions contained in, and preemptive rights granted under, this Section 3.5 shall not apply to: (i) shares of Common Stock issued upon conversion of this Note; (ii) shares of capital stock of the Maker issued in a public offering occurring after the date hereof that results in aggregate gross proceeds to the Maker of at least Fifty Million Dollars ($50,000,000); or (iii) shares of Common Stock issued upon the exercise or conversion of outstanding options, warrants or other Common Stock equivalents in existence on the Issuance Date. The rights granted to the Holder under this Section 3.5 may be waived with respect 8.03 by giving written notice to any Preemptive Shares that effect to Emmis. Failure to give such notice within that three (3) days period will constitute a waiver of the rights granted by a written waiver executed by this Section 8.03 as to the Holderparticular issuance of New Securities specified in the Issuance Notice.

Preemptive Rights. (a) Except The Company hereby grants to each Purchaser the preemptive rights to purchase such Purchaser's Proportionate Interest (as set forth defined below) in Section 3.5(c)any issuance or sale of New Securities which the Company may, the Maker shall not from time to time, propose to issue or sell at a price per share of (i) less than $6.62 (subject to appropriate adjustment in the event of any increase or decrease in the number of outstanding shares of Common Stock by virtue of any stock split, stock dividend, reverse stock split, reclassification or other securities, or any rights or options to purchase combination) in the case of Common Stock or other securities(ii) having a conversion price or option or warrant exercise price of less than $6.62 (subject to appropriate adjustment in the event of any increase or decrease in the number of outstanding shares of Common Stock by virtue of any stock split, stock dividends, reverse stock split, reclassification or any debt combination) in the case of securities convertible into or shares exercisable for, Common Stock. For purposes of this Section 11.1, a Purchaser's Proportionate Interest in such an issuance or sale shall mean that portion of such issuance or sale which, if purchased by such Purchaser under this Section 11.1, would allow such Purchaser to own the same percentage of the issued and outstanding Common Stock of the Company after giving effect to such issuance or sale as such Purchaser owned immediately prior to such issuance or sale (calculated on a fully-diluted basis as if all outstanding warrants, options, rights and securities convertible into or exchangeable for Common Stock or other had been exercised in full, but without regard to the adjustment provisions of any outstanding securities, whether now or hereafter authorized and whether unissued or in the treasury (collectively, “Preemptive Shares”), unless the Holder shall first have been given the right to acquire, at a price no less favorable than that at which such Preemptive Shares are to be offered to others, a portion of the Preemptive Shares, as provided in Section 3.5(b). (b) The Maker value of any non-cash "consideration" shall be determined in good faith by the Board of Directors of the Company. (c) In the event the Company proposes to undertake an issuance or sale of New Securities for consideration of less than $6.62 per share as described in clause (a) above, the Company shall give the Holder prior Purchasers written notice of any proposed issuance or sale described in Section 3.5(a)the Company's intention, including describing the price at which such securities are type of New Securities, the price, the maximum amount to be offered issued or sold and the time period for general terms upon which the offering, and Company proposes to issue or sell the Holder same. Each Purchaser shall have thirty (30) days from the giving date of such notice within which to elect to acquire that number of the Preemptive Shares equal agree (by written notice to the product of the total number of Preemptive Shares being offered Company) to purchase its Proportionate Interest in such issuance or sale upon such price and a fraction, determined as of the time immediately prior terms. (d) The preemptive rights hereunder shall not apply to the issuance of the Preemptive Shares, the numerator of which is equal to the sum of (i) the number of shares of Common Stock then outstanding as a result of the conversion of this Note, and (ii) the number of shares of Common Stock into which this Note could be converted, and the denominator of which is equal to the sum of (x) the number of shares of Common Stock then outstanding, (y) the number of shares of Common Stock into which this Note could be converted, and (z) the number of shares of Common Stock issuable upon conversion or exercise of all outstanding options, warrants and other rights for the purchase of capital stock of the Company, and all outstanding shares of all series of preferred stock (such number of Preemptive Shares being referred to herein as the “Common Stock Preemptive Shares”). The Holder may acquire that portion any public offering of the Common Stock Preemptive Shares being offered equal to its percentage ownership or securities convertible into or exchangeable for Common Stock of the outstanding Common Stock immediately preceding Company pursuant to a registration statement filed under the issuance Securities Act with the Securities and Exchange Commission which is declared effective by the Securities and Exchange Commission. (e) During the period of 60 days after the expiration of the Preemptive Shares. If any notice period to which the Purchasers are entitled hereunder, the Company shall be permitted to sell or enter into an agreement (pursuant to which the sale or other transaction specified by the Maker in any such notice shall not be consummated closed, if at all, within one hundred twenty (120) 60 days from the date of such noticesaid agreement) to sell the New Securities at a price and upon general terms no more favorable to the purchasers thereof than specified in the Company's notice to the Purchasers under clause (c) above. (f) The preemptive rights described in this section 11.1 are personal to the Purchasers and may not be assigned or transferred, the Corporation shall again comply with the provisions whether by agreement or by operation of this Section 3.5 with respect to such transactionlaw or otherwise, and any attempted transfer shall be void. (g) Upon the Holder shall again have sale or transfer to any person of New Securities as to which the preemptive rights hereunder with respect to shall not have been exercised, such New Securities shall thereafter be transferable free of the transaction, regardless of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant to the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of the transaction proposed by the Makerprovided hereunder. (ch) The restrictions contained in, and preemptive rights granted under, this Section 3.5 hereunder shall not apply to: (i) shares of Common Stock issued terminate upon conversion of this Note; (ii) shares of capital stock of the Maker issued in a public offering occurring after the date hereof that results in aggregate gross proceeds on which a registration statement relating to the Maker of at least Fifty Million Dollars ($50,000,000); or (iii) shares of Common Stock issued upon the exercise or conversion of outstanding options, warrants or other Common Stock equivalents in existence on the Issuance Date. The rights granted to the Holder under this Section 3.5 may be waived with respect to any Preemptive Shares by a written waiver executed an Initial Public Offering is declared effective by the HolderSecurities and Exchange Commission.

Preemptive Rights. (a) Except If the Company proposes to issue and sell, other than in an Exempted Issuance (as set forth in Section 3.5(cdefined below), the Maker shall not issue any of its shares of Common Stock or sell any securities containing options or rights to acquire any shares of Common Stock or other securities, or any rights or options to purchase securities convertible into shares of Common Stock (such shares and other securities are hereinafter collectively referred to as "Newly Issued Stock") (hereinafter, a "Preemptive Issuance"), the Company will first offer to each Major Shareholder (and its Affiliates who are also Investors) and each Management Investor who was a Management Investor at the Effective Time who is an "accredited investor" as defined in Rule 501(a) promulgated under the Securities Act of 1933, as amended (each a "Qualified Investor") a portion of the number or other securities, amount of such securities proposed to be sold in any such transaction or any debt series of related transactions equal to such Qualified Investor's pro rata share of the proposed issue of Common Stock (or shares securities convertible into or exchangeable for Common Stock or other securities, whether now or hereafter authorized and whether unissued or in the treasury (collectively, “Preemptive Shares”Stock), unless all for the Holder shall first have been given same price and on the right to acquire, at a price no less favorable than that same terms at which such Preemptive Shares are to be offered to others, a portion of the Preemptive Shares, as provided in Section 3.5(b). (b) The Maker shall give the Holder prior written notice of any proposed issuance or sale described in Section 3.5(a), including the price at which such securities are to be offered and the time period for the offering, and the Holder shall have thirty (30) days from the giving of such notice within which to elect to acquire that number of the Preemptive Shares equal to the product of the total number of Preemptive Shares being offered and a fraction, determined as of the time immediately prior to Company has authorized the issuance of the Preemptive Sharessuch securities. For purposes of this Section 8.1, the numerator a Qualified Investor's "pro rata share" of an issue of Common Stock (or securities convertible into or exchangeable for Common Stock) shall be that number which is equal to the sum product of (i) the number of shares of Common Stock then outstanding as a result of which are to be issued by the conversion Company in the transaction which is the subject of this NoteSection 8.1, and times (ii) a fraction, the numerator of which is the number of outstanding shares of Common Stock into which this Note could be convertedheld by such Qualified Investor, and the denominator of which is equal to the sum of (x) the aggregate number of outstanding shares of Common Stock then outstanding, calculated on a fully diluted basis. (yb) The Company will cause to be given to the number of shares of Qualified Investors a written notice setting forth the terms and conditions upon which the Qualified Investors may purchase such Common Stock into which this Note could be converted, and or other securities (z) the number of shares of Common Stock issuable upon conversion or exercise of all outstanding options, warrants and other rights for the purchase of capital stock of the Company, and all outstanding shares of all series of preferred stock (such number of "Preemptive Shares being referred to herein as the “Common Stock Preemptive Shares”Notice"). The Holder may acquire that portion of After receiving a Preemptive Notice, the Common Stock Preemptive Shares being offered equal to its percentage ownership of Qualified Investors must reply, in writing, before the outstanding Common Stock immediately preceding the issuance of date specified in the Preemptive Shares. If any transaction specified by the Maker in any such notice Notice, which shall not be consummated within one hundred twenty (120) a date no earlier than 15 days from after the date of such noticePreemptive Notice, that such persons agree to purchase all of such Qualified Investors' allotted portion of such Common Stock or other securities offered pursuant to this Section 8.1 on the date of sale (the "Preemptive Reply"). If any Qualified Investor fails to make a Preemptive Reply in accordance with this Section 8.1, the Corporation shall again comply Common Stock or other securities offered to such Qualified Investor in accordance with the provisions of this Section 3.5 with respect 8.1 may thereafter, for a period not exceeding six months following the expiration of such 15-day period, be issued, sold or subjected to rights or options at a price not less than that at which they were offered to the Qualified Investors. Any such transactionCommon Stock or other securities not so issued, and sold or subjected to rights or options during such six-month period will thereafter again be subject to the Holder shall again have preemptive rights hereunder with respect to the transaction, regardless of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant to the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of the transaction proposed by the Maker. (c) The restrictions contained in, and preemptive rights granted under, provided for in this Section 3.5 shall not apply to:8.1. (i) shares of Common Stock issued upon conversion Notwithstanding the requirements of this Note; Section 8.1, the Company may make a Preemptive Issuance at any time without complying with the requirements of Section 8.1(a) and (iib) shares so long as the Company deposits into escrow with an independent third party at the time of capital stock sale a portion of the Maker issued in a public offering occurring after the date hereof that results in aggregate gross proceeds Newly Issued Stock equal to the Maker "Preemptive Escrow Amount." The "Preemptive Escrow Amount" shall equal that amount of at least Fifty Million Dollars ($50,000,000Newly Issued Stock which the Qualified Investors would have been entitled to purchase if they had the opportunity to participate in the Preemptive Issuance on a pro rata basis in accordance with Section 8.1(a); or (iii) shares of Common Stock issued upon the exercise or conversion of outstanding options, warrants or other Common Stock equivalents in existence on the Issuance Date. The rights granted determined as if each Qualified Investor delivered a Preemptive Reply to the Holder under this Company in the time period set forth in Section 3.5 may be waived with respect 8.1(b) agreeing to any purchase all of the Newly Issued Stock to which such Qualified Investor would have been entitled to purchase pursuant to Section 6.1(a) had the Company given such Qualified Investor a Preemptive Shares by a written waiver executed by the HolderNotice.

Preemptive Rights. Subject to the terms and conditions specified in this Section 3.2 and for so long as the Investor or its assignees hold shares representing at least twenty percent (a20%) Except as set forth in Section 3.5(c), the Maker shall not issue or sell any of all issued and outstanding shares of Common Stock (i.e., excluding options, warrants or other securities, or any rights or options to purchase Common Stock or other securities, or any debt or shares securities convertible into or exchangeable exchanged for shares of Common Stock or other securities, whether now or hereafter authorized and whether unissued or in the treasury (collectively, “Preemptive Shares”Stock), unless the Holder Company hereby grants to the Investor a preemptive right to subscribe for future sales by the Company of its Additional Stock (as hereinafter defined). Each time the Company proposes to offer any shares of, or securities convertible into or exercisable for any shares of, any class of its capital stock ("Additional Stock"), other than (i) any of the options remaining ungranted pursuant to the Option Plan, (ii) the exercise of any options granted under the Option Plan, or (iii) any offering of securities pursuant to an effective registration under the Act, the Company shall first have been given make an offering of such Additional Stock to the right Investor in accordance with the following provisions: (a) The Company shall deliver a notice by certified mail ("Notice") to acquirethe Investor stating (i) its bona fide intention to offer such Additional Stock, at a price no less favorable than that at which (ii) the number of such Preemptive Shares are shares of Additional Stock to be offered offered, and (iii) the price and terms, if any, upon which it proposes to others, a portion of the Preemptive Shares, as provided in Section 3.5(b)offer such Additional Stock. (b) The Maker shall give Within 20 calendar days after receipt of the Holder prior written notice of any proposed issuance Notice, the Investor may elect to purchase or sale described in Section 3.5(a)obtain, including at the price at which such securities are and on the terms specified in the Notice, up to be offered and the time period for the offering, and the Holder shall have thirty (30) days from the giving that portion of such notice within Additional Stock which to elect to acquire equals the proportion that number of the Preemptive Shares equal to the product of the total number of Preemptive Shares being offered and a fraction, determined as of the time immediately prior to the issuance of the Preemptive Shares, the numerator of which is equal to the sum of (i) the number of shares of Common Stock issued and held, or issuable upon conversion or exercise of any other security then outstanding as a result of held by the conversion of this Note, and (ii) Investor bears to the total number of shares of Common Stock into which this Note could be converted, of the Company then outstanding (assuming full conversion and the denominator of which is equal to the sum of (x) the number of shares of Common Stock then outstanding, (y) the number of shares of Common Stock into which this Note could be converted, and (z) the number of shares of Common Stock issuable upon conversion or exercise of all outstanding optionsconvertible or exercisable securities). (c) If all Additional Stock which the Investor is entitled to obtain pursuant to subsection 3.2(b) is not elected to be obtained as provided in subsection 3.2(b) hereof, warrants the Company may, during the 30-day period following the expiration of the period provided in subsection 3.2(b) hereof, offer the remaining unsubscribed portion of such Additional Stock to any Person or Persons at a price not less than, and other rights upon terms no more favorable to the offeree than those specified in the Notice. If the Company does not enter into an agreement for the purchase sale of the Additional Stock within such period, or if such agreement is not consummated within 30 days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Additional Stock shall not be offered unless first reoffered to the Investor in accordance herewith. (d) The right set forth in this Section 3.2 may be assigned or transferred by the Investor to a transferee or assignee of any of its shares of capital stock of the Company, provided such transferee or assignee agrees in writing to be bound by and all outstanding shares of all series of preferred stock (such number of Preemptive Shares being referred subject to herein as the “Common Stock Preemptive Shares”). The Holder may acquire that portion of the Common Stock Preemptive Shares being offered equal to its percentage ownership of the outstanding Common Stock immediately preceding the issuance of the Preemptive Shares. If any transaction specified by the Maker in any such notice shall not be consummated within one hundred twenty (120) days from the date of such notice, the Corporation shall again comply with the provisions terms and conditions of this Section 3.5 with respect Agreement relating to such transaction, and the Holder shall again have preemptive rights hereunder with respect to the transaction, regardless of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant to the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of the transaction proposed by the Maker. (c) The restrictions contained in, and preemptive rights granted under, this Section 3.5 shall not apply to: (i) shares of Common Stock issued upon conversion of this Note; (ii) shares of capital stock of the Maker issued in a public offering occurring after the date hereof that results in aggregate gross proceeds to the Maker of at least Fifty Million Dollars ($50,000,000); or (iii) shares of Common Stock issued upon the exercise or conversion of outstanding options, warrants or other Common Stock equivalents in existence on the Issuance Date. The rights granted to the Holder under this Section 3.5 may be waived with respect to any Preemptive Shares by a written waiver executed by the Holder3.2.

