Common use of Preemptive Rights Clause in Contracts

Preemptive Rights. (a) If the Company proposes to issue or otherwise Transfer any Securities to any Person, then the Company shall make the offer to sell and otherwise comply with the requirements set forth in this Section 3. Notwithstanding the foregoing, (A) the Company may Transfer Securities, and any right, title or interest therein, without making the offer to sell set forth in this Section 3 in connection with (i) an Initial Public Offering, (ii) the issuance of up to 200,000 shares of Common Stock to management and employees of the Company pursuant to the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides for the issuance of Securities exclusively to directors, officers or employees of the Company, (iii) the issuance of shares of Common Stock pursuant to the Employment Agreement and the Warrants or (iv) an issuance of Securities in consideration for and upon consummation of (x) a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority of the issued and outstanding shares of Voting Stock of the surviving entity or (y) an acquisition of assets or stock by the Company so long as, in either the case of (x) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations pursuant to this Section 3 shall terminate upon an Initial Public Offering. For purposes of this Section 3, "Voting Stock" shall mean stock of the Company of any class or series entitled to vote generally in the election of directors of the Company.

Preemptive Rights. (a) If Subject to clause (f) below, the officers of the Company shall not solicit capital contributions or issue any Interests (or Units) in the Company therefor unless it first delivers to each Initial Member (each such Initial Member being referred to in this Section 2.8 as a “Buyer”) a written notice (the “Notice of Proposed Issuance”) specifying the type and amount of such capital contributions and Interests (or Units) that Company then intends to issue therefor (the “Offered Interests”), all of the material terms, including the price (cash or non-cash) upon which Company proposes to issue or otherwise Transfer the Offered Interests and stating that the Buyers shall have the right to purchase the Offered Interests in the manner specified in this Section 2.8 for the same price per share and in accordance with the same terms and conditions specified in such Notice of Proposed Issuance, provided, that if such price consists of non-cash consideration, a Buyer may purchase the Offered Interest with the same type and amount of non-cash consideration [***] denotes language for which XXXXXX Telematics, Inc. has requested confidential treatment pursuant to the rules and regulations of the Securities Exchange Act of 1934, as amended. Confidential portions have been omitted and have been filed separately with the Securities and Exchange Commission. described in such Notice of Proposed Issuance or, may instead (at the election of such Buyer), pay for such Offered Interests with the cash equivalent of such price. (b) During the [***] Business Day period commencing on the date Company delivers to all of the Buyers the Notice of Proposed Issuance (the “[***] Period”), the Buyers shall have the option to purchase up to all of the Offered Interests at the same price and upon the same terms and conditions specified in the Notice of Proposed Issuance. Each Buyer electing to purchase Offered Interests must give written notice of its election to Company prior to the expiration of the [***] Period. (c) Each Buyer shall have the right to purchase up to that percentage of the Offered Interests equal to the Percentage Interest in the Company then held by such Buyer. The amount of such Offered Interests that each Buyer is entitled to purchase under this Section 2.8 shall be referred to as its “Proportionate Share.” (d) In the event that any Securities Buyer elects not to any Personpurchase its full Proportionate Share of the Offered Interests pursuant to Sections 2.8 (a), then (b) and (c) above, the Company shall make deliver to all of the offer to sell and otherwise comply with other Buyers a written notice (the requirements “Oversubscription Notice”) specifying the total number of Offered Interests not so purchased (the “Remaining Offered Interests”) within [***] Business Days following the expiration of the [***] Period set forth in Section 2.8(b) above. Each such Buyer shall have a right of oversubscription to purchase up to the balance of such Offered Interests not so purchased at the same price and on the same terms and conditions set forth in the original Notice of Proposed Issuance. Each such Buyer who receives an Oversubscription Notice must exercise its right of oversubscription by giving the Company written notice of its election during the [***] Business Day period following its receipt of the Oversubscription Notice. If, as a result thereof, such oversubscription elections exceed the total number of the Offered Interests available in respect to such oversubscription privilege, the oversubscribing Buyers shall be cut back with respect to oversubscriptions on a pro rata basis in accordance with their relative Proportionate Shares or as they may otherwise agree among such oversubscribing Buyers. (e) If all of the Offered Interests have not been purchased by the Buyers pursuant to the foregoing provisions, then General Manager shall have the right, until the expiration of [***] consecutive days commencing on the first day immediately following the expiration of the [***] Period, to issue the Offered Interests not purchased by the Buyers at not less than, and on terms no more favorable in any material respect to the purchaser(s) thereof than, the price and terms specified in the Notice of Proposed Issuance. If such remaining Offered Interests are not issued within such period and at such price and on such terms, the right to issue in accordance with the Notice of Proposed Issuance shall expire and the provisions of this Section 3. Agreement shall continue to be applicable to the Offered Interests. (f) Notwithstanding the foregoing, (A) the Company may Transfer Securities, and any right, title or interest therein, without making the offer to sell set forth rights described in this Section 3 in connection 2.8 shall not apply with (i) an Initial Public Offering, (ii) respect to the issuance of up to 200,000 shares of Common Stock to management and employees of the Company pursuant to the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides for the issuance of Securities exclusively to directors, officers or employees of the Company, (iii) the issuance of shares of Common Stock pursuant to the Employment Agreement and the Warrants or (iv) an issuance of Securities in consideration for and upon consummation of (x) a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority of the issued and outstanding shares of Voting Stock of the surviving entity or (y) an acquisition of assets or stock by the Company so long as, in either the case of (x) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations pursuant to this Section 3 shall terminate upon an Initial Public OfferingExcluded Securities. For purposes of this Section 32.8, "Voting Stock" “Excluded Securities” shall mean stock any Interests in the Company (i) issued in connection with the [***] whether by the [***] or otherwise, which has been Approved by the Board and/or Members, to the extent that Approval of the Company Board and/or Approval of any class the Members, including [***] denotes language for which XXXXXX Telematics, Inc. has requested confidential treatment pursuant to the rules and regulations of the Securities Exchange Act of 1934, as amended. Confidential portions have been omitted and have been filed separately with the Securities and Exchange Commission. Supermajority Approval of the Board and/or Supermajority Approval of the Members, is required hereunder, (ii) issued as part of an [***] and (iii) issued to financial institutions, financial syndicates or series entitled lessors in connection with bona fide commercial credit arrangements, equipment financings, or similar transactions for primarily other than equity financing purposes not exceeding cumulatively (including all prior issuances of Interests (or Units) that are Excluded Securities pursuant to vote generally this Section 2.8(f)(iii)) in the election of directors aggregate [***] of the Companyaggregate Percentage Interests then outstanding and which have been Approved by the Board and/or Members, to the extent that Supermajority Approval or Approval of the Board and/or Supermajority Approval or Approval of the Members is required hereunder.

Preemptive Rights. (a) If In the event that the Company proposes to issue or otherwise Transfer any Securities to any Person, then the Company shall make the offer to and sell and otherwise comply with the requirements set forth in this Section 3. Notwithstanding the foregoing, (A) the Company may Transfer Securities, and any right, title or interest therein, without making the offer to sell set forth in this Section 3 in connection with additional Units other than (i) an Initial Public Offering, as a result of a Member failing to make a capital contribution pursuant to the provisions set forth herein and/or in the Joint Venture Agreement; (ii) the issuance of up to 200,000 shares of Common Stock to management and employees of the Company pursuant to the Company's 1997 Equity and Performance Incentive Plan a stock split or any other incentive plan which provides for the issuance of Securities exclusively to directors, officers or employees of the Companystock dividend, (iii) pursuant to the exercise of any option, warrant or convertible security the issuance of shares which may be approved by the Board of Common Stock pursuant to the Employment Agreement and the Warrants or Directors, (iv) an issuance in connection with financing transactions with lending institutions which are approved by the Board of Securities in consideration Directors, or (v) pursuant to a public offering by the Company of capital stock pursuant to due authorizations from appropriate authorities for and upon consummation sales of securities to the public (x) a merger with respect to which "Public Offering"), each Member of the holders of Voting Stock immediately Company shall have the right, prior to such merger beneficially own sale of Units by the Company, to purchase a percentage of such Units equal to their proportionate interest in the Company (the "Pro Rata Amount") at the proposed issuance price, which right shall be exercisable by written notice to the Company (a "Purchaser Notice") given within ten (10) days after receipt by each Member of written notice of such proposed issuance. If a Member shall fail to respond to the Company within the ten-day notice period, such failure shall be regarded as a rejection of its right to participate in the purchase of the Units. Each Member may also indicate in his or its Purchaser Notice, if he or it so elects, his or its desire to participate in the purchase of the Units in excess of his or its Pro-Rata Amount. If any Member declines to purchase his or its Pro Rata Amount of the Units (such Pro Rata Amount being hereinafter called the "Excess Units"), then those Members who indicated in their Purchaser Notice a desire to participate in the purchase of the Excess Units shall be deemed to have agreed to purchase the Excess Units in proportion to their respective Pro Rata Amounts. Unless the Members elect to purchase all of the Units, the Company may issue all (but not less than a majority all) of the issued and outstanding shares of Voting Stock of Units which the surviving entity or (y) an acquisition of assets or stock Members have not elected to purchase, at the price specified by the Company so long asin its notice to the Members, in either provided that such issuance is bona fide and made within one hundred twenty (120) days of the case date of (x) or (y), such transaction has been approved notice. The closing of any purchase by the affirmative vote of at least one director appointed by Nu-Tech if, Members under this Section 11 shall be held at the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations pursuant to this Section 3 shall terminate upon an Initial Public Offering. For purposes of this Section 3, "Voting Stock" shall mean stock principal office of the Company at 10:00 A.M. local time three (3) business days after being notified of any class the closing by the Company, or series entitled at such other time and place as the parties to vote generally the transaction may agree upon. At such closing, the Members participating in the election of directors of purchase shall deliver, in cash or by official bank check, payment in full for such Units and all parties to the Companytransaction shall execute such additional documents as are otherwise appropriate.

Preemptive Rights. (a) If the Company proposes to issue or otherwise Transfer any Securities to any Person, then the Company shall make the offer to sell and otherwise comply with the requirements Except as set forth in this subparagraph (c) below, the Company and its Subsidiaries will not issue, sell or otherwise transfer for consideration to any CHS Group member (an "Issuance"), at any time after the date hereof and prior to an initial Public Offering, any Common Stock, Preferred Stock or other class of Stockholder Shares or any class of capital stock of the Company's Subsidiaries unless, at least 15 days and not more than 60 days prior to such issuance, the Company notifies each other Stockholder in writing of the Issuance (including the price, the purchaser thereof and the other terms thereof) and grants to each other Stockholder, the right (the "Right") to subscribe for and concurrently purchase such Common Stock, Preferred Stock, any other class of Stockholder Shares or any class of capital stock of the Company's Subsidiaries which are issued to any CHS Group member (collectively, the "Preemptive Stock") in the same proportion as purchased by CHS Group member at the same price and on the same terms as issued in the Issuance such that, after giving effect to the Issuance and exercise of the Right, the percentage of the Preemptive Stock immediately following such issuance owned by such holder shall equal the percentage of the outstanding Stockholder Shares or any class of capital stock of the Company's Subsidiaries as was owned by such holder prior to the Issuance on a fully diluted basis (but excluding any Stockholder Shares or any class of capital stock of the Company's Subsidiaries which are not then fully vested and, in the case of options, warrants or other rights to acquire capital stock, immediately exercisable, convertible or exchangeable for Stockholder Shares or any class of capital stock of the Company's Subsidiaries issued in such Issuance), or such lesser amount designated by such holder. Any Issuance will be for fair market value as determined by the Board in good faith. If the CHS Group member that is purchasing Preemptive Stock is required generally to also purchase other securities of the Company, then such participating member in the Right shall also be required to purchase the same strip of securities (on the same terms and conditions) that such CHS Group member is required to purchase. The Right may be exercised by such holder at any time by written notice to the Company that is received by the Company within 10 days after receipt by such holder of the notice from the Company referred to above. The closing of the purchase and sale pursuant to the exercise of the Right shall occur at least 10 days after the Company receives notice of the exercise of the Right and concurrently with the closing of the Issuance. (b) For the purposes of Section 3. 7(a), the Stockholder Shares or any class of capital stock of the Company's Subsidiaries of an employee of the Company or any of its Subsidiaries shall be the Purchased Equity (as defined in the Executive Securities Agreements) only, if any, held by such individual pursuant his Executive Securities Agreement. (c) Notwithstanding the foregoing, the Right shall not apply to (Ai) issuances of equity securities (or securities convertible into or exchangeable for, or options to purchase, such equity securities), pro rata to all holders of Stockholder Shares, as a dividend on, subdivision of or other distribution in respect of, the Company may Transfer Securities, and any right, title Stockholder Shares in accordance with the Company's certificate of incorporation or interest therein, without making the offer to sell set forth in this Section 3 (ii) warrants issued in connection with (i) an Initial Public Offering, (ii) the issuance of up to 200,000 shares of Common Stock to management and employees of the Company pursuant to any debt financing by the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides for the issuance of Securities exclusively to directors, officers or employees of the Company, . (iiid) the issuance of shares of Common Stock pursuant to the Employment Agreement and the Warrants or (iv) an issuance of Securities in consideration for and upon consummation of (x) a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority of the issued and outstanding shares of Voting Stock of the surviving entity or (y) an acquisition of assets or stock by the Company so long as, in either the case of (x) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations pursuant to this Section 3 shall terminate upon an Initial Public Offering. For purposes The provisions of this Section 3, "Voting Stock" shall mean stock 7 will terminate upon the consummation of the Company of any class or series entitled to vote generally in the election of directors of the Companyan initial Public Offering.