Preemptive Rights. (a) Except So long as set forth in Section 3.5(c)this Debenture is outstanding and owned by the Holder, the Maker Holder shall not issue or sell have a preemptive right (that is, a right to purchase its pro rata share of all capital stock of the Company on a fully diluted basis assuming the exercise of this Debenture and of all other outstanding options and warrants to purchase capital stock of the Company, based on its holdings at that date, on the same terms and conditions as those upon which such capital stock is proposed to be sold) to acquire any shares of Common Stock or other securitiescapital stock of the Company, including unissued shares or any rights or options to purchase Common Stock or other securitiessuch capital stock, or any debt or shares securities convertible into or exchangeable for Common Stock or other securities, whether now or hereafter authorized and whether unissued or in the treasury such capital stock (collectively, “Preemptive Shares”"Capital Stock"), unless authorized by the Holder shall first have been given the right to acquire, at a price no less favorable than that at which such Preemptive Shares are to be offered to others, a portion Board of Directors of the Preemptive SharesCompany for issuance after the date hereof; provided, as provided however, that the foregoing provision shall not apply to any such Capital Stock of the Company: (i) issued to effect any merger, consolidation, recapitalization, or acquisition of assets or acquisition of another corporation or other entity; or (ii) issued upon the exercise of warrants or options held by officers, directors or other employees of the Company or warrants issued to Senior Lenders. In connection with the exercise of options granted pursuant to the Company's employee stock option plans or in Section 3.5(b). (b) The Maker shall give connection with the Holder prior written notice exercise of any proposed issuance or sale described in Section 3.5(a)warrants issued to the Senior Lenders, including the price at which such securities are to be offered and the time period for the offering, and the Holder shall have thirty (30) days the option at any time or from time to time during the giving term of such notice within which this Debenture to elect purchase Shares at a price of $10 per share in order to acquire that number maintain its percentage holdings of the Preemptive Shares equal to the product capital stock of the total number of Preemptive Shares being offered and Company on the date hereof on a fraction, determined as of fully-diluted basis assuming the time immediately prior to the issuance of the Preemptive Shares, the numerator of which is equal to the sum of (i) the number of shares of Common Stock then outstanding as a result of the conversion exercise of this Note, Debenture and (ii) the number of shares of Common Stock into which this Note could be converted, and the denominator of which is equal to the sum of (x) the number of shares of Common Stock then outstanding, (y) the number of shares of Common Stock into which this Note could be converted, and (z) the number of shares of Common Stock issuable upon conversion or exercise of all other outstanding options, options and warrants and other rights for the to purchase of capital stock of the Company, ; provided that the $10 per share purchase price shall be subject to adjustment as provided in Section 2.5 above; and all outstanding shares of all series of preferred stock (such number of Preemptive Shares being referred to herein as provided further that the “Common Stock Preemptive Shares”). The Holder may acquire that portion determination of the Common Stock Preemptive Shares being offered equal to its Holder's percentage ownership holdings of the outstanding Common Stock immediately preceding the issuance capital stock of the Preemptive Shares. If any transaction specified by Company shall be adjusted downward each time the Maker Holder fails to exercise its preemptive rights as provided in any such notice shall not be consummated within one hundred twenty (120) days from the date of such notice, the Corporation shall again comply with the provisions of this Section 3.5 with respect to such transaction, 4.9 and the Holder shall again have preemptive rights hereunder with respect to the transaction, regardless of whether each time any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant to the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of the transaction proposed by the Maker. (c) The restrictions contained in, and preemptive rights granted under, this Section 3.5 shall not apply to: (i) shares of Common Stock issued upon conversion of this Note; (ii) shares of capital stock of the Maker are issued as described in a public offering occurring after the date hereof that results in aggregate gross proceeds to the Maker of at least Fifty Million Dollars clause ($50,000,000); or (iiii) shares of Common Stock issued upon the exercise or conversion of outstanding options, warrants or other Common Stock equivalents in existence on the Issuance Date. The rights granted to the Holder under this Section 3.5 may be waived with respect to any Preemptive Shares by a written waiver executed by the Holderabove.

Preemptive Rights. (a) Except In the event of any offering of New Securities (as set forth in Section 3.5(c)defined below) by the Company, each Investor, for so long as the Notes, the Maker Warrants or any Note Shares or Warrant Shares remain outstanding, shall have the right to purchase a percentage of the New Securities being offered that is equal to the percentage of the outstanding Common Stock of the Company owned by such Investor on an as-converted basis (treating for this purpose as outstanding all shares of Common Stock issuable upon the full exercise of the Warrants and full conversion of the Notes then outstanding, including conversion of the maximum amount of Interest scheduled to accrue during the First Five Year Note Period (as defined in the Notes)); provided, however, that this right shall not apply to (i) equity compensation grants to employees, consultants, or directors pursuant to plans or other arrangements approved by the Board of Directors of the Company, (ii) securities issued upon the conversion or exercise of any convertible or exercisable securities that are outstanding as of the date hereof on the terms in effect on such date, (iii) the issuance of securities in connection with any underwritten public offering (excluding, for the avoidance of doubt, registered direct offerings); (iv) securities issued upon any split, dividend, combination or other similar event with respect to the capital stock of the Company; (v) securities subsequently issued upon conversion, exercise or exchange of those securities that have been issued in compliance with, or on issuance were exempt from the preemptive rights provided for in this Section 5.4, and (vi) shares of Common Stock or convertible securities issued or issuable in connection with mergers, acquisitions, strategic transactions and debt financings approved by the Board of Directors of the Company, including the Investor Designee; provided, further, that in connection with any underwritten public offering, the Company will use reasonable best efforts to allow each Investor to purchase a sufficient amount of such offered securities so as to maintain as closely as possible such Investor’s proportionate interest in the Company on an as-converted basis as described above (disregarding any allocations of such offered securities that may be made by the underwriters to Affiliates of any Investor in the ordinary course investment business of such Affiliates). An Investor shall be deemed to have waived its rights under this Section 5.4 if such Investor shall have not delivered to the Company its written election to purchase such securities within ten (10) Business Days of receipt of the Company’s notice of such offering describing the material terms thereof (such ten (10) Business Day period, the “Offer Period”). If the Investors fail to exercise their purchase right pursuant to this Section 5.4, then the Company shall have the right, until the expiration of one hundred eighty (180) days commencing upon the expiration of the Offer Period, to issue such New Securities to one (1) or sell any more third parties on terms no more favorable to the purchasers thereof than the terms specified in the Company’s notice of such offering to the Investors, after which the terms of this Section 5.4 shall again apply to the Company’s offering of such New Securities. (b) For purposes of this Agreement, the term “New Securities” shall mean securities, contract rights, notes, obligations, options, warrants, or other rights that are directly or indirectly exercisable for, convertible into, or exchangeable for shares of Common Stock or other securities, capital or any rights or options to purchase Common Stock or other securities, or any debt or shares convertible into or exchangeable for Common Stock or other securities, whether now or hereafter authorized and whether unissued or in the treasury (collectively, “Preemptive Shares”), unless the Holder shall first have been given the right to acquire, at a price no less favorable than that at which such Preemptive Shares are to be offered to others, a portion of the Preemptive Shares, as provided in Section 3.5(b). (b) The Maker shall give the Holder prior written notice of any proposed issuance or sale described in Section 3.5(a), including the price at which such securities are to be offered and the time period for the offering, and the Holder shall have thirty (30) days from the giving of such notice within which to elect to acquire that number of the Preemptive Shares equal to the product of the total number of Preemptive Shares being offered and a fraction, determined as of the time immediately prior to the issuance of the Preemptive Shares, the numerator of which is equal to the sum of (i) the number of shares of Common Stock then outstanding as a result of the conversion of this Note, and (ii) the number of shares of Common Stock into which this Note could be converted, and the denominator of which is equal to the sum of (x) the number of shares of Common Stock then outstanding, (y) the number of shares of Common Stock into which this Note could be converted, and (z) the number of shares of Common Stock issuable upon conversion or exercise of all outstanding options, warrants and other rights for the purchase of capital voting stock of the Company, and all outstanding shares of all series of preferred stock (such number of Preemptive Shares being referred to herein as the “Common Stock Preemptive Shares”). The Holder may acquire that portion of the Common Stock Preemptive Shares being offered equal to its percentage ownership of the outstanding Common Stock immediately preceding the issuance of the Preemptive Shares. If any transaction specified by the Maker in any such notice shall not be consummated within one hundred twenty (120) days from the date of such notice, the Corporation shall again comply with the provisions of this Section 3.5 with respect to such transaction, and the Holder shall again have preemptive rights hereunder with respect to the transaction, regardless of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant to the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of the transaction proposed by the Maker. (c) The restrictions contained in, and preemptive rights granted under, this Section 3.5 shall not apply to: (i) shares of Common Stock issued upon conversion of this Note; (ii) shares of capital stock of the Maker issued in a public offering occurring after the date hereof that results in aggregate gross proceeds to the Maker of at least Fifty Million Dollars ($50,000,000); or (iii) shares of Common Stock issued upon the exercise or conversion of outstanding options, warrants or other Common Stock equivalents in existence on the Issuance Date. The rights granted to the Holder under this Section 3.5 may be waived with respect to any Preemptive Shares by a written waiver executed by the Holder.

Preemptive Rights. (a) Except as set forth in Section 3.5(c)If, after the date hereof and prior to the conversion of the Convertible Preferred Stock by Preferred Stock Holders holding a majority of the Convertible Preferred Stock, the Maker Company shall not propose to issue or sell New Securities (as hereinafter defined) or enter into any shares contracts, commitments, agreements, understandings or arrangements of any kind relating to the issuance or sale of any New Securities, each Preferred Stock Holder shall have the right to purchase that number of New Securities at the same price and on the same terms proposed to be issued or sold by the Company so that such holder would after the issuance or sale of all of such New Securities, hold the same proportional interest of the then outstanding Shares (assuming that any securities or other rights convertible or exchangeable into or exercisable for Shares have been converted, exchanged or exercised) as was held by it prior to such issuance and sale (the "Proportionate Percentage"). "New Securities" shall mean any securities or other rights convertible or exchangeable into or exercisable for Shares; provided, however, that "New Securities" does not include: (i) Common Stock issued or issuable on conversion of the Convertible Preferred Stock or upon the exercise of options outstanding on the date hereof; (ii) Shares issued pursuant to any rights or agreements including, without limitation, any security convertible or exchangeable, with or without consideration, into or for any stock, options and warrants, provided that the rights established by this Section 6.1 apply with respect to the initial sale or grant by the Company of such rights or agreements; (iii) securities issued by the Company as part of any public offering pursuant to an effective registration statement under the Securities Act; (iv) Shares issued in connection with any stock split, stock dividend, recapitalization, spin-off, or split-off of the Company; (v) Shares issued to management, directors or employees of, or consultants to, the Company pursuant to plans outstanding as of the date hereof, and options to purchase Shares issued in accordance with such plans or pursuant to other plans approved by the Board and options to purchase Shares issued in accordance with such plans; (vi) securities issued in connection with any merger or acquisition by the Company; and (vii) securities issued in any single transaction in which (A) the purchase price for such securities is less than $1,000,000 and (B) such purchase price per share of Common Stock or other securities, or any rights or options to purchase per Common Stock or other securities, or any debt or shares convertible into or exchangeable for Common Stock or other securities, whether now or hereafter authorized and whether unissued or in Equivalent is not less than the treasury (collectively, “Preemptive Shares”), unless the Holder shall first have been given the right to acquire, at a price no less favorable than that at which such Preemptive Shares are to be offered to others, a portion then applicable Conversion Price per share of the Preemptive Shares, as provided in Section 3.5(b). (b) The Maker shall give the Holder prior written notice of any proposed issuance or sale described in Section 3.5(a), including the price at which such securities are to be offered and the time period for the offering, and the Holder shall have thirty (30) days from the giving of such notice within which to elect to acquire that number of the Preemptive Shares equal to the product of the total number of Preemptive Shares being offered and a fraction, determined as of the time immediately prior to the issuance of the Preemptive Shares, the numerator of which is equal to the sum of (i) the number of shares of Common Stock then outstanding as a result of the conversion of this Note, and (ii) the number of shares of Common Stock into which this Note could be converted, and the denominator of which is equal to the sum of (x) the number of shares of Common Stock then outstanding, (y) the number of shares of Common Stock into which this Note could be converted, and (z) the number of shares of Common Stock issuable upon conversion or exercise of all outstanding options, warrants and other rights for the purchase of capital stock of the Company, and all outstanding shares of all series of preferred stock (such number of Preemptive Shares being referred to herein as the “Common Stock Preemptive Shares”). The Holder may acquire that portion of the Common Stock Preemptive Shares being offered equal to its percentage ownership of the outstanding Common Stock immediately preceding the issuance of the Preemptive Shares. If any transaction specified by the Maker in any such notice shall not be consummated within one hundred twenty (120) days from the date of such notice, the Corporation shall again comply with the provisions of this Section 3.5 with respect to such transaction, and the Holder shall again have preemptive rights hereunder with respect to the transaction, regardless of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant to the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of the transaction proposed by the Maker. (c) The restrictions contained in, and preemptive rights granted under, this Section 3.5 shall not apply to: (i) shares of Common Stock issued upon conversion of this Note; (ii) shares of capital stock of the Maker issued in a public offering occurring after the date hereof that results in aggregate gross proceeds to the Maker of at least Fifty Million Dollars ($50,000,000); or (iii) shares of Common Stock issued upon the exercise or conversion of outstanding options, warrants or other Common Stock equivalents in existence on the Issuance Date. The rights granted to the Holder under this Section 3.5 may be waived with respect to any Preemptive Shares by a written waiver executed by the Holder.the

Preemptive Rights. (a) Except as set forth in Section 3.5(c), for the Maker shall not issue or sell any shares issuance of Common Stock (and/or securities exercisable for or other securitiesconvertible into Common Stock) to Holdings' or its Subsidiaries' directors or employees in their capacity as such, in connection with an Approved Sale, subject to the following sentence, in connection with any merger, consolidation, acquisition of stock, acquisition of assets, business combination or any rights or options similar transaction, pursuant to purchase the initial public offering of Holdings' Common Stock registered under the Securities Act or other securities, upon the conversion or any debt or shares exercise of securities convertible into or exchangeable for containing options or rights to acquire Common Stock or other securitiesStock, whether now or hereafter authorized and whether unissued or in the treasury (collectively, “Preemptive Shares”), unless the Holder Holdings shall first have been given offer to sell to each holder of Bain Shares, each holder of GS Shares and the right to acquire, at a price no less favorable than that at which such Preemptive Shares are to be offered to others, Hoechst Xxxxk Group a portion of the Preemptive Shares, as provided in Section 3.5(b). (b) The Maker shall give the Holder prior written notice of any proposed issuance such stock or sale described in Section 3.5(a), including the price at which such securities are to be offered and the time period for the offering, and the Holder shall have thirty (30) days from the giving of such notice within which to elect to acquire that number of the Preemptive Shares equal to the product of the total number of Preemptive Shares being offered and a fraction, quotient determined as of the time immediately prior to the issuance of the Preemptive Shares, the numerator of which is equal to the sum of by dividing (iA) the number of shares of Common Stock then outstanding as a result held by such holder of Stockholder Shares (including any shares issuable upon exercise of the conversion of this Note, and Warrant if then exercisable) by (iiB) the total number of shares of outstanding Common Stock into which this Note could be converted(including any shares issuable upon exercise of the Warrant if then exercisable). If on or prior to June 30, and the denominator of which is equal 2000, Holdings issues Common Stock in connection with a transaction described in clause (iii) above and, after giving effect to the sum of (x) the number of shares of Common Stock then outstandingtransaction, (y) the number of shares of Common Stock into which this Note could be converted, and (z) the number of shares of Common Stock issuable upon conversion or exercise of all outstanding options, warrants and other rights for the purchase of capital stock of the Company, and all outstanding shares of all series of preferred stock (such number of Preemptive Shares being referred to herein as the “Common Stock Preemptive Shares”). The Holder may acquire that portion of the Common Stock Preemptive Shares being offered equal to its percentage ownership issuance represents more than 50% of the outstanding Common Stock immediately preceding the issuance Stock, Holdings shall offer to sell to each holder identified above a pro rata share (calculated as provided above) of the Preemptive Shares. If any transaction specified by the Maker in any such notice shall not be consummated within one hundred twenty (120) days from the date portion of such noticeissuance that exceeds 50% of the outstanding Common Stock. Each such holder of Stockholder Shares shall be entitled to purchase such stock or securities at the most favorable price and on the most favorable terms as such stock or securities are to be offered to any other Person. The purchase price for all stock and securities offered to each such holder of Stockholder Shares shall be payable in cash by wire transfer of immediately available funds. (b) In order to exercise its purchase rights hereunder, each holder of Stockholder Shares must deliver a written notice to Holdings describing its election hereunder within 30 days after receipt of written notice from Holdings describing in reasonable detail the stock or securities being offered, the Corporation shall again comply with purchase price thereof, the provisions of this Section 3.5 with respect to payment terms and such transaction, and the Holder shall again have preemptive rights hereunder with respect to the transaction, regardless of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant to the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of the transaction proposed by the Makerholder's percentage allotment. (c) The restrictions contained inUpon the expiration of the offering periods described above, Holdings shall be entitled to sell such stock or securities which the holders of Stockholder Shares have not elected to purchase during the 90 days following such expiration on terms and preemptive rights granted under, this Section 3.5 shall not apply to: (i) shares conditions no more favorable to the purchasers thereof than those offered to holders of Common Stock issued upon conversion Stockholder Shares. Any stock or securities offered or sold by Holdings to any Person after such 90 day period must be reoffered to the holders of Stockholder Shares pursuant to the terms of this Note; (ii) shares of capital stock of the Maker issued in a public offering occurring after the date hereof that results in aggregate gross proceeds to the Maker of at least Fifty Million Dollars ($50,000,000); or (iii) shares of Common Stock issued upon the exercise or conversion of outstanding options, warrants or other Common Stock equivalents in existence on the Issuance Date. The rights granted to the Holder under this Section 3.5 may be waived with respect to any Preemptive Shares by a written waiver executed by the Holderparagraph.

Preemptive Rights. (a) Except 10.1 Until such time as set forth in Section 3.5(c), the Maker shall not issue or sell any shares of Common Stock or other securities, or any rights or options to purchase Common Stock or other securities, or any debt or shares convertible into or exchangeable for Common Stock or other securities, whether now or hereafter authorized and whether unissued or in Company completes a Public Offering where the treasury (collectively, “Preemptive Shares”), unless the Holder shall first have been given the right to acquire, at a price no less favorable than that at which such Preemptive Shares are to be offered to others, a portion of the Preemptive Shares, as provided in Section 3.5(b). (b) The Maker shall give the Holder prior written notice of any proposed issuance or sale described in Section 3.5(a), including the price at which such securities are to be offered and the time period for the offering, and the Holder shall have thirty (30) days from the giving of such notice within which to elect to acquire that number of the Preemptive Shares equal aggregate gross proceeds to the product Company are in excess of $30,000,000, Purchasers will have the total number of Preemptive Shares being offered and a fractionright, determined as of the time immediately prior to the issuance of the Preemptive Shares, the numerator of which is equal to the sum of (i) the number of shares of Common Stock then outstanding as a result of the conversion of this Note, and (ii) the number of shares of Common Stock into which this Note could be converted, and the denominator of which is equal to the sum of (x) the number of shares of Common Stock then outstanding, (y) the number of shares of Common Stock into which this Note could be converted, and (z) the number of shares of Common Stock issuable upon conversion or exercise of all outstanding options, warrants and other rights for the purchase of capital stock of the Company, and all outstanding shares of all series of preferred stock (such number of Preemptive Shares being referred to herein as the “Common Stock Preemptive Shares”). The Holder may acquire that portion of the Common Stock Preemptive Shares being offered equal to its percentage ownership of the outstanding Common Stock immediately preceding the issuance of the Preemptive Shares. If any transaction specified by the Maker in any such notice shall not be consummated within one hundred twenty (120) days from the date of such notice, the Corporation shall again comply accordance with the provisions of this Section 3.5 with respect 10, to such transaction, and the Holder shall again have preemptive rights hereunder with respect to the transaction, regardless purchase their portion of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant to the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of the transaction proposed future issuances by the Maker. Company of Equity Securities in such amounts so as to maintain their as-converted ownership in the Company on a pro-rata basis (c) The restrictions contained in, and preemptive their "Pro-Rata Share"); provided that the rights granted under, in this Section 3.5 10 shall not apply to: (i) shares the warrants issued pursuant to the Senior Notes Offering and the common stock issuable upon exercise of Common Stock issued upon conversion of this Note; such warrants; (ii) shares the issuance of capital Additional Securities; (iii) the grant of options to directors or employees under the Company's existing or future stock option plan and the securities issued pursuant to the exercise of the Maker such options; (v) securities issued in a public offering occurring after connection with the date hereof that results acquisition of another entity by the Company by merger; (vi) securities issued in aggregate gross proceeds to connection with any stock split, stock dividend, recapitalization or reorganization by the Maker of at least Fifty Million Dollars Company; or ($50,000,000); or (iiivii) shares of Common Stock or options or warrants to purchase Common Stock or securities convertible into Common Stock issued to a vendor, lessor, lender or other business entity in connection with a lease, loan, strategic alliance, joint venture or other business transaction, the primary purpose of which is not the purchase of such Common Stock, options, warrants, or convertible securities, provided that such business transaction is approved by the Board of Directors. 10.2 In the event that the Company proposes to issue Equity Securities, at least 30 days before such issuance, it shall give to each holder of shares of Preferred Stock written notice of its intention, describing in such notice the type of Equity Securities, the price, and the terms upon which the Company proposes to issue such Equity Securities (the "Offer Notice"). Each holder of shares of Preferred Stock shall have 20 days from the date of its receipt of any such Offer Notice to agree to purchase all or a apart of its Pro Rata Share of such Equity Securities for the price and upon the exercise or conversion of outstanding options, warrants or other Common Stock equivalents terms specified in existence on the Issuance Date. The rights granted Offer Notice by giving written notice to the Holder under this Section 3.5 may Company and stating therein the quantity of Equity Securities to be waived with respect to any Preemptive Shares purchased. Any agreement by a written waiver executed by the Holderholder of shares of Preferred Stock to purchase Equity Securities shall be binding on such holder of shares of Preferred Stock.

Preemptive Rights. 8.1 Subject to Sections 2.9 and 8.4, if at any time the Corporation wishes to issue and sell any equity securities (awhether preferred stock or common stock) Except as set forth in Section 3.5(c)or any options, warrants or other rights to acquire equity securities or any notes or other securities convertible into equity securities (all such equity securities and other rights and securities, collectively, the Maker "Equity Equivalents") to any Person or Persons, the Corporation shall promptly deliver a notice of intention to issue and sell (the "Corporation's Notice of Intention to Sell") to each Stockholder setting forth a description of the Equity Equivalents to be issued and the proposed purchase price and terms of sale. Upon receipt of the Corporation's Notice of Intention to Sell, each Stockholder shall have the right to elect to purchase, at the price and on the terms stated in the Corporation's Notice of Intention to Sell, a number of the Equity Equivalents equal to the product of (i) such Stockholder's proportionate ownership (expressed as a fraction) of the aggregate Common Stock and rights to acquire Common Stock (calculated on a fully-diluted basis assuming all holders of then outstanding warrants, options and convertible securities of the Corporation which are in the money had converted such convertible securities or exercised such warrants or options immediately prior to the taking of the record of the holders of Common Stock for the purpose of determining whether they are entitled to receive such offer) held by all Stockholders multiplied by (ii) the number of Equity Equivalents to be issued. Such election shall be made by the electing Stockholder by written notice to the Corporation within five (5) business days after receipt by such Stockholder of the Corporation's Notice of Intention to Sell (the "Acceptance Period for Equity Equivalents"). For purposes of this Section 8.1, the Convertible Notes shall be deemed at all times to be "in the money". 8.2 If effective elections to purchase shall not be received pursuant to Section 8.1 in respect of all the Equity Equivalents to be issued and sold, then the Corporation may, at its election, during a period of one hundred and twenty (120) days following the expiration of the Acceptance Period for Equity Equivalents, issue and sell the remaining Equity Equivalents to another Person or Persons at a price and upon terms not more favorable to such Person than those stated in the Corporation's Notice of Intention to Sell; provided, however, that -------- ------- failure by a Stockholder to exercise its right to purchase with respect to the issuance and sale of Equity Equivalents pursuant to one Corporation's Notice of Intention to Sell shall not affect its right to acquire Equity Equivalents pursuant to any subsequent issuance and sale for which a separate Corporation's Notice of Intention to Sell would be required hereunder. In the event the Corporation has not sold the Equity Equivalents covered by a Corporation's Notice of Intention to Sell, or entered into a binding agreement to sell the Equity Equivalents, within such one hundred and twenty (120) day period, the Corporation shall not thereafter issue or sell such Equity Equivalents without again first offering such securities to each Stockholder in the manner provided in Section 8.1. 8.3 If a Stockholder gives the Corporation notice pursuant to Section 8.1 that such Stockholder desires to purchase Equity Equivalents offered by the Corporation, payment therefor shall be made by wire transfer of immediately available funds, against delivery of the securities at the executive offices of the Corporation within ten (10) days after the giving of such notice, or, if later, not later than the closing date fixed by the Corporation for the sale of all such Equity Equivalents. 8.4 The preemptive rights contained in Sections 8.1 through 8.3 shall not apply to (i) the issuance of shares of Common Stock as a stock dividend or upon any subdivision, stock split or combination of the outstanding shares of Common Stock or in exchange for outstanding shares of Common Stock pursuant to any conversion right or obligation contained in the Corporation's Certificate of Incorporation (e.g., the conversion of Class B Stock or Class C Stock into Class A Stock); (ii) the issuance of Convertible Notes as cumulative interest payments on the Convertible Notes Outstanding Balance in accordance with the terms of the Convertible Notes (and any other securitiesapplicable governing documents) as in effect on the date hereof; (iii) provided VPC and its Affiliates comply with the provisions of Section 2.7.5, the issuance of Common Stock upon the conversion of Convertible Notes; (iv) the grant of options, warrants or rights to subscribe for shares of Common Stock, and the issuance of shares of Common Stock upon the exercise of such options, warrants or rights to subscribe for shares of Common Stock (including such options, warrants or rights issued prior to the date hereof), to officers, directors and employees of the Corporation or any of its Subsidiaries pursuant to the Corporation's Incentive Stock Option Plan or pursuant to any other plan or arrangement for the grant of options and other rights to acquire Common Stock to such officers, directors and employees adopted by the Corporation with the approval of the Board; (v) the issuance of Common Stock upon the exercise of the Kofalt Warrant, the Xxxx Warrant or options the Xxxxx Warrant; (vi) the issuance of Equity Equivalents pursuant to purchase an offering registered under the Securities Act; (vii) the issuance of Common Stock or other securities, options or any debt warrants exercisable for Common Stock or shares securities convertible into or exchangeable for Common Stock or other securities, whether now or hereafter authorized and whether unissued or in the treasury (collectively, “Preemptive Shares”)"Common Stock Equivalents") for other than cash, unless provided that any such issuance shall give rise to the Holder rights provided to CDPQ under Section 8.5; (viii) provided a Strategic Investment has not been consummated, the issuance of Common Stock Equivalents pursuant to an Alternative Strategic Investment, provided that any such issuance shall first have been given give rise to the right rights provided to acquire, at a price no less favorable than that at which such Preemptive Shares are CDPQ under Section 8.5; and (ix) and the issuance of Common Stock Equivalents to be offered CDPQ pursuant to others, a portion of the Preemptive Shares, as provided in Section 3.5(b)8.5. 8.5 Subject to Section 2.9, if at any time the Corporation issues and sells any Common Stock Equivalents (a) pursuant to an Alternative Strategic Investment or (b) The Maker for other than cash to any Person (other than to VPC or any of its Affiliates) (any such issuance, an "Alternative Issuance"), then, within five (5) business days after such Alternative Issuance, the Corporation shall give the Holder prior written deliver a notice of any proposed issuance or and sale described in Section 3.5(a), including (the price at which such securities are "Corporation's Notice of Issuance") to be offered CDPQ setting forth a description and the time period for the offering, amount of and the Holder shall have thirty (30) days from the giving of such notice within which to elect to acquire that number of the Preemptive Shares equal to the product of the total number of Preemptive Shares being offered and a fraction, determined as of the time immediately prior to the issuance of the Preemptive Shares, the numerator of which is equal to the sum of (i) the number of shares of Common Stock then outstanding as represented by the Common Stock Equivalents issued, a result description of the conversion consideration received by the Corporation for the issuance of this Note, and (ii) the number of shares of such Common Stock into which this Note could be converted, and the denominator of which is equal to the sum of Equivalents (x) the number of shares of Common Stock then outstanding, (y) the number of shares of Common Stock into which this Note could be converted, and (z) the number of shares of Common Stock issuable upon conversion or exercise of all outstanding options, warrants and other rights for the purchase of capital stock as well as an estimate of the Companyfair market value of any non-cash consideration) and a description of the other material terms of the issuance and sale. Upon receipt of the Corporation's Notice of Issuance, and all outstanding shares of all series of preferred stock (such CDPQ shall have the right to elect to purchase from the Corporation an amount or number of Preemptive Shares being referred to herein as the “Common Stock Preemptive Shares”). The Holder may acquire that portion of the Common Stock Preemptive Shares being offered Equivalents which would restore CDPQ to its proportionate ownership of Common Stock (calculated on a fully diluted basis) immediately prior to such Alternative Issuance for a cash purchase price equal to its percentage ownership the then fair market value of the outstanding Common Stock immediately preceding Equivalents to be purchased by CDPQ (which fair market value will be based upon and will be no more than the issuance implicit fair market value of the Preemptive Sharesconsideration received by the Corporation for such Common Stock Equivalents in such Alternative Issuance). Such election shall be made by CDPQ by written notice to the Corporation within five (5) business days after receipt by CDPQ of the Corporation's Notice of Issuance. If any transaction specified CDPQ gives the Corporation notice pursuant to this Section 8.5 that CDPQ desires to purchase the Common Stock Equivalents offered by the Maker in any such notice Corporation, payment therefor shall not be consummated made by wire transfer of immediately available funds, against delivery of the securities at the executive offices of the Corporation within one hundred twenty ten (12010) days from after the date giving of such notice. 8.6 The Corporation represents and warrants to each Stockholder, and each Stockholder represents and warrants to the Corporation, that, except as provided herein, the Corporation shall again comply with the provisions of this Section 3.5 with respect Person making such representation and warranty is not a party to such transaction, and the Holder shall again have preemptive rights hereunder with respect to the transaction, regardless of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant to the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of the transaction proposed by the Maker. (c) The restrictions contained in, and preemptive rights granted under, this Section 3.5 shall not apply to: (i) shares of Common Stock issued upon conversion of this Note; (ii) shares of capital stock of the Maker issued in a public offering occurring after the date hereof that results in aggregate gross proceeds to the Maker of at least Fifty Million Dollars ($50,000,000); or (iii) shares of Common Stock issued upon the exercise or conversion of outstanding options, warrants agreement or other Common Stock equivalents in existence on arrangement under which any other Person has a preemptive right or right of first refusal to acquire Corporation Shares or other Equity Equivalents from the Issuance Date. The rights granted to the Holder under this Section 3.5 may be waived with respect to any Preemptive Shares by a written waiver executed by the HolderPerson making such representation and warranty.