Preemptive Rights. (a) If Except for issuance of equity securities of the Company proposes or options or other rights to issue acquire equity securities of the Company: (i) in connection with a registered primary public offering; (ii) to employees of the Company or otherwise Transfer any Securities its Subsidiaries; (iii) to any Personlender in connection with the incurrence of Indebtedness by the Company or any of its Subsidiaries; (iv) as payment of all or a portion of the purchase price of any business or assets thereof acquired by the Company or any of its Subsidiaries; or (v) upon exercise of any option or other right described in any of clauses (i) through (iv) above or any other option or right to acquire equity securities issued by the Company; if the Company authorizes the issuance or sale of any equity securities of the Company or any securities containing options or rights to acquire any equity securities of the Company (other than as a dividend on the outstanding Common Stock), then the Company shall make the first offer to sell to each Investor Holder, each XXX Xxxxxx and otherwise comply with each Management Holder a portion of such stock or securities equal to the requirements percentage of Stockholder Shares owned by such Person. Each Person 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 Persons. (b) In order to exercise its purchase rights hereunder, a Stockholder 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 stock and securities offered to the Stockholders is not fully subscribed by such holders, the remaining stock and securities shall be reoffered by the Company to the holders purchasing their full allotment pro rata (based on the number of Stockholder Shares owned by such holders) upon the terms set forth in this Section 3. Notwithstanding paragraph, except that such holders must give written notice of its election to purchase such reoffered stock and securities within 10 days after receipt of such reoffer. (c) Upon the foregoingexpiration of the offering periods described above, (A) the Company may Transfer Securities, and any right, title or interest therein, without making the offer shall be entitled to sell set forth in this Section 3 in connection with (i) an Initial Public Offering, (ii) such stock or securities which the issuance of up Stockholders have not elected to 200,000 shares of Common Stock to management purchase during the 90 days following such expiration on terms and employees of the Company pursuant conditions no more favorable to the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides for the issuance of Securities exclusively to directors, officers or employees of the Company, (iii) the issuance of shares of Common Stock pursuant to the Employment Agreement and the Warrants or (iv) an issuance of Securities in consideration for and upon consummation of (x) a merger with respect to which the holders of Voting Stock immediately prior purchasers thereof than those offered to such merger beneficially own not less than a majority of the issued and outstanding shares of Voting Stock of the surviving entity holders. Any stock or (y) an acquisition of assets securities offered or stock sold by the Company so long as, in either after such 90-day period must be reoffered to the case of (x) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors Stockholders who have purchased their full allotment pursuant to Section 4 hereof and paragraph 7(b) pro rata (based on the approval number of the transaction Stockholder Shares owned by such director is required pursuant to Section 5 hereof Stockholders). (a "Qualifying Acquisition"d) and (B) any The rights or obligations pursuant to this Section 3 paragraph 7 shall terminate upon an Initial the consummation of a Public Offering. For purposes of this Section 3, "Voting Stock" shall mean stock of the Company of any class or series entitled to vote generally in the election of directors of the Company.

Preemptive Rights. Provided that by January 8, 2010, the Company has received the Aggregate Purchase Price and provided further that 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 as of September 9, 2009), still beneficially own at least 66% of the 550,055 shares of the Company’s Series B Preferred Stock purchased pursuant to the Agreement, if the Company issues options or warrants at a stated exercise price, except with respect to an Exempt Issuance, the Buyer shall have the right to purchase common shares at the same exercise price. Provided that by January 8, 2010, the Company has received the Aggregate Purchase Price, if the Company shall issue shares, options or warrants in exchange for services, or other assets, except with respect to an Exempt Issuance, the Buyer shall have the right to purchase an equivalent number of shares at the price of fifteen cents ($0.15) per share for a period of one (1) year following the date that shares are issued to third parties. ”Exempt Issuance” means the issuance of (a) If the Company proposes to issue or otherwise Transfer any Securities to any Person, then the Company shall make the offer to sell and otherwise comply with the requirements set forth in this Section 3. Notwithstanding the foregoing, (A) the Company may Transfer Securities, and any right, title or interest therein, without making the offer to sell set forth in this Section 3 in connection with (i) an Initial Public Offering, (ii) the issuance of up to 200,000 shares of Common Stock or options to management and employees employees, officers or directors of the Company pursuant to any stock or option plan duly adopted for such purpose, by a majority of the Company's 1997 Equity non-employee members of the Board of Directors or a majority of the members of a committee of non-employee directors established for such purpose, (b) securities upon the exercise or exchange of or conversion of any securities issued pursuant to this Agreement and/or other securities exercisable or exchangeable for or convertible into shares of Common Stock issued and Performance Incentive Plan outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement to increase the number of such securities or any other incentive plan which provides for to decrease the issuance exercise, exchange or conversion price of Securities exclusively such securities, and (c) securities issued pursuant to directors, officers acquisitions or employees strategic transactions approved by a majority of the disinterested directors of the Company, (iii) provided that any such issuance shall only be to a person which is, itself or through its subsidiaries, an operating company in a business synergistic with the issuance of shares of Common Stock pursuant to the Employment Agreement and the Warrants or (iv) an issuance of Securities in consideration for and upon consummation of (x) a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority of the issued and outstanding shares of Voting Stock of the surviving entity or (y) an acquisition of assets or stock by the Company so long as, in either the case of (x) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations pursuant to this Section 3 shall terminate upon an Initial Public Offering. For purposes of this Section 3, "Voting Stock" shall mean stock business of the Company and in which the Company receives benefits in addition to the investment of any class funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or series entitled to vote generally an entity whose primary business is investing in the election of directors of the Companysecurities.

Preemptive Rights. (a) If the Company proposes to issue or otherwise Transfer any Securities to any Person, then the Company shall make the offer to sell and otherwise comply with the requirements Except as set forth in this Section 3subparagraph (b) below, the Company and its Subsidiaries will not issue, sell or otherwise transfer for consideration to the Xxxx Group (an "Issuance") at any time prior to an IPO, any Equity Securities -------- (the "Preemptive Units") unless, at least 30 days and not more than 60 days ---------------- prior to such issuance, the Company notifies each Securityholder in writing of the Issuance (including the price, the purchasers thereof and the other terms thereof) and grants to each Securityholder, the right (the "Right") to subscribe ----- for and purchase such Preemptive Units so issued at the same price and on the same terms as issued in the Issuance such that, after giving effect to the Issuance and exercise of the Right, the Preemptive Units owned by such holder shall represent the same percentage of the outstanding Class A Units and Class L Units as were owned by such holder prior to the Issuance on a fully diluted basis, or such lesser amount designated by such holder. The Right may be exercised by such holder at any time by written notice to the Company received by the Company within 15 days after receipt by such holder of the notice from the Company referred to above. The closing of the purchase and sale pursuant to the exercise of the Right shall occur at least 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 Securityholder may, at its election, pay the purchase price for such additional securities in such property or solely in cash. In the event that any such holder elects to pay cash, the amount thereof shall be determined based on the fair value of the consideration received or receivable by the Company in connection with the Issuance. (b) Notwithstanding the foregoing, the Right shall not apply to issuances of Equity Securities (A) the Company may Transfer Securitiesor securities convertible into or exchangeable for, and any rightor options to purchase, title or interest thereinsuch units), without making the offer pro rata to sell set forth in this Section 3 in connection with (i) an Initial Public Offering, (ii) the issuance of up to 200,000 shares all holders of Common Stock to management and employees Units, as a dividend on, subdivision of or other distribution in respect of, the Company pursuant to Common Units in accordance with the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides for the issuance of Securities exclusively to directors, officers or employees of the Company, LLC Agreement. (iiic) the issuance of shares of Common Stock pursuant to the Employment Agreement and the Warrants or (iv) an issuance of Securities in consideration for and upon consummation of (x) a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority of the issued and outstanding shares of Voting Stock of the surviving entity or (y) an acquisition of assets or stock by the Company so long as, in either the case of (x) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations pursuant to this Section 3 shall terminate upon an Initial Public Offering. For purposes The provisions of this Section 3, "Voting Stock" shall mean stock 6 will terminate upon the consummation of the Company of any class or series entitled to vote generally an IPO (as defined in the election of directors of the CompanySection 8).

Preemptive Rights. (a) If the Company proposes to issue or otherwise Transfer any Securities to any Person, then the Company shall make the offer to sell and otherwise comply with the requirements Except as set forth in this Section 3subparagraph (b) below, the Partnership and the General Partner will not issue, sell or otherwise transfer for consideration to the Xxxx Group or its Affiliates (an "Issuance") at any time -------- prior to an IPO, any Equity Securities or Membership Interests (the "Preemptive ---------- Interests") unless, at least 30 days and not more than 60 days prior to such --------- issuance, the Partnership or the General Partner, as the case may be, notifies each Securityholder in writing of the Issuance (including the price, the purchasers thereof and the other terms thereof) and grants to each Securityholder, the right (the "Right") to subscribe for and purchase such ----- Preemptive Interests so issued at the same price and on the same terms as issued in the Issuance such that, after giving effect to the Issuance and exercise of the Right, the Preemptive Interests owned by such holder shall represent the same percentage of the outstanding Class A Common Units, Class L Common Units and Membership Interests as were owned by such holder prior to the Issuance on a fully diluted basis, or such lesser amount designated by such holder. The Right may be exercised by such holder at any time by written notice to the Partnership and the General Partner, received by the Partnership and the General Partner within 15 days after receipt by such holder of the notice from the Partnership and the General Partner referred to above. The closing of the purchase and sale pursuant to the exercise of the Right shall occur at least 10 days after the Partnership and the General Partner receive notice of the exercise of the Right and concurrently with the closing of the Issuance. In the event that the consideration received by the Partnership and the General Partner in connection with an Issuance is property other than cash, each Securityholder may, at its election, pay the purchase price for such additional securities in such property or solely in cash. In the event that any such holder elects to pay cash, the amount thereof shall be determined based on the fair value of the consideration received or receivable by the Partnership and/or the General Partner in connection with the Issuance. (b) Notwithstanding the foregoing, the Right shall not apply to issuances of equity securities (A) the Company may Transfer Securitiesor securities convertible into or exchangeable for, and any rightor options to purchase, title or interest thereinsuch units), without making the offer pro rata to sell set forth in this Section 3 in connection with (i) an Initial Public Offering, (ii) the issuance of up to 200,000 shares all holders of Common Stock Units, as a dividend on, subdivision of or other distribution in respect of, the Common Units in accordance with the Partnership's Partnership Agreement, nor issuances of equity securities (or securities convertible into or exchangeable for, or options to management and employees purchase, such membership interests), pro rata to all holders of Membership Interests, as a dividend on, subdivision of or other distribution in respect of the Company pursuant to Membership Interests in accordance with the CompanyGeneral Partner's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides for LLC Agreement. (c) The provisions of this paragraph 6 will terminate upon the issuance of Securities exclusively to directors, officers or employees of the Company, (iii) the issuance of shares of Common Stock pursuant to the Employment Agreement and the Warrants or (iv) an issuance of Securities in consideration for and upon consummation of an IPO (x) a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority of the issued and outstanding shares of Voting Stock of the surviving entity or (y) an acquisition of assets or stock by the Company so long as, as defined in either the case of (x) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations pursuant to this Section 3 shall terminate upon an Initial Public Offering. For purposes of this Section 3, "Voting Stock" shall mean stock of the Company of any class or series entitled to vote generally in the election of directors of the Companyparagraph 8).

Preemptive Rights. (a) If The Company hereby grants to each Stockholder so long as such stockholder owns, on a Fully-Diluted Basis, at least 3% of the Common Stock, a preemptive right to purchase such Stockholder’s pro rata share of all or any part of any New Securities (as defined below) which the Company may, from time to time, propose to sell and issue. Such Stockholder’s pro rata share, for purposes of this preemptive right, is a fraction equal to the number of shares of any Common Stock and/or any Preferred Stock (on an “as converted” basis) then held by such Stockholder on a Fully-Diluted Basis divided by the total number of shares of Common Stock and/or Preferred Stock (on an “as converted” basis) of the Company on a Fully-Diluted Basis then outstanding. (b) Except as set forth in the next succeeding sentence, “New Securities” shall mean any shares of capital stock of the Company, including Common Stock, whether now authorized or not, and rights, options or warrants to purchase said shares of Common Stock, and securities of any type whatsoever that are, or may become, convertible into said shares of Common Stock. Notwithstanding the foregoing, “New Securities” does not include (i) securities offered to the public generally pursuant to a registration statement filed with the Commission and declared effective under the Securities Act, (ii) securities issued in the acquisition of another corporation by the Company by merger, purchase of substantially all of the assets or other reorganization or in a transaction approved by the Board of Directors of the Company (the “Board”) and governed by Rule 145 under the Securities Act, (iii) up to 4,075,191 shares (subject to appropriate adjustment for Recapitalization Events) of Common Stock or options exercisable for such Common Stock and up to 1,443,779.71 shares subject to appropriate readjustment for Recapitalization Events) of Series AA Preferred Stock or rights to receive such Series AA Preferred Stock issued to employees pursuant to the Company’s 2004 Omnibus Stock Plan, (iv) shares of Common Stock issued on conversion of outstanding Preferred Stock, (v) stock issued pursuant to any rights or agreements, including without limitation convertible securities, options and warrants, provided that the preemptive rights established by this Section 2.4 shall apply with respect to the initial sale or grant by the Company of interests in its capital stock pursuant to such rights or agreements, (vi) securities issued to a financial institution in connection with a debt financing transaction with such financial institution and approved by the Board, (vii) stock issued in connection with any stock split, stock dividend, recapitalization or reclassification by the Company or (viii) shares of Common Stock or Preferred Stock issued or issuable to employees, directors or consultants of the Company pursuant to a plan or arrangement approved by the Board, (provided that the Board shall also approve the grant of shares of Common Stock or other securities exercisable for such shares of Common Stock in connection therewith). (c) In the event the Company proposes to undertake an issuance of New Securities, it shall give each Stockholder having preemptive rights hereunder written notice of its intention, describing the type of New Securities, and the price and terms upon which the Company proposes to issue or otherwise Transfer the same. Each Stockholder shall have fifteen (15) days from the date of receipt of any such notice to agree to purchase up to such Stockholder’s respective 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 any Personbe purchased. (d) If a Stockholder fails to exercise such preemptive right within said 15-day period, then the Company shall make the offer have ninety (90) days thereafter to sell and otherwise comply with the requirements set forth in this Section 3. Notwithstanding the foregoing, or enter into an agreement (A) the Company may Transfer Securities, and any right, title or interest therein, without making the offer to sell set forth in this Section 3 in connection with (i) an Initial Public Offering, (ii) the issuance of up to 200,000 shares of Common Stock to management and employees of the Company pursuant to the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides for the issuance of Securities exclusively to directors, officers or employees of the Company, (iii) the issuance of shares of Common Stock pursuant to the Employment Agreement and the Warrants or (iv) an issuance of Securities in consideration for and upon consummation of (x) a merger with respect to which the holders sale of Voting Stock immediately prior New Securities covered thereby shall be closed, if at all, within sixty (60) days from the date of said agreement) to sell the New Securities not elected to be purchased by Stockholders at the price and upon the terms no more favorable to the purchasers of such merger beneficially own not less securities than a majority of specified in the issued and outstanding shares of Voting Stock of Company’s notice. In the surviving entity or (y) an acquisition of assets or stock by event the Company so long as, has not sold the New Securities or entered into an agreement to sell the New Securities within said 90-day period (or sold and issued New Securities in either accordance with the case foregoing within sixty (60) days from the date of (x) or (ysaid agreement), the Company shall not thereafter issue or sell any of such transaction has been approved by New Securities, without first offering such securities in the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the manner provided above. (e) The preemptive right to nominate directors pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations pursuant to granted under this Section 3 2.4 shall terminate expire upon an Initial the closing of, and shall not apply to, a Qualified Public Offering. For purposes of this Section 3, "Voting Stock" shall mean stock of the Company of any class or series entitled to vote generally in the election of directors of the Company.

Preemptive Rights. (a) If Except for issuances of: (i) Units set forth on Schedule A as of the Company date hereof (including, for the avoidance of doubt, any Capital Contributions made after the date hereof in respect of Class A Units or Class B Units set forth on Schedule A hereto); (ii) Class A Units, Class B Units and/or Class C Units issued pursuant to Section 3.3(a) or Section 3.3(c) hereof; (iii) Equity Securities upon exercise, conversion or exchange of debt securities or Equity Securities which were issued in compliance with (including if such issuances were exempt from) this Section 3.4 (to the extent such issuance is effected pursuant to the original terms of any such debt securities or other Equity Securities); (iv) Equity Securities to effectuate a transaction in accordance with Section 15.7 of this Agreement; (v) Equity Securities in connection with a restructuring (other than such securities received in return for new capital invested in connection with such restructuring); or (vi) Units in connection with any Unit split or any subdivision of Units, Unit dividend or similar recapitalization of the LLC or any of its Subsidiaries; if the LLC proposes to issue or otherwise Transfer sell any Equity Securities, the LLC shall offer to each Qualified Unitholder holding Class C Units (other than Excluded Unitholders) by written notice from the LLC (describing in reasonable detail the Equity Securities being offered, the purchase price thereof, the payment terms and such Qualified Unitholder’s Proportional Share) (the “Participation Notice”) the right to purchase a portion of such Equity Securities being purchased equal to the quotient obtained by dividing (1) the aggregate number of Class C Units held by such Qualified Unitholder, by (2) the aggregate number of Class C Units held by all Qualified Unitholders other than Excluded Unitholders (such Qualified Unitholder’s “Proportional Share”); provided that no Qualified Unitholder who either (x) would be entitled to purchase less than $10,000 of such Equity Securities after determination of such holder’s Proportional Share, (y) is not an “accredited investor” as such term is defined in the Securities Act and the rules and regulations promulgated thereunder or (z) at any time has breached or is in breach of any noncompetition, nonsolicitation, confidentiality or similar restrictive provisions to which such Qualified Unitholder is bound pursuant to a Senior Management Agreement, other Equity Agreement or other agreement between such Qualified Unitholder and the LLC or any of its Subsidiaries (any such Qualified Unitholder, an “Excluded Unitholder”) shall have any rights under this Section 3.4. Each such Qualified Unitholder shall be entitled to purchase all or any portion of its Proportional Share of such offered Equity Securities at the same price and on the same terms as such Equity Securities are to be offered to any other Person; provided that if all Persons entitled to purchase or receive any class, then group or series of such Equity Securities are required to also purchase other securities of the Company LLC, the Qualified Unitholders exercising their rights pursuant to this Section 3.4 shall make also be required to purchase the offer same strip of securities (on the same terms and conditions) that such other Persons are required to purchase. If all of the Equity Securities offered to the Qualified Unitholders hereunder are not fully subscribed by such Qualified Unitholders, the unsubscribed Equity Securities shall be allocated to the Qualified Unitholders purchasing their full allotment and indicating in their notice to the LLC pursuant to Section 3.4(b) a desire to acquire any Equity Securities that are available because of under-subscription. (b) In order to exercise its purchase rights hereunder, a Qualified Unitholder must within fifteen (15) calendar days of the date of the Participation Notice deliver a written notice to the LLC irrevocably exercising its rights to purchase such offered Equity Securities hereunder (including the extent, subject to any maximum dollar amounts or number of Equity Securities specified therein, to which such Qualified Unitholder elects to acquire any Equity Securities in excess of its Proportional Share available if the Equity Securities offered to Qualified Unitholders are not fully subscribed by such Qualified Unitholders based on their respective Proportional Shares). (c) Upon the expiration of the offering periods described above, the LLC shall be entitled to sell such Equity Securities which such Qualified Unitholders have not elected to purchase during the 180 calendar days following such expiration at a price and otherwise comply with on payment terms not less than the requirements set forth in this Section 3. Notwithstanding price and payment terms offered to the foregoing, (A) the Company may Transfer SecuritiesQualified Unitholders, and any right, title on other terms and conditions not more favorable in the aggregate than such other terms and conditions were offered to the Qualified Unitholders. Any securities offered or interest therein, without making sold by the offer LLC after such 180 calendar day period must be reoffered to sell set forth in this Section 3 in connection with (i) an Initial Public Offering, (ii) the issuance of up to 200,000 shares of Common Stock to management and employees of the Company such Qualified Unitholders pursuant to the Company's 1997 terms of this Section 3.4. (d) So long as the Qualified Unitholders are not disadvantaged (e.g., unable to participate in a Distribution or payment in respect of Equity and Performance Incentive Plan or Securities to be acquired hereunder), in lieu of offering any other incentive plan which provides for the issuance of Equity Securities exclusively to directors, officers or employees of the Company, (iii) the issuance of shares of Common Stock pursuant to the Employment Agreement and the Warrants or (iv) an issuance of Securities in consideration for and upon consummation of (x) a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority of the issued and outstanding shares of Voting Stock of the surviving entity or (y) an acquisition of assets or stock by the Company so long as, in either the case of (x) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, Qualified Unitholders at the time such merger is consummatedEquity Securities are offered to other Persons, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and LLC may comply with the approval provisions of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations pursuant to this Section 3 shall terminate upon 3.4 by making an Initial Public Offeringoffer to sell to the Qualified Unitholders (other than Excluded Unitholders) their Proportional Share of such securities promptly after a sale to such other Persons is effected. For In such event, for all purposes of this Section 33.4, "Voting Stock" each Qualified Unitholder’s Proportional Share shall mean stock be determined taking into consideration the actual number of Equity Securities sold to any other Person so as to achieve the same economic effect as if such offer would have been made prior to such sale. (e) The rights of the Company of any class or series entitled to vote generally in Unitholders under this Section 3.4 shall terminate upon the election of directors consummation of the Companyfirst to occur of (i) a Qualified Public Offering or (ii) an Approved Sale.