Preemptive Rights. (a) Except as set forth in Section 3.5(cUntil the consummation of an Initial Public Offering, each Stockholder shall have the right to purchase for cash its Preemptive Right Pro Rata Share of newly issued (i) Common Shares, (ii) shares of common stock of a Subsidiary of the Company ("Subsidiary Common Shares"), the Maker shall not issue (iii) options or sell any shares of Common Stock or other securitieswarrants to purchase, or any rights or options to purchase Common Stock or other securities, or any debt or shares securities convertible into or exchangeable for for, Common Stock Shares or Subsidiary Common Shares ("Rights") or (iv) newly issued securities of the Company or any Subsidiary of the Company, other than Common Shares, Subsidiary Common Shares or Rights, which are addressed separately in (i), (ii) and (iii) above (such securities, whether now or hereafter authorized "Other Rockwood Securities" and whether unissued or in the treasury (collectivelytogether with Common Shares, “Preemptive Shares”Subsidiary Common Shares and Rights, "Group Securities"), unless in each case that the Holder shall first have been given the right to acquire, at a price no less favorable than that at which such Preemptive Shares are to be offered to others, a portion Company or any Subsidiary of the Preemptive Company, as applicable, may from time to time propose to sell for cash; provided, that, with respect to Group Securities other than Common Shares or Rights to acquire Common Shares, as provided in Section 3.5(b). (b) The Maker the DLJ Group shall give the Holder prior written notice of any proposed issuance or sale described in Section 3.5(a), including the price at which only be entitled to purchase such Group Securities other than Common Shares and Rights to acquire Common Shares if such securities are proposed to be offered and sold to any member of the time period KKR Group or any Affiliate of a member of the KKR Group. A Stockholder's "Preemptive Right Pro Rata Share" shall be, at any given time, (i) with respect to issuances of Group Securities other than Common Shares or Rights to acquire Common Shares (x) for the offeringKKR Group, and that proportion, calculated prior to any proposed new issuance, which the Holder shall have thirty (30) days from the giving of such notice within which to elect to acquire that number of Common Shares owned by the Preemptive KKR Group at such time bears to the total number of Common Shares equal to outstanding at such time and (y) for the DLJ Group, the product of the total number of Preemptive Shares being offered shares of a class of Group Securities which a Rockwood Entity proposes to issue to the KKR Group and a the fraction, determined as of the time immediately prior to the issuance of the Preemptive Sharesany proposed new issuance, the numerator of which is equal to the sum of (i) the number of shares of Common Stock then outstanding as a result of Shares owned by the conversion of this Note, and (ii) the number of shares of Common Stock into which this Note could be converted, DLJ Group and the denominator of which is equal to the sum of (x) the number of shares Common Shares owned by the KKR Group and (ii) with respect to issuances of Common Stock then outstandingShares and Rights to acquire Common Shares, (y) that proportion, calculated prior to any proposed new issuance, which the number of shares Common Shares owned by such Stockholder at such time bears to the total number of Common Stock into Shares outstanding at such time. (b) In the event the Company or a Subsidiary of the Company proposes to undertake an issuance for cash of Group Securities to any Person, it shall give the Stockholders written notice (the "Preemptive Notice") of its intention to sell Group Securities for cash, the price, the identity of the purchaser and the principal terms upon which this Note could be convertedthe Company or any Subsidiary proposes to issue the same. Subject to Section 6.1(a), and (z) each Stockholder shall have ten Business Days from the delivery date of any Preemptive Notice to agree to purchase a number of shares Group Securities up to its Preemptive Right Pro Rata Share of Common Stock issuable upon conversion or exercise of all outstanding options, warrants and other rights Group Securities (in each case calculated prior to the issuance) for the purchase of capital stock price and upon the terms specified in the Preemptive Notice by giving written notice to the Company or any Subsidiary of the Company, as applicable, and all outstanding shares of all series of preferred stock (such stating therein the number of Preemptive Shares being referred Group Securities to herein as the “Common Stock Preemptive Shares”). The Holder may acquire that portion of the Common Stock Preemptive Shares being offered equal to its percentage ownership of the outstanding Common Stock immediately preceding the issuance of the Preemptive Shares. If any transaction specified by the Maker in any such notice shall not be consummated within one hundred twenty (120) days from the date of such notice, the Corporation shall again comply with the provisions of this Section 3.5 with respect to such transaction, and the Holder shall again have preemptive rights hereunder with respect to the transaction, regardless of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant to the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of the transaction proposed by the Makerpurchased. (c) The restrictions contained in, and preemptive rights granted under, In the event that any Stockholder fails to purchase all of its Preemptive Right Pro Rata Share pursuant to this Section 3.5 shall not apply to: (i) shares of Common Stock issued upon conversion of this Note; (ii) shares of capital stock 6.1, the Company or any Subsidiary of the Maker issued in a public offering occurring Company, as applicable, shall have 180 days after the date hereof that results in aggregate gross proceeds of the Preemptive Notice to consummate the Maker sale of at least Fifty Million Dollars ($50,000,000); or (iii) shares of Common Stock issued upon the exercise or conversion of outstanding options, warrants or other Common Stock equivalents in existence on the Issuance Date. The rights granted to the Holder under this Section 3.5 may be waived Group Securities with respect to any which such Stockholder's preemptive right was not exercised, at or above the price and upon terms not more favorable to the purchasers of such Group Securities than the terms specified in the initial Preemptive Shares by a written waiver executed by the HolderNotice given in connection with such sale.

Preemptive Rights. (a) Except for the issuance of Common Stock (and/or securities exercisable for or convertible into Common Stock) (i) to Holdings' or its Subsidiaries' directors or employees in their capacity as set forth such, (ii in Section 3.5(c)connection with an Approved Sale, (ii pursuant to a Strategic Buyer Transaction, (iv in connection with any merger, consolidation, acquisition of stock, acquisition of assets, business combination or similar transaction, (v) pursuant to the Maker shall not issue or sell any initial public offering of Holdings' Common Stock registered under the Securities Act with respect to a number of shares of Common Stock or other securities, or any rights or options equal to purchase up to 20% of the shares of Common Stock outstanding immediately prior to such initial public offering or other securities, (vi) upon the conversion or any debt or shares exercise of securities convertible into or exchangeable for containing options or rights to acquire Common Stock or other securitiesStock, whether now or hereafter authorized and whether unissued or in the treasury (collectively, “Preemptive Shares”), unless the Holder Holdings shall first have been given offer to sell to each holder of Xxxx Shares, each holder of GS Shares and, until Hoechst (and its Affiliates) own less than 75% of the right to acquireInitial Hoechst Shares, at a price no less favorable than that at which such Preemptive Shares are to be offered to others, Hoechst a portion of the Preemptive Shares, as provided in Section 3.5(b). (b) The Maker shall give the Holder prior written notice of any proposed issuance such stock or sale described in Section 3.5(a), including the price at which such securities are to be offered and the time period for the offering, and the Holder shall have thirty (30) days from the giving of such notice within which to elect to acquire that number of the Preemptive Shares equal to (x) the product of the total number of Preemptive Shares being offered and a fraction, quotient determined as of the time immediately prior to the issuance of the Preemptive Shares, the numerator of which is equal to the sum of by dividing (iA) the number of shares of Common Stock then outstanding as a result held by such holder of Stockholder Shares (including any shares issuable upon exercise of the conversion of this Note, and Warrant if then exercisable) by (iiB) the total number of shares of outstanding Common Stock into which this Note could be converted, and (including any shares issuable upon exercise of the denominator of which is equal to the sum of (xWarrant if then exercisable) the number of shares of Common Stock then outstanding, plus (y) a pro rata share of such stock or securities not otherwise purchased by the number other Stockholders, if any. Each such holder of shares Stockholder Shares shall be entitled to purchase such stock or securities at the most favorable price and on the most favorable terms as such stock or securities are to be offered to any other Person. The purchase price for all stock and securities offered to each such holder of Common Stock into which this Note could Stockholder Shares shall be convertedpayable in cash by wire transfer of immediately available funds. (b) In order to exercise its purchase rights hereunder, and (z) each holder of Stockholder Shares must deliver a written notice to Holdings describing its election hereunder within 30 days after receipt of written notice from Holdings describing in reasonable detail the number of shares of Common Stock issuable upon conversion stock or exercise of all outstanding optionssecurities being offered, warrants and other rights for the purchase of capital stock of the Company, and all outstanding shares of all series of preferred stock (such number of Preemptive Shares being referred to herein as the “Common Stock Preemptive Shares”). The Holder may acquire that portion of the Common Stock Preemptive Shares being offered equal to its percentage ownership of the outstanding Common Stock immediately preceding the issuance of the Preemptive Shares. If any transaction specified by the Maker in any such notice shall not be consummated within one hundred twenty (120) days from the date of such noticeprice thereof, the Corporation shall again comply with the provisions of this Section 3.5 with respect to payment terms and such transaction, and the Holder shall again have preemptive rights hereunder with respect to the transaction, regardless of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant to the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of the transaction proposed by the Makerholder's percentage allotment. (c) The restrictions contained inUpon the expiration of the offering periods described above, Holdings shall be entitled to sell such stock or securities which the holders of Stockholder Shares have not elected to purchase during the 90 days following such expiration on terms and preemptive rights granted under, this Section 3.5 shall not apply to: (i) shares conditions no more favorable to the purchasers thereof than those offered to holders of Common Stock issued upon conversion Stockholder Shares. Any stock or securities offered or sold by Holdings to any Person after such 90 day period must be reoffered to the holders of Stockholder Shares pursuant to the terms of this Note; (ii) shares of capital stock of the Maker issued in a public offering occurring after the date hereof that results in aggregate gross proceeds to the Maker of at least Fifty Million Dollars ($50,000,000); or (iii) shares of Common Stock issued upon the exercise or conversion of outstanding options, warrants or other Common Stock equivalents in existence on the Issuance Date. The rights granted to the Holder under this Section 3.5 may be waived with respect to any Preemptive Shares by a written waiver executed by the Holderparagraph.

Preemptive Rights. (a) Except In the event of any offering of New Securities (as set forth defined below) by the Company, each Investor, commencing on the earlier of (1) the termination of the Merger Agreement and (2) the date that is 180 days after the Closing Date and for so long as the Notes or any Note Shares remain outstanding, shall have the right to purchase a percentage of the New Securities being offered that is equal to the percentage of the outstanding Common Stock of the Company owned by such Investor on an as-converted basis (treating for this purpose as outstanding all shares of Common Stock issuable upon the full conversion of the Notes then outstanding); provided, however, that this right shall not apply to (i) equity compensation grants to employees, consultants, or directors pursuant to plans or other arrangements approved by the Board of Directors of the Company, (ii) securities issued upon the conversion or exercise of any convertible or exercisable securities that are outstanding as of the date hereof on the terms in Section 3.5(ceffect on such date, (iii) the issuance of securities in connection with any underwritten public offering (excluding, for the avoidance of doubt, registered direct offerings), (iv) securities issued upon any split, dividend, combination or other similar event with respect to the Maker capital stock of the Company, (v) securities subsequently issued upon conversion, exercise or exchange of those securities that have been issued in compliance with, or on issuance were exempt from the preemptive rights provided for in this Section 5.3, and (vi) shares of Common Stock or convertible securities or rights issued or issuable in connection with mergers, acquisitions, strategic transactions, commercial relationships and debt financings approved by the Board of Directors of the Company, including the Investor Designee; provided, further, that in connection with any underwritten public offering, the Company will use reasonable best efforts to allow each Investor to purchase a sufficient amount of such offered securities so as to maintain as closely as possible such Investor’s proportionate interest in the Company on an as-converted basis as described above (disregarding any allocations of such offered securities that may be made by the underwriters to Affiliates of any Investor in the ordinary course investment business of such Affiliates). An Investor shall be deemed to have waived its rights under this Section 5.3 if such Investor shall have not delivered to the Company its written election to purchase such securities within ten (10) Business Days of receipt of the Company’s notice of such offering describing the material terms thereof (such ten (10) Business Day period, the “Offer Period”). If the Investors fail to exercise their purchase right pursuant to this Section 5.3, then the Company shall have the right, until the expiration of one hundred eighty (180) days commencing upon the expiration of the Offer Period, to issue such New Securities to one (1) or sell any more third parties on terms no more favorable to the purchasers thereof than the terms specified in the Company’s notice of such offering to the Investors, after which the terms of this Section 5.3 shall again apply to the Company’s offering of such New Securities. (b) For purposes of this Agreement, the term “New Securities” shall mean securities, contract rights, notes, obligations, options, warrants, or other rights that are directly or indirectly exercisable for, convertible into, or exchangeable for shares of Common Stock or other securities, capital or any rights or options to purchase Common Stock or other securities, or any debt or shares convertible into or exchangeable for Common Stock or other securities, whether now or hereafter authorized and whether unissued or in the treasury (collectively, “Preemptive Shares”), unless the Holder shall first have been given the right to acquire, at a price no less favorable than that at which such Preemptive Shares are to be offered to others, a portion of the Preemptive Shares, as provided in Section 3.5(b). (b) The Maker shall give the Holder prior written notice of any proposed issuance or sale described in Section 3.5(a), including the price at which such securities are to be offered and the time period for the offering, and the Holder shall have thirty (30) days from the giving of such notice within which to elect to acquire that number of the Preemptive Shares equal to the product of the total number of Preemptive Shares being offered and a fraction, determined as of the time immediately prior to the issuance of the Preemptive Shares, the numerator of which is equal to the sum of (i) the number of shares of Common Stock then outstanding as a result of the conversion of this Note, and (ii) the number of shares of Common Stock into which this Note could be converted, and the denominator of which is equal to the sum of (x) the number of shares of Common Stock then outstanding, (y) the number of shares of Common Stock into which this Note could be converted, and (z) the number of shares of Common Stock issuable upon conversion or exercise of all outstanding options, warrants and other rights for the purchase of capital voting stock of the Company, and all outstanding shares of all series of preferred stock (such number of Preemptive Shares being referred to herein as the “Common Stock Preemptive Shares”). The Holder may acquire that portion of the Common Stock Preemptive Shares being offered equal to its percentage ownership of the outstanding Common Stock immediately preceding the issuance of the Preemptive Shares. If any transaction specified by the Maker in any such notice shall not be consummated within one hundred twenty (120) days from the date of such notice, the Corporation shall again comply with the provisions of this Section 3.5 with respect to such transaction, and the Holder shall again have preemptive rights hereunder with respect to the transaction, regardless of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant to the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of the transaction proposed by the Maker. (c) The restrictions contained in, and preemptive rights granted under, this Section 3.5 shall not apply to: (i) shares of Common Stock issued upon conversion of this Note; (ii) shares of capital stock of the Maker issued in a public offering occurring after the date hereof that results in aggregate gross proceeds to the Maker of at least Fifty Million Dollars ($50,000,000); or (iii) shares of Common Stock issued upon the exercise or conversion of outstanding options, warrants or other Common Stock equivalents in existence on the Issuance Date. The rights granted to the Holder under this Section 3.5 may be waived with respect to any Preemptive Shares by a written waiver executed by the Holder.

Preemptive Rights. (a) 2.1. Except as set forth in Section 3.5(c)for Excluded Securities, the Maker Corporation shall not issue issue, sell or exchange, agree to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, (i) any shares of Common Stock or Stock, (ii) any other securitiesequity security of the Corporation, or any rights or options to purchase Common Stock or other securities, or (iii) any debt or shares security of the Corporation which by its terms is convertible into or exchangeable for for, with or without consideration, any equity security of the Corporation, (iv) any security of the Corporation that is a combination of debt and equity or (v) any security convertible into, or exchangeable or exercisable for, shares of Common Stock Stock, or warrant or other securitiesright to subscribe for, whether now purchase or hereafter authorized and whether unissued otherwise acquire any equity security or any such debt security of the type described in clause (iii) or (iv) above of the treasury Corporation (collectively, the “Preemptive SharesFinancing Securities”)) unless in each case the Corporation shall have first offered to sell to each Investor then holding at least 10,000,000 shares in the aggregate of Series E Preferred, unless Series D Preferred and Series C Preferred (subject to appropriate and proportionate adjustment for any stock dividends, stock splits and other subdivisions and combinations of, and recapitalizations and like occurrences with respect to, such shares) (or an equivalent amount of Common Stock issued upon conversion thereof) (each, a “Major Investor” and collectively, the Holder shall first have been given “Major Investors”) its pro-rata share of the right to acquireFinancing Securities, at a price no less favorable than that at and on such other terms as the Corporation proposes to offer such Financing Securities to other parties and which such Preemptive Shares are to be offered to others, a portion of the Preemptive Shares, as provided in Section 3.5(b). (b) The Maker shall give the Holder prior written notice of any proposed issuance or sale described in Section 3.5(a), including the price at which such securities are to be offered and the time period for the offering, and the Holder shall have thirty been specified by the Corporation in writing (30an “Offer”) delivered to the Major Investors, which Offer by its terms shall remain open and irrevocable for a period of fifteen (15) days from the date the Offer is received by the Major Investors (or, if later, within five (5) days after the giving of any written notice of a material change in such notice within which to elect to acquire Offer). As used in this Section 2.1, a Major Investor’s “pro-rata share” shall be that number amount of the Preemptive Shares equal Financing Securities that equals (x) the aggregate amount of Financing Securities to the product of the total number of Preemptive Shares being offered and be issued, sold or exchanged, multiplied by (y) a fraction, determined as of the time immediately prior to the issuance of the Preemptive Shares, (A) the numerator of which is equal to the sum of (i) the number of shares of Common Stock then outstanding as a result of issued or issuable upon the conversion of this Note, all shares of Preferred Stock held by such Major Investor immediately prior to the Offer and (iiB) the denominator of which is the number of shares of Common Stock into which this Note could be converted, and issued or issuable upon the denominator conversion of which is equal all shares of Preferred Stock held by all Major Investors immediately prior to the sum Offer. The Offer will specify (i) the aggregate amount of Financing Securities to be issued, sold or exchanged, (xii) the calculation of the Major Investor’s pro rata share and (iii) the number of shares shares, principal amount or the like of Common Stock then outstandingthe Financing Securities which such Major Investor may purchase. 2.2. Notice of a Major Investor’s intention to accept, in whole or in part, an Offer shall be evidenced by a writing signed by the Major Investor and delivered to the Corporation at or prior to the end of the 15-day period commencing with the date the Offer is received by the Major Investor (y) or, if later, within 5 days after the giving of any written notice of a material change in such Offer), setting forth such portion (specifying the number of shares of Common Stock into which this Note could be convertedshares, and (zprincipal amount or the like) the number of shares of Common Stock issuable upon conversion or exercise of all outstanding options, warrants and other rights for the purchase of capital stock of the Company, and all outstanding shares of all series of preferred stock (such number of Preemptive Shares being referred to herein Financing Securities as the Major Investor elects to purchase (the “Common Stock Preemptive SharesNotice of Acceptance”). If a Major Investor elects to purchase its full pro rata share of Financing Securities (each, an “Electing Investor”), then such Electing Investor shall have a right of over-allotment such that if any other Major Investor fails to purchase its pro rata share (the “Non-electing Investor”), such Electing Investor may purchase, on a pro rata basis with other Electing Investors, the Non-electing Investor’s pro rata share. 2.3. The Holder may acquire that portion of the Common Stock Preemptive Shares being offered equal to its percentage ownership of the outstanding Common Stock immediately preceding the issuance of the Preemptive Shares. If any transaction specified by the Maker in any such notice Corporation shall not be consummated within one hundred twenty (120) have 180 days from the date expiration of the foregoing 15-day period to sell all or any part of such noticeFinancing Securities as to which a Notice of Acceptance has not been given by the Major Investors (the “Remaining Securities”) to any other persons or entities, but only upon terms and conditions in all material respects, including without limitation, per share price and interest rates, which are no more favorable, in the aggregate, to such other persons or entities or less favorable to the Corporation than those set forth in the Offer. Upon the closing of the sale to such other persons or entities of all or any part of the Remaining Securities, which shall include payment of the purchase price to the Corporation in accordance with the terms of the Offer, if the Major Investor has timely submitted a Notice of Acceptance, it shall purchase from the Corporation, and the Corporation shall again comply with sell to the provisions Major Investor, the Financing Securities in respect of this Section 3.5 with respect which a Notice of Acceptance was delivered to the Corporation by the Preferred Investor, at the terms specified in the Offer. The purchase by the Major Investor of any Financing Securities is subject in all cases to the preparation, execution and delivery by the Corporation and the Major Investor of a purchase agreement and other customary documentation relating to such transaction, Financing Securities as is reasonably satisfactory in form and the Holder shall again have preemptive rights hereunder with respect substance to the transactionPreferred Investor and its counsel. 2.4. After the expiration of the 180-day period referred to in Section 2.2, regardless any Financing Securities not purchased by the Major Investors or by a person or entity in accordance with Section 2.2 may not be sold or otherwise disposed of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant until they are again offered to the exercise of preemptive rights shall be consummated simultaneously withPreferred Investors under the procedures specified in Sections 2.1, 2.2 and shall be conditioned upon, consummation of the transaction proposed by the Maker2.2 hereof. (c) The restrictions contained in, and preemptive 2.5. Each Major Investor may assign its rights granted under, this Section 3.5 shall not apply to: (i) shares of Common Stock issued upon conversion of this Note; (ii) shares of capital stock of the Maker issued in a public offering occurring after the date hereof that results in aggregate gross proceeds to the Maker of at least Fifty Million Dollars ($50,000,000); or (iii) shares of Common Stock issued upon the exercise or conversion of outstanding options, warrants or other Common Stock equivalents in existence on the Issuance Date. The rights granted to the Holder under this Section 3.5 may be waived with respect 2 to any Preemptive Shares by a written waiver executed by the Holderits Affiliates.

Preemptive Rights. (a) Except (i) for issuances of pro rata dividends to all holders of Common Stock, (ii) stock issued to employees, officers or directors in connection with management options or incentive plans approved by the Board of Directors, (iii) stock issued in connection with any merger, acquisition or business combination, (iv) stock issued for consideration amounting to less than $500,000 in any single transaction where the purchase price is not less than the then applicable Conversion Price (as set forth defined in Section 3.5(cthe Articles Supplementary), provided that the Maker aggregate amount of all such transactions shall not issue exceed $1,000,000, (v) up to 5,167,328 shares -43- of stock issuable upon conversion of the 6% Non-Voting Convertible Preferred Stock (as adjusted pursuant to the antidilution provisions therein), or sell any (vi) up to 1,193,573 shares of stock issuable pursuant to the MCI Warrant (as adjusted pursuant to the antidilution provisions therein), in order to enable such holders to maintain their Fully Diluted percentage ownership of the Company, the holders of the Series A Preferred shall have preemptive rights, as hereinafter set forth, to purchase any capital stock, including any warrants or securities convertible into capital stock, of the Company hereafter issued by the Company so that a holder of the Series A Preferred shall hereafter be entitled to acquire a percentage of capital stock which is hereafter issued equal to the same percentage of the issued and outstanding Common Stock of the Company as is held (directly or other securities, or any rights or options obtainable upon conversion of the Series A Preferred) by such holder of Series A Preferred immediately prior to purchase Common Stock or other securities, or any debt or shares convertible into or exchangeable for Common Stock or other securities, whether now or hereafter authorized and whether unissued or in the treasury (collectively, “Preemptive Shares”), unless date on which the Holder shall first have been given the right to acquire, at a price no less favorable than that at which such Preemptive Shares are capital stock is to be offered to othersissued on a Fully Diluted basis. As used herein, a portion "issue" (and variations thereof) includes sales and transfers by the Company of the Preemptive Shares, as provided in Section 3.5(b)treasury shares. (b) The Maker shall Company shall, before issuing any additional capital stock (other than the exceptions referred to in Section 10(a) hereof), give the Holder prior written notice thereof to the holders of any proposed issuance or sale described in Section 3.5(a), including the price at which such securities are Series A Preferred. Such notice shall specify what type of instrument the Company intends to be offered issue and the time consideration which the Company intends to receive therefor. For a period for the offering, and the Holder shall have thirty of twenty (3020) days from following receipt by the giving of such notice within which to elect to acquire that number holders of the Preemptive Shares equal to the product of the total number of Preemptive Shares being offered and a fraction, determined as of the time immediately prior to the issuance of the Preemptive Shares, the numerator of which is equal to the sum of (i) the number of shares of Common Stock then outstanding as a result of the conversion of this Note, and (ii) the number of shares of Common Stock into which this Note could be converted, and the denominator of which is equal to the sum of (x) the number of shares of Common Stock then outstanding, (y) the number of shares of Common Stock into which this Note could be converted, and (z) the number of shares of Common Stock issuable upon conversion or exercise of all outstanding options, warrants and other rights for the purchase of capital stock of the Company, and all outstanding shares of all series of preferred stock (such number of Preemptive Shares being referred to herein as the “Common Stock Preemptive Shares”). The Holder may acquire that portion of the Common Stock Preemptive Shares being offered equal to its percentage ownership of the outstanding Common Stock immediately preceding the issuance of the Preemptive Shares. If any transaction specified by the Maker in any such notice shall not be consummated within one hundred twenty (120) days from the date Series A Preferred of such notice, the Corporation Company shall again comply with be deemed to have irrevocably offered to sell to the provisions holders of the Series A Preferred a sufficient number of shares of such capital stock so that the holders of the Series A Preferred, if such holders elects to acquire such shares as hereinafter set forth, shall be capable of acquiring the same percentage of such shares as the percentage of Common Stock beneficially owned (directly or obtainable upon conversion of the Series A Preferred) by such holders immediately prior to the proposed issuance on a Fully Diluted basis. In the event any such offer is accepted, in whole or in part, by the holders of the Series A Preferred, the Company shall sell such shares to holders of the Series A Preferred for the consideration and on the precise terms set forth in the Company's notice (given under the first two sentences of this paragraph). In the event that one or more holders of the Series A Preferred elects not to, or fails to, exercise its rights under this Section 3.5 with respect 10 within the twenty (20) day period, then the Company may issue the remaining shares of capital stock offered to, but not purchased by, such holders of the Series A Preferred, to third persons but only for the same consideration set forth in the Company's notice (given under the first two sentences of this paragraph) and no later than ninety (90) days after the expiration of such transaction, and twenty day period. The closing for such transaction shall take place as proposed by the Holder shall again have preemptive rights hereunder Company with respect to the transactionshares of capital stock proposed to be issued, regardless at which closing the Company shall deliver certificates for the shares of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant to capital stock in the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation respective names of the transaction proposed by holders of the MakerSeries A Preferred against receipt of the consideration therefor. (c) The restrictions contained inNotwithstanding any other provision hereof, and the preemptive rights granted under, to holders of Series A Preferred by this Section 3.5 10 shall not apply to: (i) shares of Common Stock issued upon conversion of this Note; (ii) shares of capital stock of the Maker issued in a public offering occurring after the date hereof that results in aggregate gross proceeds to the Maker of at least Fifty Million Dollars ($50,000,000); or (iii) shares of Common Stock issued upon the exercise or conversion of outstanding options, warrants or other Common Stock equivalents in existence on the Issuance Date. The rights granted to the Holder under this Section 3.5 may be waived terminate with respect to any Preemptive Shares by a written waiver executed by share of Series A Preferred upon the Holderconversion or redemption of such share of Series A Preferred in accordance with the provisions hereof or in the Articles Supplementary.

Preemptive Rights. 3.1 The Company shall not issue, sell or exchange, agree to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, (a) Except as set forth in Section 3.5(c), the Maker shall not issue or sell any shares of its Common Stock Stock, (b) any other equity securities of the Company, including, without limitation, shares of preferred stock, (c) any option, warrant or other securitiesright to subscribe for, purchase or otherwise acquire any equity securities of the Company, (d) any debt securities convertible into equity securities of the Company, or (e) any rights or options other equity linked security other than pursuant to purchase Common Stock or other securities, or any debt or shares convertible into or exchangeable for Common Stock or other securities, whether now or hereafter authorized and whether unissued or in the treasury Section 3.7 hereof (collectively, “Preemptive Shares”the "OFFERED SECURITIES"), unless unless, in each such case, the Holder Company shall have first have been given the right to acquire, at a price no less favorable than that at which such Preemptive Shares are to be offered to others, a portion of the Preemptive Sharescomplied with this Section 3. The Company shall, as provided in Section 3.5(b). (b) The Maker shall give the Holder prior soon as reasonably practicable, deliver to each holder of Preferred Stock a written notice of any proposed issuance or intended issuance, sale described in Section 3.5(aor exchange of Offered Securities (the "OFFER"), including which Offer shall (a) identify and describe the Offered Securities, (b) describe the price at and other terms upon which such securities the Offered Securities are to be offered and the time period for the offeringissued, sold or exchanged, and the Holder shall have thirty (30) days from the giving of such notice within which to elect to acquire that number or amount of the Preemptive Shares equal Offered Securities to be 6 issued, sold or exchanged, (c) identify the product persons or entities (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (d) include an offer to issue and sell to or exchange with such holder of the total number of Preemptive Shares being offered and a fraction, determined as of the time immediately prior to the issuance of the Preemptive Shares, the numerator of which is equal to the sum of Preferred Stock (i) a pro rata portion of the Offered Securities determined by dividing the aggregate number of shares of Common Stock then held by such holder of Preferred Stock (giving effect to the conversion of all shares of Preferred Stock then held by such holder of Preferred Stock) by the total number of shares of Common Stock then outstanding as a result of (giving effect to the conversion of this Noteall outstanding shares of Preferred Stock including Preferred Stock issuable upon exercise of all outstanding warrants for the purchase thereof) (the "BASIC AMOUNT"), and (ii) any additional portion of the Offered Securities attributable to the Basic Amounts of other holders of Preferred Stock as such holder shall indicate it will purchase or acquire should one or more of the other holders of Preferred Stock subscribe for less than their Basic Amounts (the "UNDERSUBSCRIPTION AMOUNT"). 3.2 To accept an Offer, in whole or in part, a holder of Preferred Stock must deliver a written notice to the Company prior to the 20th day following the date of delivery of the Offer, setting forth the portion of such holder's Basic Amount that such holder elects to purchase and, if such holder shall elect to purchase all of its Basic Amount, the Undersubscription Amount (if any) that such holder elects to purchase (the "NOTICE OF ACCEPTANCE"). If the Basic Amounts subscribed for by all holders of Preferred Stock are less than the total of all of the Basic Amounts, then each holder of Preferred Stock who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, that if the Undersubscription Amounts subscribed for exceed the difference between the total of all of the Basic Amounts and the Basic Amounts subscribed for (the "AVAILABLE UNDERSUBSCRIPTION AMOUNT"), each holder of Preferred Stock who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Undersubscription Amount subscribed for by such holder bears to the total Undersubscription Amounts subscribed for by all holders of Preferred Stock, subject to rounding by the Board of Directors to the extent it deems reasonably necessary. 3.3 The Company shall have ninety (90) days from the expiration of the period set forth in Section 3.2 above to issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by the holders of Preferred Stock (the "REFUSED SECURITIES"), but only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable, to the acquiring person or persons or less favorable to the Company than those set forth in the Offer. 3.4 In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 3.3 above), then each holder of Preferred Stock may, at its sole option and in its sole discretion, reduce the number or amount of shares the Offered Securities specified in its Notice of Common Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such holder elected to purchase pursuant to Section 3.2 above multiplied by a fraction, (a) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell 7 or exchange (including Offered Securities to be issued or sold to holders of Preferred Stock into which this Note could be converted, pursuant to Section 3.2 above prior to such reduction) and (b) the denominator of which is equal shall be the original amount of the Offered Securities. In the event that any holder of Preferred Stock elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the resulting reduced number or amount of the Offered Securities unless and until such securities have again been offered to the sum holders of (x) Preferred Stock in accordance with Section 3.1 above. 3.5 Upon the number closing of shares of Common Stock then outstandingthe issuance, (y) the number of shares of Common Stock into which this Note could be converted, and (z) the number of shares of Common Stock issuable upon conversion sale or exercise exchange of all outstanding optionsor less than all of the Refused Securities, warrants and other rights for the purchase holders of capital stock of Preferred Stock shall acquire from the Company, and all outstanding shares the Company shall issue to such holders, the number or amount of all series Offered Securities specified in the Notices of preferred stock (such number Acceptance, as reduced pursuant to Section 3.4 above if the holders of Preemptive Shares being referred to herein as Preferred Stock have so elected, upon the “Common Stock Preemptive Shares”)terms and conditions specified in the Offer. The Holder may acquire that portion purchase by holders of Preferred Stock of any Offered Securities is subject in all cases to the Common Stock Preemptive Shares being offered equal to its percentage ownership of the outstanding Common Stock immediately preceding the issuance of the Preemptive Shares. If any transaction specified preparation, execution and delivery by the Maker Company and such holders of a purchase agreement relating to such Offered Securities reasonably satisfactory in any form and substance to such notice holders and their respective counsel. 3.6 Any Offered Securities not acquired by the holders of Preferred Stock in accordance with Section 3.5 above or other persons in accordance with Section 3.3 above may not be issued, sold or exchanged until they are again offered to the holders of Preferred Stock under the procedures specified in this Section 3. 3.7 The term "Offered Securities" shall not be consummated within one hundred twenty (120) days from the date of such notice, the Corporation shall again comply with the provisions of this Section 3.5 with respect to such transaction, and the Holder shall again have preemptive rights hereunder with respect to the transaction, regardless of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant to the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of the transaction proposed by the Maker. (c) The restrictions contained in, and preemptive rights granted under, this Section 3.5 shall not apply toinclude: (i) shares of Common Stock issued upon conversion of this Note; (ii) shares of capital stock of the Maker issued in a public offering occurring after the date hereof that results in aggregate gross proceeds to the Maker of at least Fifty Million Dollars ($50,000,000); or (iii) shares of Common Stock issued upon the exercise or conversion of outstanding options, warrants or other Common Stock equivalents in existence on the Issuance Date. The rights granted to the Holder under this Section 3.5 may be waived with respect to any Preemptive Shares by a written waiver executed by the Holder.