Preemptive Rights. (a) If If, at any time after the date hereof and prior to the consummation of a Qualified Public Offering, the Company proposes wishes to issue any Units or otherwise Transfer any Securities options, warrants or other rights to acquire Units or any notes or other Convertible Securities, other than Excluded Units (all such Units and other rights and securities other than Excluded Units, collectively, the “Equity Equivalents”), to any PersonPerson or Persons, then the Company shall make the offer promptly deliver a notice of intention to sell or otherwise issue (the “Company’s Notice of Intention to Sell”) to each Member setting forth a description and otherwise comply with the requirements set forth in this Section 3. Notwithstanding number of the foregoing, (A) the Company may Transfer Securities, Equity Equivalents and any rightother securities proposed to be issued, title or interest thereinthe proposed purchase price and terms of sale, without making including the offer identity of the prospective transferee(s). Upon receipt of the Company’s Notice of Intention to sell set forth Sell, each Member shall have the right to elect to purchase, at the price and on the terms stated in this Section 3 in connection with the Company’s Notice of Intention to Sell, a number of the Equity Equivalents equal to the product of (i) an Initial Public Offering, the percentage determined by dividing the number of Common Units then owned by such Member by the number of vested Units then outstanding multiplied by (ii) the number of Equity Equivalents proposed to be issued (as described in the applicable Company’s Notice of Intention to Sell); provided that, notwithstanding anything contained herein to the contrary, if the Company is issuing Equity Equivalents together as a unit with the issuance of up to 200,000 shares of Common Stock to management and employees any debt or other equity securities of the Company pursuant to the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides for the issuance of Securities exclusively its Subsidiaries, then any Member who elects to directors, officers or employees of the Company, (iii) the issuance of shares of Common Stock pursuant to the Employment Agreement and the Warrants or (iv) an issuance of Securities in consideration for and upon consummation of (x) a merger with respect to which the holders of Voting Stock immediately prior to purchase such merger beneficially own not less than a majority of the issued and outstanding shares of Voting Stock of the surviving entity or (y) an acquisition of assets or stock by the Company so long as, in either the case of (x) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations Equity Equivalents pursuant to this Section 3 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. Such election shall terminate be made by the electing Member by written notice to the Company within ten (10) business days after receipt by such Member of the Company’s Notice of Intention to Sell (the “Acceptance Period”). (b) To the extent an effective election to purchase has not been received from any Member pursuant to subsection (a) above in respect of the Equity Equivalents proposed to be issued pursuant to the applicable Company’s Notice of Intention to Sell, the Company may, at its election, during a period of one hundred and eighty (180) days following the expiration of the applicable Acceptance Period, issue and sell the remaining Equity Equivalents to be issued and sold to any Person at a price and upon an Initial Public Offeringterms not more favorable to such Person than those stated in the applicable Company’s Notice of Intention to Sell; provided, however, that failure by any Member to exercise its option to purchase with respect to one issuance and sale of Equity Equivalents shall not affect its option to purchase Equity Equivalents in any subsequent issuance and sale. For purposes In the event the Company has not sold any Equity Equivalents covered by a Company’s Notice of Intention to Sell within such one hundred and eighty (180) day period, the Company shall not thereafter issue or sell such Equity Equivalents, without first offering such Equity Equivalents to each Member in the manner provided in this Section 7. (c) If any Member gives the Company notice, pursuant to the provisions of this Section 37, "Voting Stock" that such Member desires to purchase any Equity Equivalents, payment therefor shall mean stock be by check or wire transfer of immediately available funds, against delivery of the securities (which securities shall be issued free and clear of any liens or encumbrances) at the executive offices of the Company no later than the last closing date fixed by the Company for the sale of the applicable Equity Equivalents, which last closing date shall be no earlier than 15 business days after the date the Company delivers the applicable Company’s Notice of Intention to Sell. In the event that any class or series entitled to vote generally proposed sale is for a consideration other than cash, such Member may pay cash in lieu of all (but not part) of such other consideration, in the election amount determined reasonably and in good faith by the Board to represent the fair value of directors of the Companysuch consideration other than cash.

Preemptive Rights. (a) If Subject to the terms and conditions contained in this Agreement, each Class A Member shall have the preemptive right to purchase its pro rata portion of any newly issued Common Units that the Company proposes may, from time to time, propose to sell and issue (the “Preemptive Right”). Any portion of such newly issued Common Units not purchased pursuant to the Preemptive Right may be sold to other Members or otherwise Transfer to other purchasers. Each Class A Member shall have ten (10) business days following approval of the newly issued Common Units, and receiving written notice thereof, to agree to purchase up to its pro rata portion of the newly issued Common Units, for the price and upon the terms specified in the approval of such newly issued Common Units, by giving written notice to the Managers and stating therein the quantity of newly issued Units to be purchased. Upon exercise of the Preemptive Right, the Company and the relevant Member shall be legally obligated to consummate the purchase contemplated thereby and shall use their reasonable best efforts to secure any Securities approvals required in connection therewith. In the event a Member fails to any Personexercise its Preemptive Right within said ten (10) business day period, then the Company shall make the offer have a period of one year thereafter to sell and otherwise comply with or enter into an agreement to sell the requirements set forth newly issued Common Units not elected to be purchased by such Class A Member. In the event the Company has not entered into an agreement to sell such Common Units within said one year period, the Company shall not thereafter issue or sell any newly issued Common Units without first offering such Common Units to the Class A Members as provided in this Section 3. Notwithstanding the foregoing, (A) the Company may Transfer Securities, and any right, title or interest therein, without making the offer to sell set forth in this Section 3 in connection with (i) an Initial Public Offering, (ii) the issuance of up to 200,000 shares of Common Stock to management and employees of the Company pursuant to the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides for the issuance of Securities exclusively to directors, officers or employees of the Company, (iii) the issuance of shares of Common Stock pursuant to the Employment Agreement and the Warrants or (iv) an issuance of Securities in consideration for and upon consummation of (x) a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority of the issued and outstanding shares of Voting Stock of the surviving entity or (y) an acquisition of assets or stock by the Company so long as, in either the case of (x) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations pursuant to this Section 3 shall terminate upon an Initial Public Offering. For purposes of this Section 3, "Voting Stock" shall mean stock of the Company of any class or series entitled to vote generally in the election of directors of the Company3.5.

Preemptive Rights. (a) If Except for the Company proposes to issue issuance of the Company's capital stock or otherwise Transfer any Securities to any Person, then the Company shall make the offer to sell and otherwise comply with the requirements set forth in this Section 3. Notwithstanding the foregoing, (A) the Company may Transfer Securities, and any right, title or interest therein, without making the offer to sell set forth in this Section 3 in connection with other securities (i) an Initial Public Offeringpursuant to a Qualifying IPO (as defined in the Memorandum), (ii) the issuance of up comprising additional shares or option issuances to 200,000 shares of Common Stock to management and employees Employees of the Company pursuant to share option plans existing on the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides for date hereof including the issuance number of Securities exclusively to directors, officers or employees shares issuable thereunder as of the Companydate hereof (or amendments to such plans or new plans if agreed to by the Shareholders), (iii) the issuance comprising Class B Preferred Shares, up to an aggregate of shares of Common Stock pursuant to the Employment Agreement and the Warrants 1,888,889 Class B Preferred Shares, or (iv) an issuance in connection with acquisitions of Securities in consideration for and upon consummation of (x) a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority of the issued and outstanding shares of Voting Stock of the surviving entity or (y) an acquisition of assets or stock businesses by the Company so long as, in either the case of (x) or (y), such transaction has been approved by the affirmative vote Shareholders, if the Company at any time after the date hereof authorizes the issuance or sale of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations pursuant to this Section 3 shall terminate upon an Initial Public Offering. For purposes of this Section 3, "Voting Stock" shall mean capital stock of the Company or any securities of the Company containing options or rights to acquire any class shares of capital stock (other than as a dividend on the outstanding capital stock), the Company shall first offer to sell to the Shareholders on a pro rata basis, all of such capital stock or series other securities (the "Offered Shares"). (b) In order to exercise its purchase rights under this Section 3.8, each Shareholder must within twenty (20) business days after receipt of written notice from the Company describing in reasonable detail the capital stock or securities being offered, the purchase price thereof and the payment terms, deliver a written notice to the Company describing its election hereunder. Such election shall indicate the number of Offered Shares that the Shareholder in its sole discretion elects to purchase, which may be all or any portion of the Offered Shares. The Company shall give the Shareholders no less than fifteen (15) business days notice of the closing of the sale and purchase of such shares. (c) Upon the expiration of the 20-day period described above, the Company shall be entitled to vote generally in sell such capital stock or securities which the election Shareholder has not elected to purchase during the ninety (90) days following such expiration on terms and conditions, including price, no more favorable to the purchasers thereof than those offered to the Shareholders. Any capital stock or securities offered or sold by the Company to any person after such 90-day period must be re-offered to the Shareholders pursuant to the terms of directors of the Companythis Section 3.8.

Preemptive Rights. (a) If the Company proposes to issue any Membership Interest, warrants, options or otherwise Transfer rights to purchase any Securities to Membership Interest, any Person, then the Company shall make the offer to sell and otherwise comply with the requirements set forth in this Section 3. Notwithstanding the foregoing, (A) the Company security which is or may Transfer Securities, and be convertible into a Membership Interest or any right, title or interest therein, without making the offer to sell set forth in this Section 3 in connection with (i) an Initial Public Offering, (ii) the issuance of up to 200,000 shares of Common Stock to management and employees other equity security of the Company pursuant to or calls for additional Capital Contributions, regardless of form (each a "COMPANY SECURITY"), other than an Exempt Issuance, the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides for the issuance of Securities exclusively to directorsCompany shall, officers or employees of the Company, (iii) the issuance of shares of Common Stock pursuant to the Employment Agreement and the Warrants or (iv) an issuance of Securities in consideration for and upon consummation of (x) a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own issuance, deliver to each Member a written notice (the "PREEMPTION NOTICE") thereof describing the terms and conditions of such issuance (the "PREEMPTION NOTICE TRANSACTION"). Such Members, by giving written notice to the Company not less later than a majority five (5) Business Days following the giving of the Preemption Notice, may participate as purchasers in the Preemptive Notice Transaction on a pro rata basis based on the proportion of such Member's Membership Interest relative to the amount of outstanding Membership Interests on a fully-diluted basis. The participating Members shall participate as a purchaser in such Preemption Notice Transaction for a price per Company Security equal to the price per Company Security being paid to the Company in such issuance and on the same terms and conditions as those applicable to the proposed purchaser in such Preemption Notice Transaction. The number of Company Securities to be issued and outstanding shares of Voting Stock of the surviving entity or (y) an acquisition of assets or stock by the Company so long as, to the proposed purchaser in either the case of (x) or (y), such transaction has been approved issuance shall be reduced by the affirmative vote number of at least one director appointed by Nu-Tech if, at Company Securities that the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations participating Members purchase pursuant to this Section 3 shall terminate upon an Initial Public Offering5.4. For purposes of this Section 3To the extent that any Member receiving the Preemption Notice does not accept the offer to participate in the Preemption Notice Transaction, "Voting Stock" shall mean stock of the Company may issue such Company Securities to another Person on terms no less favorable to the Company than the terms set forth in such Preemption Notice. The right of any class or series entitled Members to vote generally participate in the election Preemption Notice Transaction is conditioned on the consummation of directors of the Companysuch Preemption Notice Transaction.