Preemptive Rights. (a) Except From the Second Closing Date and for so long as set forth in Section 3.5(c), the Maker shall Investors collectively beneficially own (assuming conversion of all shares of Preferred Stock into Common Stock) not issue or sell any less than 10.0% of the total number of shares of Common Stock outstanding from time to time, in the event the Company proposes to issue any capital stock of any kind (including any Common Stock, preferred stock, warrants, options or other securities, securities or any rights or options to purchase Common Stock or other securities, or any debt or shares units comprising securities convertible into or exchangeable for Common Stock or preferred stock or rights to acquire the same) of the Company, other than (1) pursuant to an employee or non-management director stock option plan, stock bonus plan, stock purchase plan or other management equity program or plan, (2) pursuant to any merger, share exchange or acquisition pursuant to which shares of Common Stock are exchanged for, or issued upon cancellation or conversion of, equity securities of an entity engaged primarily in, or to acquire assets primarily for use in, the business conducted by the Company and the Subsidiaries or a business reasonably related to the business conducted by the Company and the Subsidiaries, or (3) securities issuable upon exercise of previously issued warrants, options or other rights to acquire capital stock or upon conversion of previously issued securities convertible into capital stock, then the Company shall: (i) deliver to the Investors written notice setting forth in reasonable detail (1) the terms and provisions of the securities proposed to be issued (the "Proposed Securities"); (2) the price and other terms of the proposed sale of such securities, whether now or hereafter authorized ; (3) the amount of such securities proposed to be issued; and whether unissued or (4) such other information as the Investors may reasonably request in order to evaluate the proposed issuance; and (ii) offer to issue to the Investors in the treasury (collectively, “Preemptive Shares”), unless the Holder shall first have been given the right to acquire, at a price no less favorable than that at which such Preemptive Shares are to be offered to others, aggregate a portion of the Preemptive Shares, as provided in Section 3.5(b). (b) The Maker shall give the Holder prior written notice of any proposed issuance or sale described in Section 3.5(a), including the price at which such securities are to be offered and the time period for the offering, and the Holder shall have thirty (30) days from the giving of such notice within which to elect to acquire that number of the Preemptive Shares Proposed Securities equal to the product of the total number of Preemptive Shares being offered and a fraction, percentage determined as of the time immediately prior to the issuance of the Preemptive Shares, the numerator of which is equal to the sum of (i) the number of shares of Common Stock then outstanding as a result of the conversion of this Note, and (ii) the number of shares of Common Stock into which this Note could be converted, and the denominator of which is equal to the sum of by dividing (x) the number of shares of Common Stock then outstandingbeneficially owned by the Purchasers (assuming conversion of all shares of Preferred Stock into Common Stock, by (y) the total number of shares of Common Stock into which this Note could be converted, and (z) the number of shares of Common Stock issuable upon conversion or then outstanding. The Investors must exercise of all outstanding options, warrants and other rights for the purchase rights hereunder within ten business days after receipt of capital stock such notice from the Company. (b) Upon the expiration of the offering period described above, or if the Investors shall default in paying for or purchasing the Proposed Securities on the terms offered by the Company, the Company shall thereafter be free to sell such Proposed Securities that the Investors have not elected to purchase during the ninety days following such expiration on terms and all outstanding shares of all series of preferred stock (such number of Preemptive Shares being referred conditions no more favorable to herein as the “Common Stock Preemptive Shares”)purchasers thereof than those offered to the Investors. The Holder may acquire that portion of the Common Stock Preemptive Shares being Any Proposed Securities offered equal to its percentage ownership of the outstanding Common Stock immediately preceding the issuance of the Preemptive Shares. If any transaction specified or sold by the Maker in any Company after such notice shall not 90 day period must be consummated within one hundred twenty (120) days from reoffered to the date of such notice, the Corporation shall again comply with the provisions of Investor pursuant to this Section 3.5 with respect to such transaction, and the Holder shall again have preemptive rights hereunder with respect to the transaction, regardless of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant to the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of the transaction proposed by the Maker5.18. (c) The restrictions contained in, and election by the Investors not to exercise preemptive rights granted under, this Section 3.5 shall not apply to: (i) shares of Common Stock issued upon conversion of this Note; (ii) shares of capital stock of the Maker issued in a public offering occurring after the date hereof that results in aggregate gross proceeds to the Maker of at least Fifty Million Dollars ($50,000,000); or (iii) shares of Common Stock issued upon the exercise or conversion of outstanding options, warrants or other Common Stock equivalents in existence on the Issuance Date. The rights granted to the Holder under this Section 3.5 may be waived with 5.18 in any one instance shall not affect their rights (other than in respect of a reduction in its percentage holdings) as to any Preemptive Shares by a written waiver executed subsequent proposed issuance. Any sale of such securities by the HolderCompany without first giving the Investors the rights described in this Section 5.18 shall be void and of no force and effect, and the Company shall not register such sale or issuance on the books and records of the Company.

Preemptive Rights. The Company shall, prior to any proposed issuance by the Company of any of its securities (a) Except as set forth in Section 3.5(cother than debt securities with no equity feature), offer to each Major Investor by written notice the Maker shall not issue or sell any shares right, for a period of Common Stock or other securities, or any rights or options to purchase Common Stock or other securities, or any debt or shares convertible into or exchangeable for Common Stock or other securities, whether now or hereafter authorized and whether unissued or in ten (10) business days (the treasury (collectively, “Preemptive SharesPurchase Period”), unless the Holder shall first have been given the right to acquire, purchase for cash at a price no less favorable than that at which such Preemptive Shares are an amount equal to be offered to others, a portion of the Preemptive Shares, as provided in Section 3.5(b). (b) The Maker shall give the Holder prior written notice of any proposed issuance or sale described in Section 3.5(a), including the price at or other consideration for which such securities are to be offered issued, a number of such securities so that, after giving effect to such issuance (and the time period conversion, exercise and exchange into or for (whether directly or indirectly) shares of Common Stock of all such securities that are so convertible, exercisable or exchangeable), such Major Investor will continue to maintain his, her or its same proportionate equity ownership in the offering, and Company as of the Holder shall have thirty (30) days from the giving date of such notice within which to elect to acquire that number (treating each Major Investor, for the purpose of such computation, as the Preemptive Shares equal to the product holder of the total number of Preemptive Shares being offered and a fraction, determined as of the time immediately prior to the issuance of the Preemptive Shares, the numerator of which is equal to the sum of (i) the number of shares of Common Stock then outstanding which would be issuable to such Major Investor upon conversion, exercise and exchange of all securities (including but not limited to the Series D Preferred Stock and Series E Preferred Stock) held by such Major Investor on the date such offer is made, that are convertible, exercisable or exchangeable into or for (whether directly or indirectly) shares of Common Stock and assuming the like conversion, exercise and exchange of all such other securities held by other Persons); provided, however, that the rights of the Major Investors pursuant to this Section 6 shall not apply to securities issued (A) upon conversion of any shares of Series D Preferred Stock and Series E Preferred Stock, (B) as a result 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) pursuant to subscriptions, warrants, options, convertible securities, or other rights which are listed in Schedule I as being outstanding on the date of this Agreement, (D) solely in consideration for the acquisition (whether by merger or otherwise) by the Company or any of its subsidiaries of all or substantially all of the conversion stock or assets of this Noteany other entity which is not an Affiliate of an Investor and provided that the transaction is approved by the Required Preferred Investors as required pursuant to the Company’s Sixth Amended and Restated Certificate of Incorporation (as amended and restated or supplemented from time to time, the “Charter”), (E) pursuant to a firm commitment underwritten public offering, (F) to directors, officers, employees or consultants of the Company pursuant to the Company’s stock plans (or securities issued or issuable upon exercise thereof) as may be approved from time to time by the Compensation Committee of the Company’s Board of Directors and, if applicable, by the Required Preferred Investors as required pursuant to the Charter, and (iiG) upon the exercise of any security described in paragraphs (A) through (F) of this proviso. The Company’s written notice to the Major Investors shall describe the securities proposed to be issued by the Company and specify the number, price and payment terms. Each Major Investor may accept the Company’s offer as to the full number of securities offered to him, her or it or any lesser number, by written notice thereof given to the Company prior to the expiration of the aforesaid ten (10) business day period, in which event the Company shall promptly sell and such Major Investor shall promptly, and in any event within fifteen (15) business days, buy, upon the terms specified, the number of securities agreed to be purchased by such Major Investor. Subject to the last sentence of this Section 6, the Company shall be free at any time prior to 120 days after the date of its notice of offer to the Major Investors, to offer and sell to any third party or parties the remainder of such securities proposed to be issued by the Company (including but not limited to the securities not agreed by the Major Investors to be purchased by them), at a price and on payment terms no less favorable to the Company than those specified in such notice of offer to the Major Investors. If such third party sale or sales are not consummated within such 120-day period, however, the Company shall not sell such securities as shall not have been purchased within such period without again complying with this Section 6. Notwithstanding anything herein to the contrary, for purposes of this Section 6, in the event that, if not for this sentence, the amount of any securities that Summit would be entitled to purchase pursuant to this Section 6 in connection with any issuance of securities by the Company is greater than the amount of securities that Xxxx would be entitled to purchase in connection with such issuance, then the amount of securities that the Major Investors shall be entitled to purchase in connection with such issuance shall be calculated as if Xxxx owned the same number of shares of Common Stock into which this Note could be (on an as converted, and the denominator as exercised basis) as Summit; provided that, with respect to such calculation, Summit’s ownership of which is equal to the sum of (x) the number of any shares of Common Series E Preferred Stock then outstanding, (y) the number of shares of Common Stock into which this Note could be converted, and (z) the number of shares of or Common Stock issuable upon conversion or exercise of all outstanding options, warrants and other rights for the purchase of capital stock of the Company, and all outstanding shares of all series of preferred stock (such number of Preemptive Shares being referred to herein as the “Common Stock Preemptive Shares”). The Holder may acquire that portion of the Common Stock Preemptive Shares being offered equal to its percentage ownership of the outstanding Common Stock immediately preceding the issuance of the Preemptive Shares. If any transaction specified by the Maker in any such notice thereof) shall not be consummated within one hundred twenty (120) days from counted for purposes of determining Xxxx’x new Pro Rata Fraction. Notwithstanding anything in this Agreement to the date contrary, any Major Investor shall be permitted to assign its rights under this Section 6 to an Affiliate of such noticeMajor Investor, provided that any such assignee not already a party to this Agreement shall agree in writing with the Corporation shall again comply with Company and such Major Investor, for the benefit of all of the Investors, as a condition to such assignment, to be bound by all of the provisions of this Agreement to the same extent as if such transferee were such Major Investor. Notwithstanding anything to the contrary in this Section 3.5 with respect 6, in the event (x) the Company proposes to such transactionissue securities for the purpose of financing an acquisition by the Company or any of its subsidiaries of any other entity whose principal place of business is located in a European country, which opportunity is identified and brought to the attention of the Company by Advent, and the Holder shall again have preemptive rights hereunder with respect (y) any Major Investor does not exercise its right to the transaction, regardless of whether any purchase such stockholder had previously exercised or failed to exercise such rights. Any purchase amount of securities pursuant as it is entitled to the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of the transaction proposed by the Maker. (c) The restrictions contained in, and preemptive rights granted under, this Section 3.5 shall not apply to: (i) shares of Common Stock issued upon conversion of this Note; (ii) shares of capital stock of the Maker issued in a public offering occurring after the date hereof that results in aggregate gross proceeds to the Maker of at least Fifty Million Dollars ($50,000,000); or (iii) shares of Common Stock issued upon the exercise or conversion of outstanding options, warrants or other Common Stock equivalents in existence on the Issuance Date. The rights granted to the Holder purchase under this Section 3.5 6 within the Preemptive Purchase Period, then, for a period of ten (10) business days after the end of the Preemptive Purchase Period, Advent will have the right to purchase for cash up to fifty percent (50%) of the total amount of securities that all Major Investors have chosen not to purchase, which may be waived with respect exercised by written notice thereof given to the Company prior to the expiration of the aforesaid ten (10) business day period, in which event the Company shall promptly sell and Advent shall promptly, and in any Preemptive Shares event within fifteen (15) business days, buy, upon the terms specified, the number of securities agreed to be purchased by Advent; provided that in the event there is a written waiver executed by dispute among the HolderMajor Investors regarding the fulfillment of condition (x), such dispute shall be determined in the sole judgment of the chief executive officer of the Company.

Preemptive Rights. (a) Except as set forth in Section 3.5(c), the Maker The Company covenants and agrees that it shall not issue or sell any shares of Common Stock capital stock of the Company, or bonds, certificates of indebtedness, debentures or other securities, or any rights or options to purchase Common Stock or other securities, or any debt or shares securities convertible into or exchangeable for Common Stock or other securities, whether now or hereafter authorized and whether unissued or in the treasury (collectively, “Preemptive Shares”), unless the Holder shall first have been given the right to acquire, at a price no less favorable than that at which such Preemptive Shares are to be offered to others, a portion capital stock of the Preemptive SharesCompany or options, warrants or rights carrying any rights to purchase capital stock or convertible or exchangeable securities of the Company, provided that the Company may issue or sell Stock, or any other securities or rights described above (i) in a transaction described in -27- paragraph (e) of this Section 7.2, or (ii) in an offering other than a Qualified Public Offering, as provided in determined by the Board of Directors of the Company, subject to the limitations of paragraphs (b) and (c) of this Section 3.5(b)7.2. (b) The Maker Board of Directors may authorize the issuance of additional shares of Stock for sale at such price, in such amount and on such other terms as it shall give the Holder prior written notice in its sole discretion deem appropriate, provided that: (i) no shares of any proposed issuance or sale described in Section 3.5(a), including the price at which such securities are to Stock may be offered and or sold by the time period Company at a per share price (after making appropriate adjustments for permitted stock splits, stock dividends or recapitalizations, if any) that is lower than the offering, and per share price paid by the Holder shall have thirty (30) days from the giving Investor for shares of such notice within which to elect to acquire that number of the Preemptive Shares equal Preferred Stock pursuant to the product of the total number of Preemptive Shares being offered and a fraction, determined as of the time immediately prior to this Agreement; and (ii) the issuance of the Preemptive Sharesproposed shares would not cause the percentage ownership of shares of Stock held or deemed to be held by the Investor to fall below ten percent (10%) (as adjusted for stock splits, stock dividends, reclassifications, recapitalizations or similar events) of the total shares of Stock issued and outstanding. For purposes of this Section 7.2(b)(ii), the numerator Investor shall be deemed to hold any shares of which is equal Common Stock held by it on the date hereof and any of the Preferred Shares which, in each case, it may subsequently transfer to any other party (including an affiliate of the sum Investor). (c) In the event that the Board of Directors desires to issue additional shares of Stock pursuant to paragraph (b), the Company shall follow the procedures set forth below: (i) The Secretary of the Company shall give notice in writing to each of the stockholders of record of the Company (the "Offer") specifying the number of shares of Common Stock then outstanding as (the "Offered Securities"), the per share price (the "Sales Price") and the other terms on which the Board proposes to sell such Stock. The Notice shall invite each stockholder to subscribe, on a result pro rata basis in proportion to such stockholder's record ownership, by sending a written notice to the Company within twenty-one (21) days of the conversion date of this Note, and the mailing of such Offer (which date shall be specified therein) for any or all of the Offered Securities; (ii) If the stockholders or any of them shall within such twenty-one (21) day period subscribe for all or any of the Offered Securities, the Company shall within five (5) days of the expiration of the twenty-one (21) day subscription period allocate such shares (or so many of them as shall be subscribed for) to or among the subscribing stockholders; (iii) If any of the Offered Securities are not subscribed for in accordance with sub-paragraph (ii), the Secretary of the Company shall, within seven (7) days of the expiration of the twenty-one (21) day subscription period, send a second notice in writing (a "Second Offer") to those stockholders who have tendered subscriptions for the Offered Securities. Such Second Offer shall set forth the name of and the number of shares allocated to each stockholder pursuant to subparagraph (ii) above and shall invite each such stockholder to subscribe in writing to the Company for all or any portion of Common Stock into the remaining shares within fourteen (14) days of the date of such Second Offer (which this Note could date shall be convertedspecified therein). Such remaining shares shall be allocated in the amounts subscribed for or, if over subscribed, pro rata to any subscribers therefor within three (3) days of the expiration of the fourteen (14) day subscription period in the manner described in subparagraph (ii); (iv) Promptly after any allocation(s) pursuant to the provisions of sub-paragraph (ii) or (iii), the Secretary of the Company shall give notice of such allocation(s) (an "Allocation Notice") to the stockholders to whom the Offered Securities (or so many of them as aforesaid) shall have been allocated and shall specify in such notice the place and time (being not earlier than thirty (30) and not later than one hundred and five (105) days after the date of the notice, which date shall be specified therein) at which the closing of the sale of the Offered Securities so allocated shall occur. During the thirty (30) day period after the date of the notice, the Investor may solicit subscriptions for any shares not subscribed for by the stockholders and such subscriptions shall, subject to subparagraph (v) below, be accepted by the Company unless the Board of Directors determines in good faith that acceptance of such subscriptions is not in the best interest of the Company. Subject to the provisions of subparagraphs (v) and (vi) below, the Company shall be bound to transfer the shares comprised in an Allocation Notice to the purchasers named therein at the time and place therein and to any subscribers procured by the Investor, if any, specified therein against receipt by the Company of the Sale Price in respect of each such shares, which Sales Price shall be paid by wire transfer of immediately available funds or by bank or cashier's check, and the denominator stockholders subscribing for such shares and any subscribers procured by the Investor shall be bound to acquire the shares subscribed for on the terms specified in the Offer at the time and place of which is equal to the sum closing as specified in the Allocation Notice; (v) If any of the Offered Securities are not subscribed for by the stockholders or subscribers procured by the Investor in accordance with the foregoing provision of this paragraph (xc), the Company may, in the discretion of the Board of Directors, (A) accept subscriptions previously tendered, (B) withdraw the offering, (C) offer either (X) the balance of the Offered Securities not subscribed for or (Y) all of the Offered Securities (provided, however, that if all such shares are offered, the Investor shall have the right to purchase a number of shares of Common Stock then outstanding, (y) the number of shares of Common Stock into which this Note could be converted, and (z) the number of shares of Common Stock issuable upon conversion or exercise of all outstanding options, warrants and other rights for the purchase of capital stock of the Company, and all outstanding shares of all series of preferred stock (such number of Preemptive Shares being referred to herein as the “Common Stock Preemptive Shares”). The Holder may acquire that not less than its pro rata portion of the Common Stock Preemptive Shares being shares offered, in either case to any other person who is willing to purchase the same at a price and on other terms not less favorable to the Company than the terms on which such shares were offered equal to its percentage ownership of existing stockholders, provided always that the outstanding Common Stock immediately preceding the issuance of the Preemptive Shares. If any transaction specified by the Maker in closing any such notice sale shall not occur and the Sale Price in respect of each of such shares shall be consummated paid to the Company within a period of one hundred twenty and five (120105) days from the date of the Allocation Notice. (vi) In the event that the Board of Directors, in its sole discretion, accepts subscriptions for such noticelesser number of shares, rescinds the offer of the Offered Securities or offers either some or all of such shares to another purchaser, the Corporation Company shall again comply notify all the stockholders of the Company in writing no later than ninety (90) days after the date of the Allocation Notice. In the event any Offer is withdrawn, the offering of the Offered Securities shall be terminated with regard to the stockholders and any subsequent issuance of Stock shall be considered a new issuance thereof, subject in all respect to the provisions of this Section 3.5 with respect to such transaction, and the Holder shall again have preemptive rights hereunder with respect to the transaction, regardless of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant to the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of the transaction proposed by the Maker7.2. (cd) The restrictions contained in, and preemptive rights granted under, of the Investor under this Section 3.5 7.2 shall not apply toterminate immediately upon the closing of a Qualified Public Offering or if the Investor ceases to hold at least 10% of the issued and outstanding Common Stock (assuming conversion of all shares of Preferred Stock then outstanding). (e) The following transactions shall be excluded from the provisions of this Section 7.2: (i1) shares the issuance of Common Stock issued upon conversion stock options in accordance with Section 4.18 and the issuance of this Note; (ii) shares of capital stock of the Maker issued in a public offering occurring after the date hereof that results in aggregate gross proceeds to the Maker of at least Fifty Million Dollars ($50,000,000); or (iii) shares of Common Stock issued upon the exercise or of such options; (2) the issuance of shares of Common Stock to be issued upon the exercise of options outstanding at the Closing; (3) the issuance of shares of Common Stock upon the conversion of outstanding optionsthe Class A Preferred Stock; (4) the issuance of shares of Stock to be issued upon the conversion or exercise of any securities or rights issued in compliance with paragraphs (b) and (c) or paragraph (e) of this Section 7.2; (5) the issuances of Stock in connection with stock splits or stock dividends permitted by Section 4.14; (6) the issuance of Stock in an underwritten offering to the public pursuant to an effective registration statement under the Securities Act, warrants or other with an underwriter reasonably acceptable to the Investor, in connection with which (A) the Company has previously offered to the Investor the opportunity to purchase a number of shares sufficient to maintain its then percentage ownership of Common Stock equivalents in existence (assuming conversion of all shares of Preferred Stock then outstanding), based on the Issuance Date. The rights granted number of shares recommended to be offered to the Holder under this Section 3.5 may be waived with respect to any Preemptive Shares by a written waiver executed public by the Holderunderwriter concerned, at a price determined by such underwriter (which is not more than the proposed price to the public), (B) the sale price to the public is at least $7.50 per share of Stock, as adjusted for permitted stock splits, dividends, reclassifications, recapitalizations and similar events and (C) gross proceeds to the Company from the offering (including any shares purchased by the Investor under clause (A) above) are at least $5 million (a "Qualified Public Offering").

Preemptive Rights. (a) Except as set forth in Section 3.5(cAt any time prior to the IPO (and not including the IPO itself), the Maker Company shall not issue or sell any shares of Common Stock or other securitiesunless, or any rights or options prior to purchase such issuance, the Company offers such shares of Common Stock or other securities, or any debt or shares convertible into or exchangeable for Common Stock or other securities, whether now or hereafter authorized to each Holder at the same price per share and whether unissued or in upon the treasury (collectively, “Preemptive Shares”), unless the Holder shall first have been given the right to acquire, at a price no less favorable than that at which such Preemptive Shares are to be offered to others, a portion of the Preemptive Shares, as provided in Section 3.5(b)same terms and conditions. (b) The Maker shall give the Holder prior written notice of any proposed issuance or sale described in Section 3.5(a), including the price at which such securities are to be offered and the time period for the offering, and the Holder shall have thirty (30) days from the giving of such notice within which to elect to acquire that number of the Preemptive Shares equal to the product of the total number of Preemptive Shares being offered and a fraction, determined as of the time immediately Not less than 20 Business Days prior to the issuance closing of such offering (the “Preemptive SharesRights Period”), the numerator of which is equal Company shall send a written notice to the sum of (i) each Holder stating the number of shares of Common Stock then outstanding as a result to be offered (the “Preemptive Rights Shares”), the proposed closing date and the price and terms on which it proposes to offer such shares of Common Stock. (c) Within 10 Business Days after the receipt of the conversion notice pursuant to Section 5.3(b), each Holder may elect, by written notice to the Company to purchase shares of this NoteCommon Stock of the Company, at the price and on the terms specified in such notice, up to an amount equal to the product obtained by multiplying (iix) the total number of shares of Common Stock to be issued by (y) a fraction, (A) the numerator of which is the number of shares of Common Stock into which this Note could be converted, of such class held by such Holder and (B) the denominator of which is equal to the sum of (x) the number of total outstanding shares of Common Stock. (d) The closing of any such purchase of shares of Common Stock then outstanding, (yby such Holder pursuant to this Section 5.3(d) shall occur concurrently with the number of shares of Common Stock into which this Note could be converted, and (z) the number of shares of Common Stock issuable upon conversion or exercise of all outstanding options, warrants and other rights for the purchase of capital stock closing of the Companyproposed issuance, and all outstanding shares of all series of preferred stock as applicable, subject to adjustment to obtain any necessary Governmental Approval. (such number of Preemptive Shares being referred to herein as e) Upon the “Common Stock Preemptive Shares”). The Holder may acquire that portion of the Common Stock Preemptive Shares being offered equal to its percentage ownership of the outstanding Common Stock immediately preceding the issuance expiration of the Preemptive SharesRights Period, the Company shall be entitled to sell such Preemptive Rights Shares that the Holders have not elected to purchase for a period ending 120 days following the expiration of the Preemptive Rights Period on terms and conditions not materially more favorable to the purchasers thereof than those offered to the Holders. If any transaction specified Any Preemptive Rights Shares to be sold by the Maker in any such notice shall not be consummated within one hundred twenty (120) days from Company following the date expiration of such notice, period must be reoffered to the Corporation shall again comply with Holders pursuant to the provisions terms of this Section 3.5 with respect to such transaction, and the Holder shall again have preemptive rights hereunder with respect to the transaction, regardless of whether 5.3 or if any such stockholder had previously exercised or failed agreement to exercise such rights. Any purchase of securities pursuant to the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of the transaction proposed by the MakerTransfer is terminated. (c) The restrictions contained in, and preemptive rights granted under, this Section 3.5 shall not apply to: (i) shares of Common Stock issued upon conversion of this Note; (ii) shares of capital stock of the Maker issued in a public offering occurring after the date hereof that results in aggregate gross proceeds to the Maker of at least Fifty Million Dollars ($50,000,000); or (iii) shares of Common Stock issued upon the exercise or conversion of outstanding options, warrants or other Common Stock equivalents in existence on the Issuance Date. The rights granted to the Holder under this Section 3.5 may be waived with respect to any Preemptive Shares by a written waiver executed by the Holder.

Preemptive Rights. (a) Except as set forth in Section 3.5(c)If at any time after the date hereof and prior to the consummation of a Qualified Public Offering the Company wishes to issue any Common Units or any options, warrants or other rights to acquire Common Units or any notes or other securities convertible or exchangeable into Common Units (all such Common Units and other rights and securities, collectively, the Maker "Equity Equivalents") ------------------ to any Person or Persons, the Company shall not promptly deliver a notice of intention to sell or otherwise issue or sell (the "Company's Notice of Intention to -------------------------------- Sell") to each Member setting forth a description and the number of the Equity ---- Equivalents and any shares other securities proposed to be issued and the proposed purchase price and terms of Common Stock or other securitiessale. Upon receipt of the Company's Notice of Intention to Sell, or any rights or options to purchase Common Stock or other securities, or any debt or shares convertible into or exchangeable for Common Stock or other securities, whether now or hereafter authorized and whether unissued or in the treasury (collectively, “Preemptive Shares”), unless the Holder each Member shall first have been given the right to acquireelect to purchase, at a the price no less favorable than that at which such Preemptive Shares are and on the terms stated in the Company's Notice of Intention to be offered to othersSell, a portion of the Preemptive Shares, as provided in Section 3.5(b). (b) The Maker shall give the Holder prior written notice of any proposed issuance or sale described in Section 3.5(a), including the price at which such securities are to be offered and the time period for the offering, and the Holder shall have thirty (30) days from the giving of such notice within which to elect to acquire that number of the Preemptive Shares Equity Equivalents equal to the product of the total number of Preemptive Shares being offered and a fraction, determined as of the time immediately prior to the issuance of the Preemptive Shares, the numerator of which is equal to the sum of (i) such Member's proportionate ownership of the then outstanding number of shares Common Units (calculated on a fully-diluted basis assuming all holders of then outstanding warrants, options and convertible securities of the Company which are convertible or exercisable on such date and which have pre-emptive rights with respect to the applicable issuance of Equity Equivalents have converted such convertible securities or exercised such warrants or options; provided that, for -------- all purposes of this Section 7, at any time, no then Unvested Units shall be deemed to be part of the "outstanding number of Common Stock then outstanding Units" as a result of the conversion of this Note, and such time) held by all Persons multiplied by (ii) the number of shares Equity Equivalents proposed to be issued (as described in the applicable Company's Notice of Common Stock into which this Note could be converted, and the denominator of which is equal Intention to Sell). Notwithstanding anything contained herein to the sum of (x) contrary, if the number of shares of Common Stock then outstanding, (y) the number of shares of Common Stock into which this Note could be converted, and (z) the number of shares of Common Stock issuable upon conversion or exercise of all outstanding options, warrants and other rights for the purchase of capital stock of the Company, and all outstanding shares of all series of preferred stock (such number of Preemptive Shares being referred to herein Company is issuing Equity Equivalents together as the “Common Stock Preemptive Shares”). The Holder may acquire that portion of the Common Stock Preemptive Shares being offered equal to its percentage ownership of the outstanding Common Stock immediately preceding a unit with the issuance of any debt or other equity securities of the Preemptive SharesCompany or any of its Subsidiaries, then any Member who elects to purchase such Equity Equivalents pursuant to this Section 7 must also purchase a corresponding proportion of such other debt or equity securities, all at the proposed purchase price and on terms of sale as specified in the applicable Company's Notice of Intention to Sell. If any transaction specified Such election shall be made by the Maker in any such electing Member by written notice shall not be consummated within one hundred twenty (120) days from the date of such notice, the Corporation shall again comply with the provisions of this Section 3.5 with respect to such transaction, and the Holder shall again have preemptive rights hereunder with respect to the transaction, regardless of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant to the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of the transaction proposed by the Maker. Company within ten (c10) The restrictions contained in, and preemptive rights granted under, this Section 3.5 shall not apply to: (i) shares of Common Stock issued upon conversion of this Note; (ii) shares of capital stock of the Maker issued in a public offering occurring business days after the date hereof that results in aggregate gross proceeds to the Maker of at least Fifty Million Dollars ($50,000,000); or (iii) shares of Common Stock issued upon the exercise or conversion of outstanding options, warrants or other Common Stock equivalents in existence on the Issuance Date. The rights granted to the Holder under this Section 3.5 may be waived with respect to any Preemptive Shares by a written waiver executed by the Holder.receipt