Preemptive Rights. (ai) If Except for issuances of Units in consideration of the first $40 million of funding by the Members, as set forth on Schedule I, if the Company proposes sells or offers to issue sell any Equity Securities (including Units), or otherwise Transfer any Securities of its Subsidiaries sells or offers to sell any equity securities, to any Person, then the Company shall make the offer to sell to each Unitholder (other than Excluded Unitholders (as defined below)) the number of Equity Securities or other equity securities of the Subsidiaries equal to the quotient obtained by dividing (1) the aggregate number of Units owned by such Unitholder, by (2) the aggregate number of Units owned by all Unitholders (such Unitholder’s “Proportional Share”); provided that no Unitholder who is not an “accredited investor” as such term is defined under the Securities Act and otherwise comply with the requirements set forth in rules and regulations promulgated thereunder (any such Unitholder, an “Excluded Unitholders”) shall have any rights under this Section 33.1(c). Notwithstanding the foregoing, Each such Unitholder (Aother than Excluded Unitholders) the Company may Transfer Securities, and any right, title shall be entitled to purchase such Equity Securities or interest therein, without making the offer to sell set forth in this Section 3 in connection with (i) an Initial Public Offering, (ii) the issuance of up to 200,000 shares of Common Stock to management and employees other equity securities of the Company pursuant Subsidiaries, as the case may be, at the most favorable price and on the most favorable terms as such Equity Securities or other equity securities are to the Company's 1997 be offered; provided that if all Persons entitled to purchase or receive such Equity and Performance Incentive Plan or any Securities are required to also purchase other incentive plan which provides for the issuance of Securities exclusively to directors, officers or employees securities of the Company, the Unitholders exercising their rights pursuant to this Section 3.1(c) shall also be required to purchase the same strip of securities (on the same terms and conditions) that such other Persons are required to purchase. The purchase price for all securities offered to such Unitholders hereunder shall be payable in cash or the same form as shall be paid by any proposed purchaser. (ii) In order to exercise its purchase rights hereunder, a Unitholder must within two calendar days after receipt of written notice from the Company describing in reasonable detail the securities being offered, the purchase price thereof, the payment terms and such Unitholder’s Proportional Share, deliver a written notice to the Company describing such Unitholder’s election hereunder. No later than one calendar day following the expiration of such two day period, the Company shall notify each Unitholder (other than Excluded Unitholders) in writing of the number of new securities that each such Unitholder has agreed to purchase (including, for the avoidance of doubt, where such number is zero) (the “Over-allotment Notice”). Each Unitholder exercising its rights to purchase its Proportional Share of new securities in full (an “Exercising Unitholder”) shall have a right of over-allotment such that if any other Unitholder (other than Excluded Unitholders) fails to exercise its right under this Section 3.1(c) to purchase its Proportional Share of the new securities (each, a “Non-Exercising Unitholder”), such Exercising Unitholder may purchase its Proportional Share of such Non-Exercising Unitholder’s allotment by giving written notice to the Company within five calendar days of receipt of the Over-allotment Notice. (iii) Upon the issuance expiration of shares of Common Stock the offering periods described above, the Company shall be entitled to sell such securities which such Unitholders have not elected to purchase during the 180 calendar days following such expiration at a price not less than, and on other terms and conditions no more favorable to the purchasers thereof than, that offered to such Unitholders. Any securities offered or sold by the Company after such 180-day period must be reoffered to such Unitholders pursuant to the Employment Agreement and the Warrants or terms of this Section 3.1(c). (iv) an issuance of Securities in consideration for and upon consummation of (x) a merger with respect Notwithstanding anything to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority of the issued and outstanding shares of Voting Stock of the surviving entity or (y) an acquisition of assets or stock by the Company so long ascontrary set forth herein, in either lieu of offering any securities to the case of (x) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, Unitholders at the time such merger is consummatedsecurities are offered to any Person, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and Company may comply with the approval provisions of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations pursuant to this Section 3 shall terminate upon 3.1(c) by making an Initial Public Offeringoffer to sell to the Unitholders (other than Excluded Unitholders) their Proportional Share of such securities promptly after a sale to any such Person is effected. For In such event, for all purposes of this Section 33.1(c), "Voting Stock" each Unitholder’s Proportional Share shall mean stock be determined taking into consideration the actual number of securities sold to any other Person so as to achieve the same economic effect as if such offer would have been made prior to such sale. (v) The rights of the Company Unitholders under this Section 3.1(c) shall terminate upon the consummation of any class or series entitled to vote generally in the election of directors a Sale of the Company.

Preemptive Rights. (a) If the Company proposes to issue or otherwise Transfer any Securities Prior to any Personissuance, then sale or exchange of its Equity Securities, the Company shall make the offer to sell and otherwise comply with the requirements set forth in this Section 3. Notwithstanding the foregoing, each Purchaser (Aby written notice) the Company may Transfer Securities, and any right, title for a period of 20 days, to purchase all of such securities for cash at an amount equal to the price or interest thereinother consideration for which such securities are to be issued; provided, without making however, that the offer Purchasers' preemptive rights pursuant to sell set forth in this Section 3 in connection with Paragraph 2 shall not apply to securities issued (i) an Initial Public Offering, upon the conversion of any shares of the Preferred Stock; (ii) the issuance as a stock dividend, stock split or similar subdivision of up to 200,000 shares of Preferred Stock or Common Stock, so long as the securities issued pursuant to such stock dividend, stock split or subdivision consist exclusively of additional shares of Preferred Stock or Common Stock; (iii) pursuant to management subscriptions, warrants, options, rights, contracts or commitments which are outstanding on the date hereof; (iv) pursuant to an effective registration statement under the Securities Act in an underwritten public offering; (v) as the sole consideration for the acquisition (whether by merger, consolidation or otherwise) by the Company of all or substantially all the capital stock or assets of any other person; (vi) pursuant to any employee stock option, incentive or other benefit plant provided that the number of shares issued thereunder do not exceed, in the aggregate, 259,007 shares (adjusted appropriately to reflect stock splits, stock dividends, subdivisions of shares and employees the like with respect to the Common Stock) less the number of shares (adjusted as aforesaid) issued pursuant to options outstanding on the date of this Agreement pursuant to clause (iii) above; (vii) (at any time and from time to time) as all or a portion of the consideration paid by the Company pursuant to one or more of its officers, key employees or consultants for services furnished to the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides for , provided that the issuance of Securities exclusively to directors, officers or employees of the Company, (iii) the issuance number of shares of Common Stock pursuant so issued (whether at one time or from time to the Employment Agreement and the Warrants or (ivtime) an issuance of Securities in consideration for and upon consummation of (x) a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own does not less than a majority of the issued and outstanding shares of Voting Stock of the surviving entity or (y) an acquisition of assets or stock by the Company so long asexceed, in either the case of (x) or (y)aggregate, such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") 35,078 shares; and (Bviii) any rights or obligations pursuant to this Section 3 shall terminate upon an Initial Public Offering. For purposes of this Section 3, "Voting Stock" shall mean stock of the Company exercise of any class or series entitled to vote generally in the election of directors of the Company.right issued

Preemptive Rights. (a) If the Company proposes authorizes, after the date hereof, the issuance or sale of any equity securities of the Company or any securities containing options or rights to issue or otherwise Transfer any Securities acquire equity securities of the Company, in each case, other than Exempt Equity Issuances, to any Person (any such Person, the “Acquiring Securityholder”), the Company will, at least 15 days prior to the issuance or sale, notify each Securityholder that is an Accredited Investor in writing of the price of and any material terms relating to the proposed issuance or sale (to the extent then known). Each Securityholder may elect to purchase his, her or its Pro Rata Portion of the securities to be issued in such issuance or sale at the same price and on the terms identified in the notice. If electing to participate, each Securityholder shall be required to purchase the same strip of securities, on the same terms and conditions, that the Acquiring Securityholder in such issuance is purchasing. Each Securityholder’s election to participate in any such additional financing must be made in writing and be delivered to the Company within 15 days after such Securityholder’s receipt of the notice from the Company provided under this Section 4; provided that if there is a material change in the terms included in such notice, each Securityholder will have 10 days after receipt of notice of the revised terms to reconfirm such Securityholder’s intention to invest. If after notifying the Securityholders, the Company elects not to proceed with the issuance or sale, any elections made by Securityholders shall be deemed rescinded. (b) Upon the expiration of the offering periods described above, the Company shall make be entitled to sell such securities which the Securityholders have not elected to purchase during the 180 calendar days following such expiration at a price not less than, and on other terms and conditions substantially similar to those offered to such Securityholders. Any securities offered or sold by the Company after such 180 day period (or, if prior to such 180-day period, at a price less than, or on other terms and conditions not substantially similar to those offered to such Securityholders) must be reoffered to such Securityholders pursuant to the terms of this Section 4. (c) Notwithstanding anything herein to the contrary, if the Board determines that compliance with the time periods described in this Section 4 would not be in the best interests of the Company and its Subsidiaries because of the liquidity needs of the Company and its Subsidiaries, then, in lieu of offering any securities to the Securityholders at the time such securities are otherwise being issued or sold, the Company may comply with the provisions of this Section 4 by making an offer to sell to the Securityholders their Pro Rata Portion of such securities promptly, and otherwise comply with in no event later than 10 days, after a sale to the requirements set forth in Acquiring Securityholder is consummated. In such event, for all purposes of this Section 3. Notwithstanding 4, each Securityholder’s Pro Rata Portion shall be determined taking into consideration the foregoing, actual number of securities sold so as to achieve the same economic effect as if such offer would have been made prior to such sale. (Ad) This Section 4 shall terminate upon the Company may Transfer Securities, and any right, title or interest therein, without making the offer first to sell set forth in this Section 3 in connection with occur of (i) an Initial Public Offering, the consummation of a Sale of the Company and (ii) the issuance of up to 200,000 shares of Common Stock to management and employees of the Company pursuant to the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides for the issuance of Securities exclusively to directors, officers or employees of the Company, (iii) the issuance of shares of Common Stock pursuant to the Employment Agreement and the Warrants or (iv) an issuance of Securities in consideration for and upon consummation of (x) a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority of the issued and outstanding shares of Voting Stock of the surviving entity or (y) an acquisition of assets or stock by the Company so long as, in either the case of (x) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations pursuant to this Section 3 shall terminate upon an Initial Qualified Public Offering. For purposes of this Section 3, "Voting Stock" shall mean stock of the Company of any class or series entitled to vote generally in the election of directors of the Company.

Preemptive Rights. (a) If the Company proposes a Member intends to issue or otherwise Transfer any Securities to any Person, then the Company shall make the offer to sell and otherwise comply with the requirements set forth in this Section 3. Notwithstanding the foregoing, (A) the Company may Transfer Securities, and any right, title or interest therein, without making the offer to sell set forth in this Section 3 in connection with (i) an Initial Public Offering, (ii) the issuance of up to 200,000 shares of Common Stock to management and employees of the Company pursuant to the Company's 1997 Equity and Performance Incentive Plan all or any other incentive plan which provides for the issuance part of Securities exclusively its Ownership Interest, or an Affiliate of a Member intends to directors, officers or employees Transfer Control of the Company, such Member (iii) the issuance of shares of Common Stock pursuant to the Employment Agreement and the Warrants or (iv) an issuance of Securities in consideration for and upon consummation of (x) a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority of the issued and outstanding shares of Voting Stock of the surviving entity or (y) an acquisition of assets or stock by the Company so long as, in either the case of (x) or (y“Transferring Entity”), such transaction has been approved Member shall promptly notify each other Member of such intentions. The notice shall state the price and all other pertinent terms and conditions of the intended Transfer, and shall be accompanied by a copy of the affirmative vote offer or the contract for sale. If the consideration for the intended transfer is, in whole or in part, other than monetary, the notice shall describe such consideration and its monetary equivalent (based upon the fair market value of at least one director appointed by Nu-Tech ifthe nonmonetary consideration and stated in terms of cash or currency). The other Member or Members, as applicable, shall have thirty (30) days from the date such notice is delivered to notify the Transferring Entity (and the Member if its Affiliate is the Transferring Entity) whether it elects to acquire the offered interest at the time such merger is consummatedsame price (or its monetary equivalent in cash or currency) and on the same terms and conditions as stated in the notice. If there are more than two (2) Members, Nuthe non-Tech has Transferring Entity Members shall have the right to nominate directors pursuant acquire the offered interest pro rata, and if a non-Transferring Entity Member elects not to Section 4 hereof acquire its proportionate share of the offered interest, the other non-Transferring Entity Members shall have the right to do so. If the non-Transferring Entity Members elect to acquire the offered interest, their acquisition of the offered interest shall be consummated promptly. 1.1 If the non-Transferring Entity Member or Members, as applicable, fail to so elect within the period provided for above, the Transferring Entity shall have one hundred twenty (120) days following the expiration of such period to consummate the Transfer to a third party at a price and on terms no less favorable to the Transferring Entity than those offered by the Transferring Entity to the non-Transferring Entity Member or Members, as applicable, in the aforementioned notice. 1.2 If the Transferring Entity fails to consummate the Transfer to a third party within the period stated above, the preemptive right and the approval correlative obligation of the transaction by Transferring Entity in respect of such director is required pursuant offered interest shall be deemed to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations pursuant be revived. Any subsequent proposal to this Section 3 Transfer such interest shall terminate upon an Initial Public Offering. For purposes of this Section 3, "Voting Stock" shall mean stock be conducted in accordance with all of the Company of any class or series entitled to vote generally procedures stated in the election of directors of the Companythis Section.