Preemptive Rights. (a) Except In connection with any issuance or sale of additional Shares by the Company (other than any issuance pursuant to Section 2.01 or as set forth provided in the last sentence of this Section 3.5(c2.03(a)), the Maker each Major Stockholder shall not issue or sell any shares of Common Stock or other securities, or any rights or options to purchase Common Stock or other securities, or any debt or shares convertible into or exchangeable for Common Stock or other securities, whether now or hereafter authorized and whether unissued or in the treasury (collectively, “Preemptive Shares”), unless the Holder shall first have been given the right to acquirepurchase, on the same terms and at a the same purchase price no less favorable than that at which such Preemptive Shares are to be per Share offered to otherseach offeree, a portion percentage of such additional Shares equal to (i) the sum of such Major Stockholder’s Shares (including Shares issuable upon the exercise or conversion of outstanding securities) and any Shares previously received pursuant to this Section 2.03 divided by (ii) the total number of Shares outstanding immediately prior to such issuance or sale. The foregoing preemptive rights shall not apply to (i) the issuance of securities in connection with acquisition or strategic partnership transactions approved by the Board of Directors, (ii) the issuance of Shares in connection with a Qualified IPO, (iii) the issuance of securities pursuant to stock splits, stock dividends or similar transactions, (iv) the issuance of Shares upon conversion of any Preferred Stock, (v) the issuance of securities pursuant to currently outstanding options, warrants, notes or other rights to acquire securities of the Preemptive SharesCompany, as provided (vi) the issuance of securities to financial institutions or lessors in connection with commercial credit arrangements, equipment financings or similar transactions that are approved by the Board of Directors and are for other than primarily equity financing purposes or (vii) the issuance of additional Senior Preferred pursuant to Section 3.5(b)1.3 of the Senior Preferred Purchase Agreement. (b) The Maker Company shall give the Holder prior deliver written notice (a “Preemptive Notice”) to each Major Stockholder having a preemptive right pursuant to paragraph (a) above (a “Preemptive Stockholder”) of any proposed issuance or sale described of additional Shares by the Company (except as otherwise provided in Section 3.5(a2.03(a)), including the price at which applicable purchase price, aggregate amount offered, number and class of Shares available to such securities are to be offered Preemptive Stockholder, name(s) of proposed offeree(s), proposed closing date and the time period for the offering, issuance thereof (which shall be not less than forty–five (45) days from the date such notice is deemed to have been given pursuant to Section 7.03) and any other material terms and conditions of the Holder shall have offer. Within thirty (30) days from the giving date that the Preemptive Notice is deemed to have been given pursuant to Section 7.03, any Preemptive Stockholder wishing to exercise its preemptive right concerning such additional Shares shall deliver written notice to the Company setting forth the amount of such notice within Shares which such Preemptive Stockholder commits to elect purchase (which may be for all or any portion of such Shares offered to acquire that such Preemptive Stockholder). Each Preemptive Stockholder so exercising its right under this Section 2.03 shall be entitled and obligated to purchase the number of Shares specified in such Preemptive Stockholder’s notice on the terms and conditions set forth in the Preemptive Notice. If such Preemptive Stockholder is unable to purchase such Shares at the time and date set forth in such Preemptive Notice, after using commercially reasonable efforts to do so, solely because of its failure to receive governmental approvals or permits required to transfer funds to be used for the purchase of such Shares, such Preemptive Stockholder may, by notice to the Company before such time and date, delay the time and date of purchasing such Shares by up to fifteen (15) days, provided that the purchase price for such Shares shall increase at an annualized rate equal to the product of the total number of Preemptive Shares being offered and a fraction, determined as of the time immediately prior to the issuance of the Preemptive Shares, the numerator of which is equal to the sum of (i) the number prime rate reported in the Eastern Edition of shares of Common Stock then outstanding as a result of The Wall Street Journal on the conversion of this Note, and date such payment was originally due (the “Prime Rate”) plus (ii) three percent (3%) from the number date such payment was originally due until the date of shares of Common Stock into actual payment. Any additional Shares for which this Note could a Preemptive Stockholder does not exercise its preemptive right may be converted, issued or sold by the Company free and the denominator of which is equal to the sum of (x) the number of shares of Common Stock then outstanding, (y) the number of shares of Common Stock into which this Note could be converted, and (z) the number of shares of Common Stock issuable upon conversion or exercise of all outstanding options, warrants and other rights for the purchase of capital stock clear of the Company, and all outstanding shares of all series of preferred stock (such number of Preemptive Shares being referred to herein as the “Common Stock Preemptive Shares”). The Holder may acquire that portion of the Common Stock Preemptive Shares being offered equal to its percentage ownership of the outstanding Common Stock immediately preceding the issuance rights of the Preemptive Shares. If any transaction specified Stockholders pursuant to this Section 2.03, provided that such additional Shares are issued or sold by the Maker in any such notice shall not be consummated Company within one hundred twenty (120) days from of the date of the Preemptive Notice for a price per Share no less than the price per Share set forth in the Preemptive Notice, and otherwise on other terms and conditions (including aggregate amount offered) that, taken as a whole, are no less favorable to the Company than those set forth in the Preemptive Notice. If the Company does not sell such noticeadditional Shares within such 120-day period, then the Corporation shall again comply with the provisions of preemptive right provided in this Section 3.5 with respect to 2.03 shall be revived and such transaction, and the Holder shall again have preemptive rights hereunder with respect additional Shares may not be offered unless first reoffered to the transaction, regardless of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant to the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of the transaction proposed by the MakerPreemptive Stockholders in accordance herewith. (c) The restrictions contained in, and preemptive rights granted under, In lieu of paying any non-cash consideration that is included in the purchase price for any additional Shares subject to this Section 3.5 2.03, a Preemptive Stockholder electing to purchase any such Shares pursuant to this Section 2.03 shall not apply to: pay a cash amount per Share equal to the fair market value per Share of such non-cash consideration. The fair market value per Share of such non-cash consideration shall be determined either (i) shares in good faith by the Board of Common Stock issued upon conversion of this Note; Directors, or (ii) shares otherwise by an independent appraiser (the “Appraiser”) selected in good faith by the Company, provided that the Appraiser shall be duly qualified, internationally recognized and approved by the Board of capital stock Directors. The valuation of such non-cash consideration by the Appraiser or Board of Directors, as the case may be, shall be final and binding on the Company and the Preemptive Stockholders absent manifest error. The Company shall include with each Preemptive Notice, if applicable, a copy of the Maker issued in a public offering occurring after the date hereof that results in aggregate gross proceeds to the Maker of at least Fifty Million Dollars ($50,000,000); orAppraiser’s valuation report, signed by such Appraiser. (iiid) shares of Common Stock issued upon the exercise or conversion of outstanding options, warrants or other Common Stock equivalents in existence on the Issuance Date. The rights granted to the Holder under provided in this Section 3.5 2.02 may not be waived with respect to assigned or transferred by any Preemptive Shares by Stockholder; provided that (i) a written waiver executed by the HolderPreemptive Stockholder that is a venture capital fund may assign or transfer such rights to an affiliated venture capital fund and (ii) a Preemptive Stockholder may assign or transfer such rights to a subsidiary, parent, partner, limited partner, former partner, member, former member, Affiliate or stockholder of such Preemptive Stockholder.

Preemptive Rights. Subject to the terms and conditions specified in this Section 3.18, each time the Company proposes to offer any shares of, or securities convertible into, or exchangeable or exercis- able for shares, of its capital stock (whether newly issued or treasury stock), the Company shall make an offering of such securities to each Investor in accordance with the following provisions: (a) Except as set forth The Company shall deliver a notice ("Notice") to each Investor stating (i) its bona fide intention to offer such securities, (ii) the number of such securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such securities. (b) By written notification received by the Company, within twenty (20) calendar days after giving of the Notice, each Investor (including its affiliates) may elect to purchase or obtain, at the price and on the terms specified in Section 3.5(c)the Notice, up to that portion of such securities which equals the Maker shall not issue or sell any proportion that the number of shares of Common Stock or other securitiesissued and held, or any issuable upon conversion of the Warrants then held, by such Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion of all convertible securities and the exercise of all outstanding options, warrants or rights or options to purchase Common Stock or other securities, or any debt or shares securities convertible into or exchangeable exercisable for shares of Common Stock or other securities, whether now or hereafter authorized and whether unissued or in the treasury (collectively, “Preemptive Shares”), unless the Holder shall first have been given the right to acquire, at a price no less favorable than that at which such Preemptive Shares are to be offered to others, a portion of the Preemptive Shares, as provided in Section 3.5(b). (b) The Maker shall give the Holder prior written notice of any proposed issuance or sale described in Section 3.5(a), including the price at which such securities are to be offered and the time period for the offering, and the Holder shall have thirty (30) days from the giving of such notice within which to elect to acquire that number of the Preemptive Shares equal to the product of the total number of Preemptive Shares being offered and a fraction, determined exercisable as of the time immediately prior date of such Notice) ("Pro Rata Share"). The Company shall promptly, in writing, inform each Investor and holder of Series A Preferred Stock (a "Series A Holder") that purchases all of such securities available to it (a "Fully-Exercising Investor") of any other Investor's or Series A Holder's failure to do likewise. During the issuance ten-day period following delivery of such information, each Fully-Exercising Investor shall be entitled to purchase that portion of such securities for which Investors were entitled to subscribe but which were not subscribed by the Preemptive Shares, the numerator of Investors and Series A Holders which is equal to the sum proportion that the number of (i) shares of Common Stock issued and held, or issuable upon conversion of the Warrants then held, by such FullyExercising Investor bears to the total number of shares of Common Stock then outstanding (assuming full conversion of all convertible securities (including the Series A Preferred Stock)) and the exercise of all options, warrants or rights to purchase Common Stock or other securities convertible into or exercisable for shares of Common Stock) then held by all Fully-Exercising Investors ("Pro- portional Share"). If any Investor or Series A Holder fails to purchase its Pro Rata Share or Proportional Share, any affiliate of such Investor may purchase the shares available to, but not purchased by, such Investor. (c) If all securities referred to in the Notice which Investors are entitled to obtain pursuant to Section 3.18(b) are not elected to be obtained as provided in Section 3.18(b) hereof, the Company may, during the sixty (60) day period following the expiration of the last notice provision provided in Section 3.18(b) hereof, offer the remaining unsubscribed portion of such securities to any person or persons at a price not less than, and upon terms no more favorable to the offeree than those specified in the Notice. If the Company does not enter into an agreement for the sale of such securities within such period, or if such agreement is not consummated within sixty (60) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such securities shall not be offered unless first re-offered to the Investors in accordance herewith. (d) The preemptive right in this Section 3.18 shall not be applicable to: (i) Shares of Common Stock issuable or issued to employees, advisors, consultants or outside directors of the Company directly or pursuant to a stock option plan or restricted stock plan approved by the Board of Directors of the Company, the total number of such shares not to exceed 130,200 (appropriately adjusted for stock splits, stock dividends or similar recapitalizations); (ii) Common Stock, or securities convertible into, or exchangeable or exercisable for shares of Common Stock, issued or issuable in connection with bona fide research, licensing or corporate partnering relationships, in connection with equipment lease financing, or in connection with non-convertible debt financing with institutional lenders, in each case approved by a majority of the Board of Directors of the Company including both of the Series A Board Members; provided, that such issuances of Common Stock are for other than primarily equity financing purposes; (iii) Common Stock issued or issuable upon conversion of the Warrants or shares of Series A Preferred Stock; (iv) Common Stock issued or issuable in connection with a merger or consolidation as a result of which the conversion holders of this Note, and the Company's outstanding securities immediately prior to the consummation of such transaction hold voting securities in excess of fifty percent (ii50%) of the number voting power of shares of the surviving or resulting entity; or (v) Common Stock into which issued in an Initial Public Offering. (e) No holder shall be entitled to exercise any preemptive right provided for in this Note could be converted, and Section 3.18 after the denominator effective date of which is equal the registration statement filed with respect to the sum Company's Initial Public Offering. (f) The preemptive rights set forth in this Section 3.18 may be assigned or transferred by an Investor to a transferee or assignee of (x) the number any of its shares of Common Stock then outstanding, (y) the number of shares of Common Stock into which this Note could be converted, and (z) the number of shares of Common Stock issuable upon conversion or exercise of all outstanding options, warrants and other rights for the purchase of capital stock of the Company, provided such transferee or assignee agrees in writing to be bound by and all outstanding shares of all series of preferred stock (such number of Preemptive Shares being referred subject to herein as the “Common Stock Preemptive Shares”). The Holder may acquire that portion of the Common Stock Preemptive Shares being offered equal to its percentage ownership of the outstanding Common Stock immediately preceding the issuance of the Preemptive Shares. If any transaction specified by the Maker in any such notice shall not be consummated within one hundred twenty (120) days from the date of such notice, the Corporation shall again comply with the provisions terms and conditions of this Section 3.5 with respect to such transaction, and the Holder shall again have preemptive rights hereunder with respect to the transaction, regardless of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant to the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of the transaction proposed by the MakerAgreement. (c) The restrictions contained in, and preemptive rights granted under, this Section 3.5 shall not apply to: (i) shares of Common Stock issued upon conversion of this Note; (ii) shares of capital stock of the Maker issued in a public offering occurring after the date hereof that results in aggregate gross proceeds to the Maker of at least Fifty Million Dollars ($50,000,000); or (iii) shares of Common Stock issued upon the exercise or conversion of outstanding options, warrants or other Common Stock equivalents in existence on the Issuance Date. The rights granted to the Holder under this Section 3.5 may be waived with respect to any Preemptive Shares by a written waiver executed by the Holder.

Preemptive Rights. (a) Except as set forth in Section 3.5(c)In the event that the Company proposes to issue any Preferred Stock, the Maker shall not issue or sell any shares of Common Stock or any other equity securities, or including, without limitation, warrants, options and other convertible securities, the Company shall give not less than 30 days' prior written notice to each Investor and Additional Stockholder holding Preferred Stock representing, on an as-converted basis, at least 5% of the Company's outstanding Common Stock (after giving effect to the exercise of any rights outstanding warrants or options to purchase Common Stock or other securities, or any debt or shares convertible into or exchangeable for Common and conversion in full of all Preferred Stock or other securities, whether now or hereafter authorized securities that are convertible into Common Stock) ("Eligible Holders") setting forth the terms and whether unissued or conditions of such proposed issuance (the "Issuance Notice"). Each Eligible Holder shall have the preemptive right to purchase the securities so offered on the terms and conditions set forth herein and in the treasury Issuance Notice by giving written notice to the Company within 15 days after receipt of the Issuance Notice (collectively, “the "Preemptive Shares”Election Period"), unless the . Each electing Eligible Holder shall first have been given the right to acquire, at a price no less favorable than that at which such Preemptive Shares are to be offered to others, a purchase all or any portion of the Preemptive Shares, as provided in Section 3.5(b). (b) The Maker shall give the Holder prior written notice its pro rata share of any proposed issuance or sale described in Section 3.5(a), including the price at which such securities are to be offered and the time period for the offering, and the Holder shall have thirty (30) days from the giving of such notice within which to elect to acquire that number 75% of the Preemptive Shares offered securities. For purposes of this Section 5.09, an Eligible Holder's pro rata share shall equal to the product of the total number of Preemptive Shares being offered and a fraction, determined as of the time immediately prior to the issuance of the Preemptive Shares, the numerator of which is equal to the sum ratio of (i) the aggregate number of shares of Common Stock then outstanding as a result of the conversion of this Note, and held by such Eligible Holder (ii) the number of shares of Common Stock into which this Note could be converted, and the denominator of which is equal to the sum of (x) the number of shares of Common Stock then outstanding, (y) the number of shares of Common Stock into which this Note could be converted, and (z) the number of including all shares of Common Stock issuable upon conversion of Preferred Stock held by such Eligible Holder and issuable upon exercise of any outstanding warrants or exercise options for Common Stock or Preferred Stock held by such Eligible Holder) to (ii) the total number of outstanding shares of Common Stock held by all Eligible Holders (including all shares of Common Stock issuable upon conversion of all outstanding options, warrants Preferred Stock and other rights for the purchase of capital stock of the Company, and all outstanding shares of all series of preferred stock (such number of Preemptive Shares being referred to herein as the “securities convertible into Common Stock Preemptive Shares”)and issuable upon exercise of any outstanding warrants or options for Common Stock or Preferred Stock) as determined immediately prior to the proposed issuance. The Holder Company may acquire that portion of issue and sell all offered securities not purchased by the Common Stock Preemptive Shares being offered equal to its percentage ownership of Eligible Holders on the outstanding Common Stock immediately preceding terms and conditions set forth in the issuance Issuance Notice within 120 days after the expiration of the Preemptive Shares. If Election Period; provided, however, that any transaction specified by offered securities not sold within such 120-day period or any offered securities that are proposed to be sold on terms and conditions less favorable to the Maker Company than those set forth in any such notice shall not be consummated within one hundred twenty (120) days from the date of such notice, the Corporation Issuance Notice shall again comply be subject to the procedure set forth in this Section 5.09 prior to issuance. An Eligible Holder may assign its rights pursuant to this Section 5.09 to one or more of its Affiliates, subject only to compliance with applicable securities laws. (b) Notwithstanding the foregoing, the provisions of this Section 3.5 with respect to such transaction, and the Holder shall again have preemptive rights hereunder with respect to the transaction, regardless of whether any such stockholder had previously exercised or failed to exercise such rights. Any purchase of securities pursuant to the exercise of preemptive rights shall be consummated simultaneously with, and shall be conditioned upon, consummation of the transaction proposed by the Maker. (c5.09(a) The restrictions contained in, and preemptive rights granted under, this Section 3.5 shall not apply to: (i) shares any issuance to non-Affiliates of the Company of equity securities for consideration other than cash which are approved by a Series B Director or such issuances which in the aggregate are less than 2% of the outstanding Common Stock issued upon conversion of this Notethe Company calculated on a fully-diluted, as-converted, as-exercised basis; (ii) shares of capital stock of the Maker issued in a public offering occurring after the date hereof that results in aggregate gross proceeds to the Maker of at least Fifty Million Dollars ($50,000,000); or (iii) shares of Common Stock issued upon the exercise (or conversion of outstanding options, warrants or other rights to purchase Common Stock equivalents in existence on Stock) issued or to be issued to employees, officers or directors of, or consultants or advisors to, the Issuance Date. The rights granted Company or any subsidiary pursuant to the Holder under this Section 3.5 may be waived with respect to any Preemptive Shares by a written waiver executed stock purchase plans, stock option plans, or other compensation plans or arrangements that are approved by the HolderBoard of Directors; (iii) any equity securities issued pursuant to a Qualified Public Offering; and (iv) any equity securities issued (A) in connection with any stock split, stock dividend or recapitalization by the Company, so long as immediately after such stock split, stock dividend or recapitalization the Investors own the same relative proportion of the Company's equity securities as immediately prior to such stock split, stock dividend or recapitalization, or (B) upon conversion of the Series A Preferred Stock or the Series B Preferred Stock.