Preemptive Rights. (a) If The percentage of the Company proposes to issue or otherwise Transfer Company's issued and outstanding Common Stock, on a fully-diluted basis (based on the number of shares of Common Stock outstanding on the date hereof and any other Equity Securities (as defined below) outstanding on the date hereof), represented by the shares of Common Stock issuable upon conversion of the Notes in their entirety (after giving effect to any Personadjustment to the Conversion Price as set forth in the Notes), then shall be referred to herein as the "Equity Percentage." In addition to the anti-dilution provision set forth in the Notes, the Purchasers shall be entitled to preemptive rights as set forth herein in order to preserve such Equity Percentage. In the case of the issuance of additional shares of Common Stock or any security that is convertible into shares of Common Stock or any rights or options to purchase shares of Common Stock (collectively, "Equity Securities") which are issued for consideration that includes cash and are not issued to the selling shareholders in a merger or acquisition transaction, the Purchasers shall be entitled to purchase such amount of Equity Securities, upon the same terms and conditions as applicable to any other purchaser or recipient of such Equity Securities, in an amount so as to preserve the Purchasers' Equity Percentage. (b) For purposes of this Section 7.2, (i) the Company shall make be deemed to have issued the offer maximum number of shares of Common Stock deliverable upon the exercise of any such rights or options or upon conversion of any such securities and (ii) the consideration therefor shall be deemed to sell be the sum of (x) the consideration received by the Company for such convertible securities or for such other rights or options as the case may be, without deducting therefrom any expenses or commissions incurred or paid by the Company for any underwriting or issuance of such convertible security or right or option, plus (y) the consideration or adjustment payment to be received by the Company in connection with such conversion, plus (z) the minimum price at which shares of Common Stock are to be delivered upon the exercise of such rights or options, or, if no minimum price is specified and otherwise comply with such shares are to be delivered at the requirements set forth option price related to the market value of the subject shares, an option price bearing the same relation to the market value of the subject shares at the time such rights or options were granted, provided that as to such options such further (c) The number of shares of Common Stock at any time outstanding shall include (i) all outstanding common stock of the Company, and (ii) the aggregate number of shares deliverable in respect of the convertible securities, rights and options referred to in this Section 37.2, provided that, to the extent that any such options, warrants or conversion privileges are not exercised, such shares shall be deemed to be outstanding only until the expiration dates of the rights, options or conversion privilege or the prior cancellation thereof. Notwithstanding the foregoing, (A) there shall not be taken into account, for the Company may Transfer Securitiespurpose of any computation made pursuant to Section 7.2, and any right, title or interest therein, without making whether for the offer to sell set forth in this Section 3 in connection with (i) an Initial Public Offering, (ii) the issuance of up to 200,000 shares of Common Stock to management and employees determination of the Company pursuant to the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides for the issuance of Securities exclusively to directors, officers or employees of the Company, (iii) the issuance number of shares of Common Stock pursuant to the Employment Agreement and the Warrants issued or (iv) an issuance of Securities in consideration for and upon consummation of (x) a merger with respect to which the holders of Voting Stock immediately outstanding on or prior to such merger beneficially own not less than a majority of the issued and outstanding any date, or otherwise, any options, warrants, or rights to purchase shares of Voting Common Stock of the surviving entity or (y) an acquisition Company in existence on the date of assets or stock by the Company so long as, in either the case of (x) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and the approval issuance of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations pursuant to this Section 3 shall terminate upon an Initial Public Offering. For purposes of this Section 3, "Voting Stock" shall mean stock of the Company of any class or series entitled to vote generally in the election of directors of the CompanyNotes.

Preemptive Rights. (a) If the Company proposes to issue issue, grant or otherwise Transfer sell Common Stock or Rights, the Company’ shall first give to the purchaser (so long as the purchaser owns at least 300,000 Shares) and any Securities to any Person, then transferee (of whom the Company has notice) of Shares from the purchaser then owning at least 300,000 Shares (appropriately adjusted for any stock split, reverse stock split or stock dividend), except for any transferee that acquires such Shares in a public offering registered under the Securities Act or in a transaction on the open market effected pursuant to Rule 144 under the Securities Act, (each a “securityholder”) written notice setting forth in reasonable detail the price and other terms on which such shares of Common Stock or Rights are proposed to be issued or sold, the terms of any such Rights and the amount thereof proposed to be issued, granted or sold. Each securityholder shall make thereafter have the offer preemptive right exercisable by written notice to sell the Company no later than twenty (20) days after the Company’s notice is given, to purchase the number of such shares of Common Stock or Rights set forth in the securityholder’s notice (but in no event more than the securityholder’s Proportionate Share (as defined below) thereof, as of the date of the Company’s notice), at the price and otherwise comply with on the requirements other terms set forth in the Company’s notice. Any notice by a Securityholder exercising the right to purchase shares of Common Stock or Rights pursuant to this Section 5.3 shall constitute an irrevocable commitment to purchase from the Company the shares of Common Stock or Rights specified in such notice, subject to the maximum set forth in the preceding sentence. If all the Securityholders exercise their preemptive rights set forth in this Section 3. Notwithstanding 5.3(a) to the foregoingfull extent of their Proportionate Share or if for any other reason the Company shall not issue, grant or sell shares of Common Stock or Rights to persons other than securityholders, then the closing of the purchase of shares of Common Stock or Rights by Securityholders shall take place on such date, no less than ten (A10) and no more than thirty (30) days after the expiration of the 20 day period referred to above, as the Company may Transfer Securitiesselect, and any rightthe Company shall notify the Securityholders of such closing at least seven (7) days prior thereto. If all persons entitled thereto do not exercise their preemptive rights to the full extent of their Proportionate Share and, title as contemplated by Section 5.3(b), the Company shall issue, grant or interest thereinsell shares of Common Stock or Rights to persons other than Securityholders, without making then the offer closing of the purchase of shares of Common Stock or Rights shall take place at the same time as, the closing of such issuance, grant or sale. (b) If all persons entitled thereto do not exercise their preemptive rights to the full extent of their Proportionate Share, the Company shall use its good faith and commercially reasonable efforts to issue, grant or sell the remaining subject shares of Common Stock or Rights on the terms set forth in its notice to Securityholders, unless the Company is advised by its financial advisors that the remaining number or amount is too small to be reasonably sold from the expiration of the 20 day period first referred to in Section 5.3(a) and for a period of 90 days thereafter, the Company may offer, issue, grant and sell, to any person or entity shares of Common Stock or Rights having the terms set forth in the Company’s notice relating to such shares of Common Stock or Rights at a price and on other no less favorable to the Company, and including no less cash, than those set forth in such notice (without deduction) for reasonable underwriting, sales agency and similar fees payable in connection therewith); provided, that the Company may not issue, grant or sell shares of Common Stock or Rights amount greater than the amount set forth in such notice minus the amount purchased or committed to be purchased by Securityholder’s rights (c) The provisions of this Section 3 in connection with 5.3 shall not apply to the following issuances of securities: (i) pursuant to an Initial Public Offeringapproved stock option plan, stock purchase plan, or similar benefit program or agreement for the benefit of employees of, or consultants to, the Company, where the primary purpose is not to raise additional equity capital for the Company, (ii) the issuance of up to 200,000 shares of Rights, or Common Stock issuable upon exercise of Rights, granted to management and employees of the Company pursuant to business partners, retailers or lessors engaged in bona fide business transactions with the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides , where the primary purpose is not to raise additional equity capital for the issuance of Securities exclusively to directors, officers or employees of the Company, (iii) as direct consideration for the issuance acquisition by the Company of another business entity or the merger of any business entity with or into the Company, (iv) in connection with a stock dividend, (v) upon the exercise of warrants or options, or upon the conversion of convertible securities, outstanding on the date hereof or to which Securityholders have been previously offered the right to participate as contemplated hereby or (vi) in an underwritten public offering registered under the Securities Act if the managing underwriters advise the securityholders in writing that the purchase of shares of Common Stock pursuant to the Employment Agreement preemptive rights afforded by this Section 5.3 would materially and adversely affect the Warrants or (iv) an issuance of Securities in consideration for and upon consummation of (x) a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority marketing of the issued and outstanding shares of Voting Stock of the surviving entity or offering. (yd) an acquisition of assets or stock by the Company so long as, in either the case of (x) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations pursuant to this Section 3 shall terminate upon an Initial Public Offering. For purposes of this Section 35.3, "Voting Stock" the following terms shall mean stock of have the Company of any class or series entitled to vote generally in the election of directors of the Company.corresponding meanings set forth herein:

Preemptive Rights. (a) If after the Closing Date, and for so long as the Purchaser (together with its Affiliates) beneficially owns at least 5% of the Common Stock on a fully diluted basis, the Company proposes to sell any shares of its Capital Stock for cash (including any convertible notes to be sold to financial institutions for resale pursuant to Rule 144A, but excluding (i) Excluded Stock, as such term is defined in the Certificate of Designation, or otherwise pursuant to an employee benefit plan approved by the Board and (ii) shares of Common Stock being publicly offered in a bona fide underwritten offering) to any Person in a transaction or transactions, as the case may be, the Purchaser shall have the right to purchase, at the same price per share and upon substantially similar terms and conditions as such securities are proposed to be offered to others, up to a number of shares of such Capital Stock (the “New Stock”) sufficient for it to maintain the same percentage ownership of outstanding securities of such class of Capital Stock of the Company as the Purchaser owned immediately prior to such issuance. (b) (i) In the event the Company intends to make a private offering of convertible notes or convertible preferred stock made to financial institutions for resale pursuant to Rule 144A, no later than five (5) Business Days after the commencement of marketing with respect to such Rule 144A offering, it shall give the Purchaser prompt written notice of its intention (including a copy of the offering memorandum provided to investors pursuant to such Rule 144A offering) describing, to the extent then known, the anticipated amount of securities, range of prices, timing and other material terms of such offering. The Purchaser shall have ten (10) calendar days from the date of receipt of any such notice to notify the Company in writing that it intends to exercise such preemptive purchase rights and as to the amount of New Stock the Purchaser desires to purchase, up to the maximum amount calculated pursuant to Section 5.04(a). The failure to respond during such ten (10) calendar day period shall constitute a waiver of the preemptive rights only in respect of such offering. (ii) If the Company proposes to issue sell any shares of its Capital Stock for cash to any Person in a transaction or transactions, as the case may be, that is neither an underwritten public offering nor a private offering of convertible notes or convertible preferred stock made to financial institutions for resale pursuant to Rule 144A (excluding (i) Excluded Stock, as such term is defined in the Certificate of Designation, or otherwise Transfer any Securities pursuant to any Personan employee benefit plan approved by the Board) (a “Private Placement”), then the Company shall make give the offer Purchaser prompt written notice of its intention, describing, to sell the extent then known, the anticipated amount of securities, price and otherwise comply with the requirements set forth in this Section 3. Notwithstanding the foregoing, (A) other material terms upon which the Company may Transfer Securitiesproposes to offer the same. The Purchaser shall have ten (10) calendar days from the date of receipt of the notice required by the immediately preceding sentence to notify the Company in writing that it intends to exercise such preemptive purchase rights and as to the amount of New Stock the Purchaser desires to purchase, and any right, title or interest therein, without making up to the offer maximum amount calculated pursuant to sell set forth Section 5.04(a). The failure of the Purchaser to respond during the ten (10) calendar day period referred to in this Section 3 the second preceding sentence shall constitute a waiver of the preemptive rights in connection with respect of such offering only. (c) (i) an Initial Public OfferingIf the Purchaser exercises its preemptive purchase rights provided in Section 5.04(b)(ii), (ii) the issuance of up to 200,000 shares of Common Stock to management and employees closing of the Company pursuant to the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides for the issuance of Securities exclusively to directors, officers or employees purchase of the Company, (iii) the issuance of shares of Common New Stock pursuant to the Employment Agreement and the Warrants or (iv) an issuance of Securities in consideration for and upon consummation of (x) a merger with respect to which such right has been exercised shall be conditioned on the holders consummation of Voting the Private Placement giving rise to such preemptive purchase rights and shall take place simultaneously with the closing of the Private Placement or on such other date as the Company and the Purchaser shall agree in writing; provided, that the actual amount of New Stock immediately to be sold to the Purchaser pursuant to its exercise of preemptive rights hereunder shall be reduced if the aggregate amount of Capital Stock sold in the Private Placement is reduced and, at the option of the Purchaser (to be exercised by delivery of written notice to the Company within three (3) Business Days of receipt of notice of such increase), shall be increased if such aggregate amount of Capital Stock sold in the Private Placement is increased. In connection with its purchase of New Stock, the Purchaser shall execute an instrument in form and substance reasonably satisfactory to the Company containing the representations, warranties and agreements of the Purchaser that are required under the terms of the Private Placement. (ii) If the Purchaser exercises its preemptive purchase rights provided in Section 5.04(b)(i), the Company shall offer the Purchaser, if such Rule 144A offering is consummated, the New Stock (as adjusted to reflect the actual size of such offering when priced) at the same price as the Capital Stock being offered is offered to the initial purchasers and shall provide written notice of such price to the Purchaser as soon as practicable prior to such merger beneficially own not less than a majority consummation. Contemporaneously with the execution of any purchase agreement entered into between the Company and initial purchasers of such Rule 144A offering, the Purchaser shall enter into an instrument in form and substance reasonably satisfactory to the Company acknowledging the Purchaser’s binding obligation to purchase the New Stock to be acquired by it upon the terms and conditions offered to the initial purchasers and containing such additional representations, warranties and agreements of the issued Purchaser that are customary in private placement transactions, and outstanding shares of Voting Stock the failure to enter into such an instrument at or prior to such time shall constitute a waiver of the surviving entity or (y) an acquisition preemptive rights only in respect of assets or stock by the Company so long as, in either the case of (x) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations pursuant to this Section 3 shall terminate upon an Initial Public Offering. For purposes of this Section 3, "Voting Stock" shall mean stock of the Company of any class or series entitled to vote generally in the election of directors of the Companyoffering.

Preemptive Rights. (a) If the Company proposes to issue authorizes the issuance or otherwise Transfer sale of any Securities to any PersonInterests (except for issuances on the date of this Agreement and except for issuances on or before November 3, then 2009 if LAKES OHIO DEVELOPMENT LLC is offered at least 10% of the total Interests issued), the Company shall make first offer in writing (the offer “Preemptive Rights Notice”) to sell to LAKES OHIO DEVELOPMENT LLC or the successor to its Interests 10% of such Interests. LAKES OHIO DEVELOPMENT LLC or the successor to its Interests shall be entitled to purchase up to 10% of such Interests being issued or sold by notifying the Company in writing within three business days after the delivery of the Preemptive Rights Notice. The closing of such purchase shall take place on the first closing date of the same Interests offered to others. LAKES OHIO DEVELOPMENT LLC or the successor to its Interests shall be entitled to purchase such Interests at the most favorable price and otherwise comply with on the requirements set forth most favorable terms that such Interests are to be offered in this Section 3. Notwithstanding such transaction; provided that notwithstanding the foregoing, (A) in the event that the Company may Transfer Securities, and any right, title is issuing more than one type or interest therein, without making the offer to sell set forth in this Section 3 class of Interests in connection with (i) an Initial Public Offeringsuch issuance, (ii) LAKES OHIO DEVELOPMENT LLC or the issuance successor to its Interests shall be required to acquire all such types and classes of up Interests in the same form as they are being offered to 200,000 shares of Common Stock others. Such Interests specified in the Preemptive Rights Notice that are not purchased by LAKES OHIO DEVELOPMENT LLC or the successor to management and employees of the Company its Interests pursuant to the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides for the issuance terms of Securities exclusively to directors, officers or employees of the Company, (iii) the issuance of shares of Common Stock pursuant to the Employment Agreement and the Warrants or (iv) an issuance of Securities in consideration for and upon consummation of (x) a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority of the this Section 2.7 may be issued and outstanding shares of Voting Stock of the surviving entity or (y) an acquisition of assets or stock sold by the Company so long as, (on terms no less favorable than the terms offered in either the case of (xsuch Preemptive Rights Notice) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and the approval within 90 days of the transaction by date of the Preemptive Rights Notice. Any Units not issued within such director is required pursuant 90-day period will be subject to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations pursuant to this Section 3 shall terminate upon an Initial Public Offering. For purposes the provisions of this Section 3, "Voting Stock" shall mean stock of the Company of any class or series entitled to vote generally in the election of directors of the Company2.7 upon subsequent issuance.

Preemptive Rights. (a) In the event of a proposed issuance by the Company to any Securityholder or any Third Party (the “Offeree”) of additional Equity Securities, including in connection with an Equity Cure, each Securityholder shall have the right, but not the obligation, to purchase up to that portion of such Equity Securities as is necessary (i) in the case of Common Equity Securities, to maintain such Securityholder’s relative ownership percentage of the aggregate amount of Common Stock then outstanding (on a fully diluted basis giving effect to the exercise of the Warrants and the full vesting of any then outstanding Unvested Management Shares, such portion, a “Pro Rata Share”) and (ii) in the case of Preferred Equity Securities, to purchase such Securityholder’s Pro Rata Share of such Preferred Equity Securities to be issued. Such right shall be offered to the Securityholders pursuant to a written notice from the Company (setting forth the price at which such Equity Securities are to be issued and all of the other material terms and conditions of the issuance) offering the Securityholders such Equity Securities on the same terms and conditions as offered to the Offeree (such notice, a “Preemptive Rights Notice”). Each Securityholder shall have ten (10) business days from the date of the Company’s delivery of the Preemptive Rights Notice to notify the Company in writing of its irrevocable acceptance of such offer with respect to all or any portion of the Equity Securities that are offered to the Offeree. (b) The Company shall have 180 days from the issuance of the Preemptive Rights Notice to consummate the proposed issuance of any or all of such Equity Securities that the Securityholders have not elected to purchase at the price and upon terms that are not less favorable to the Company than those specified in the Preemptive Rights Notice. If the Company proposes to issue or otherwise Transfer any such Equity Securities to any Personafter such 180-day period, then the Company it shall make the offer to sell and otherwise again comply with the requirements procedures set forth in this Section 3. Notwithstanding the foregoing, X. (Ac) the Company may Transfer Securities, and any right, title or interest therein, without making the offer This Section X shall not apply to sell set forth in this Section 3 in connection with (i) an Initial Public Offering, (ii) the issuance of up to 200,000 shares of Common Stock to management and employees of the Company pursuant to the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides for the issuance of Securities exclusively to directors, officers or employees of the Company, (iii) the issuance of shares of Common Stock upon exercise of the Warrants or upon conversion, exercise or exchange in accordance with their terms of other convertible, exercisable or exchangeable securities issued in accordance with this Agreement and (ii) shares of Common Stock issued or the issuance or grants of restricted stock or options to purchase Common Stock pursuant to the Employment Agreement Company’s or its subsidiaries’ stock option plans and the Warrants employee stock purchase plans or (iv) an issuance of Securities in consideration for and upon consummation of (x) a merger employment agreements with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority employees of the issued and outstanding shares Company or its subsidiaries (but not including issuances to members of Voting Stock management of the surviving entity or (y) an acquisition of assets or stock Company who are employed by the Company so long as, or its subsidiaries on the date of this Agreement). The rights set forth in either the case of (x) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations pursuant to this Section 3 X shall not apply to the issuance of shares of Common Stock in connection with, and will terminate automatically upon an Initial Public Offering. For purposes of this Section 3the consummation of, "Voting Stock" shall mean stock of the Company of any class or series entitled to vote generally in the election of directors of the Companya Qualified IPO.

Preemptive Rights. (a) If If, at any time after the date of this Agreement, the Company (subject to approval under Section 6.2(j)) proposes to issue or sell any Interests (including any Units) in the Company or securities directly or indirectly exercisable or exchangeable for, or convertible into, Interests (or Units) in the Company (including any option, warrant or other right to subscribe for, purchase or otherwise Transfer any Securities acquire Interests (or Units) in the Company, the “Preemptive Securities”), then, prior to any Personsuch issuance or sale, then the Company shall make give HHC and JG TopCo written notice of such proposed issuance or sale describing in reasonable detail the offer Preemptive Securities (including the number proposed to sell be issued or sold), the purchase price per unit of Preemptive Securities, the payment and otherwise comply with other material terms and such Member’s Preemptive Securities Pro Rata Portion (each such written notice, a “Preemptive Rights Notice”). Each of HHC and JG TopCo shall have the requirements option, exercisable by written notice to the Company within 30 days after receipt by such Member of the Preemptive Rights Notice (such written notice, an “Exercise Notice” and such period, the “Exercise Period”), to elect to purchase from the Company, on the same terms and conditions as set forth in this Section 3. Notwithstanding the foregoingPreemptive Rights Notice, (A) the Company may Transfer Securities, and any right, title or interest therein, without making the offer to sell set forth in this Section 3 in connection with (i) an Initial Public Offering, (ii) the issuance of up to 200,000 shares of Common Stock to management and employees of the Company pursuant to the Company's 1997 Equity and Performance Incentive Plan all or any portion of its Preemptive Securities Pro Rata Portion (as defined below), plus in the event the other incentive plan which provides for the issuance of Securities exclusively to directors, officers or employees of the Company, (iii) the issuance of shares of Common Stock pursuant to the Employment Agreement and the Warrants or (iv) an issuance of Securities in consideration for and upon consummation of (x) a merger Member does not exercise their pre-emptive rights hereunder with respect to which their entire Preemptive Securities Pro Rata Portion pursuant to a timely Exercise Notice, all or any portion of such Preemptive Securities in accordance with the holders of Voting Stock immediately prior to following sentence. The “Preemptive Securities Pro Rata Portion” for any Member shall be such merger beneficially own not less than a majority portion of the issued and outstanding shares Preemptive Securities equal to the Percentage Share of Voting Stock of such Member. In any Exercise Notice, the surviving entity or (y) an acquisition of assets or stock by the Company so long as, in either the case of (x) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by NuMember electing to exercise its pre-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any emptive rights or obligations pursuant to this Section 3 4.3 (each, an “Electing Member”) shall terminate upon specify the number of Preemptive Securities, up to its Preemptive Securities Pro Rata Portion, that it desires to purchase, and subject to the other Member not exercising his or its pre-emptive rights hereunder with respect to such other Member’s entire Preemptive Securities Pro Rata Portion pursuant to a timely Exercise Notice, such remaining portion of Preemptive Securities. Any Member who shall fail to give the Company an Initial Public Offering. For purposes Exercise Notice during the Exercise Period (or does not timely exercise such Member’s pre-emptive rights with respect to his or its Preemptive Securities Pro Rata Portion) shall be deemed to have forfeited such Member’s right to acquire the Preemptive Securities offered (or the portion thereof not exercised) pursuant to such Preemptive Rights Notice but, for the avoidance of doubt, any such failure shall not affect such Member’s pre-emptive rights pursuant to this Section 3, "Voting Stock" shall mean stock 4.3 with respect to any future issuances or sales of the Company of any class or series entitled to vote generally in the election of directors of the CompanyPreemptive Securities.

Preemptive Rights. (a) If The Investor will have the Company proposes to issue or otherwise Transfer any Securities to any Person, then the Company shall make the offer to sell and otherwise comply with the requirements preemptive rights set forth in this Section 3. Notwithstanding 10 with respect to any issuance of any Common Stock or Equity-Linked Securities that are issued after the foregoingdate hereof (any such issuance, (A) the Company may Transfer Securities, and any right, title or interest therein, without making the offer to sell set forth other than those described in this Section 3 in connection with clauses (i) an Initial Public Offeringthrough (iii) below, a “Preemptive Rights Issuance”), except for (i) issuances solely to officers, employees, directors and consultants pursuant to and in accordance with equity incentive plans of the Company that were publicly filed with the SEC prior to the date hereof (provided that any such issuances are made in accordance with the terms, conditions and limitations of such plans as they existed as of the date of hereof and without effect to any amendments or other modifications thereof after the date hereof unless approved in writing by the Investor) or pursuant to equity incentive plans of the Company that are approved by the Board and publicly filed with the SEC after the date hereof, (ii) the issuance of up to 200,000 shares of Common Stock to management and employees of the Company pursuant to the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides for the issuance of Securities exclusively to directors, officers or employees of the Company, (iii) the issuance issuances of shares of Common Stock as consideration in any merger or acquisition approved pursuant to the Employment Agreement and the Warrants Section 9(c), or (iviii) an issuance issuances of Securities shares of Common Stock upon conversion of any of the Company’s 0.75% Convertible Senior Notes, due 2019 (provided that any such issuances are made in consideration for accordance with the terms, conditions and upon consummation limitations of (x) a merger with respect to which the indenture governing such notes as it existed as of the date hereof). The preemptive rights in this Section 10 shall terminate at such time as the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority of the issued and outstanding shares of Voting Stock of the surviving entity or (y) an acquisition of assets or stock by the Company so long as, in either the case of (x) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has Series A Preferred no longer have the right to nominate directors a Series A Preferred Director to the Board pursuant to Section 4 hereof and the approval 8(b) of the transaction Certificate of Designations. (b) If the Company at any time, or from time to time, effects a Preemptive Rights Issuance, the Company shall give prompt written notice to the Investor (but in no event later than ten (10) days prior to such issuance), which notice shall set forth the number and type of the securities to be issued, the issuance date, the offerees or transferees, the price per security, and all of the other terms and conditions of such issuance, which shall be deemed updated by delivery of the final documentation for such director is required pursuant issuance to Section 5 hereof the Investor. The Investor may, by written notice to the Company (a "Qualifying Acquisition"“Preemptive Rights Notice”) delivered at any time thereafter but no later than twenty (20) days after the consummation of such Preemptive Rights Issuance, elect to purchase (or designate an affiliate to purchase) a number of securities specified in such Preemptive Rights Notice (which number may be any number up to but not exceeding the Preemptive Rights Cap Amount applicable to such Preemptive Rights Issuance), on the same terms and conditions as such Preemptive Rights Issuance (it being understood and agreed that (i) the price per security that the Investors shall pay shall be the same as the price per security set forth in the Preemptive Rights Notice, and (Bii) the Investors shall not be required to comply with any terms, conditions, obligations or restrictions (including, without limitation, any non-compete, standstill or other limitations but excluding any remaining period of a transfer or lock-up restriction applicable at such time to other purchasers in such Preemptive Rights Issuance) not necessary for the effectuation of the sale or issuance of such securities). If the Investor exercises its preemptive rights hereunder with respect to such Preemptive Rights Issuance, the Company shall (or obligations shall cause such subsidiary to) issue to the Investor (or its designated affiliate) the number of securities specified in such Preemptive Rights Notice promptly thereafter (and provided that, if the Investor shall have so notified the Company at least 3 Business Days prior to the issuance date set forth in the Company’s notice, at the Investor’s election such purchase and sale shall occur on the same date as, and immediately following, the Preemptive Right Issuance). For the avoidance of doubt, in the event that the issuance of Common Stock or Equity-Linked Securities in a Preemptive Rights Issuance involves the purchase of a package of securities that includes Common Stock or Equity-Linked Securities and other securities in the same Preemptive Rights Issuance, the Investor shall have the right to acquire its pro rata portion of such other securities, together with its pro rata portion of such Common Stock or Equity-Linked Securities, in the same manner described above (as to amount, price and other terms), or solely acquire the Common Stock or Equity-Linked Securities. (c) The election by the Investor not to exercise its preemptive rights hereunder in any one instance shall not affect its right as to any future Preemptive Rights Issuances. (d) Notwithstanding anything to the contrary in this Agreement, in the event that the Investor exercises its preemptive rights pursuant to this Section 3 shall terminate upon an Initial Public Offering. For purposes 10 and the purchase or issuance of this Section 3such securities would require the Company to obtain approval of its stockholders pursuant to NASDAQ listing rule 5635 (or any similar successor rule of NASDAQ or other United States national securities exchange that the Common Stock is listed upon, "Voting Stock" shall mean stock if any), the Company and the Investor will use their respective commercially reasonable efforts to negotiate in good faith the terms of any such transaction, including without limitation the terms of any securities of the Company issued pursuant to such transaction to the Investor, such that the 20 issuance to the Investor would not require such stockholder approval while providing the Investor with substantially similar benefits and rights of any class or series entitled to vote generally such securities issued in the election Preemptive Rights Issuance (including with respect to maintaining the Preferred Percentage (as defined in the Certificate of directors of the CompanyDesignations)).

Preemptive Rights. Subject to the terms and ----------------- conditions specified in this Section 7, prior to the completion of a Qualified IPO, in the event that the Corporation proposes to offer any shares of Common Stock or any Common Stock Equivalents (a "Preemptive Issuance"), the Corporation shall make an offering of such securities to each of the Stockholders in accordance with the following provisions: (a) If The Corporation shall deliver a notice (the Company proposes "Notice") to issue or otherwise Transfer any Securities to any Person, then each of the Company shall make the offer to sell and otherwise comply with the requirements set forth in this Section 3. Notwithstanding the foregoing, (A) the Company may Transfer Securities, and any right, title or interest therein, without making the offer to sell set forth in this Section 3 in connection with Stockholders stating (i) an Initial Public Offeringits bona fide intention to offer such securities, (ii) the issuance number of up such securities to 200,000 shares of Common Stock to management be offered and employees of the Company pursuant to the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides for the issuance of Securities exclusively to directors, officers or employees of the Company, (iii) the issuance price and terms, if any, upon which it proposes to offer such securities. (b) By written notification received by the Corporation, within fifteen (15) calendar days after giving of the Notice, each of the Stockholders may elect to purchase or obtain, at the price (the "Price") and on the terms specified in the Notice, up to that number or amount of such new Common Stock or Common Stock Equivalents, such that (x) the percentage of the outstanding Stock Beneficially Owned by such Stockholder and its Affiliates after the Preemptive Issuance (assuming full conversion of all convertible securities, but not taking into account with respect to any Preemptive Issuance any unexercised Warrants with an exercise price greater than the Price and after giving effect to any adjustments in the number of shares of Common Stock issuable upon exchange or conversion of any Common Stock Equivalent which will result from the Preemptive Issuance), equals (y) the percentage of the outstanding Stock Beneficially Owned by such Stockholder and its Affiliates immediately prior to the Preemptive Issuance (assuming full conversion of all convertible securities, but not taking into account with respect to any Preemptive Issuance any unexercised Warrants with an exercise price greater than the Price, and after giving effect to any adjustments in the number of shares of Common Stock issuable upon exchange or conversion of any Common Stock Equivalent which will result from the Preemptive Issuance). Any Stockholder may assign his or its right to purchase Common Stock or Common Stock Equivalents hereunder to his or its respective Affiliates. (c) If all securities referred to in the Notice which the Stockholders are entitled to purchase pursuant to subsection (b) are not elected to be purchased as provided in subsection (b), the Employment Agreement Corporation may, during the one hundred twenty (120) day period following the expiration of the twenty (20) day period provided in subsection (b) hereof, offer the remaining unsubscribed portion of such securities to any Person or Persons at a price not less than the Price, and upon terms no more favorable to the Warrants offeree than those specified in the Notice. If the Corporation 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 thereunder shall be deemed to be revived and such securities shall not be offered unless first reoffered in accordance with this Section 7. (d) This Section 7 shall not be applicable with respect to: (i) Common Stock and/or Common Stock Equivalents issuable or issued to employees or outside directors of the Corporation directly or pursuant to a stock option plan, restricted stock plan or similar employee plan or agreement (including any employment agreement) approved by the Board in accordance with Section 9 hereof, the primary purpose of which is not to raise additional equity capital for the Corporation; (ii) Common Stock issued or issuable upon conversion or exercise of any securities outstanding on the date hereof and set forth on Schedule 7 hereto, upon conversion or exercise of the Common Stock Equivalents referred to in clauses (i), (iii), (iv) an issuance of Securities in consideration for and upon consummation of (x) a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority of the issued and outstanding shares of Voting Stock of the surviving entity or (yv) an acquisition hereof or upon exercise of assets securities issued or stock by the Company so long as, in either the case of (x) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations issuable pursuant to this Section 3 shall terminate upon an Initial Public Offering. For purposes Agreement: (iii) Common Stock and/or Common Stock Equivalents issued or issuable as direct consideration for the acquisition by the Corporation of this Section 3, "Voting Stock" shall mean capital stock or assets of another business entity or in connection with a merger or consolidation; (iv) Common Stock and/or Common Stock Equivalents issued in any registered public offering of the Company Corporation's securities; or (v) Preferred Stock issued or issuable to key members of any class or series entitled management, as contemplated by the Purchase Agreement, the total number of such shares not to vote generally in the election of directors exceed 1% of the Companynumber of shares of Common Stock outstanding (the "Management Shares").

Preemptive Rights. (a) If Subject to the terms and conditions of this Section 5.5 and applicable securities laws, and any consent required hereunder, if the Company proposes to issue offer or otherwise Transfer sell any Securities to any PersonNew Securities, then the Company shall make first offer such New Securities to each Major Holder. (b) The Company shall give notice (the offer “Offer Notice”) to sell and otherwise comply with the requirements set forth in this Section 3. Notwithstanding the foregoingeach Major Holder, (A) the Company may Transfer Securities, and any right, title or interest therein, without making the offer to sell set forth in this Section 3 in connection with stating (i) an Initial Public Offeringits bona fide intention to offer such New Securities, (ii) the issuance number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities. (c) By notification to the Company within twenty (20) days after the Offer Notice is given, each Major Holder may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to 200,000 shares that portion of such New Securities which equals the proportion that the Common Stock Units issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Preferred Units and any other Derivative Securities then held, by such Major Holder bears to management and employees the total Common Units of the Company pursuant then outstanding (assuming full conversion and/or exercise, as applicable, of all Preferred Units and other Derivative Securities). At the expiration of such twenty (20) day period, the Company shall promptly notify each Major Holder that elects to purchase or acquire all the securities available to it (each, a “Fully Exercising Major Holder”) of any other Major Holder’s failure to do likewise. During the ten (10) day period commencing after the Company has given such notice, each Fully Exercising Major Holder may, by giving notice to the Company's 1997 Equity , elect to purchase or acquire, in addition to the number of securities specified above, up to that portion of the New Securities for which Major Holders were entitled to subscribe but that were not subscribed for by the Major Holders which is equal to the proportion that the Common Units issued and Performance Incentive Plan held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Preferred Units and any other incentive plan which provides Derivative Securities then held, by such Fully Exercising Major Holder bears to the Common Units issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Preferred Units and any other Derivative Securities then held, by all Fully Exercising Major Holders who wish to purchase such unsubscribed securities. The closing of any sale pursuant to this Section shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to subsection (a) of this Section. (d) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in subsection (b) of this Section, the Company may, during the ninety (90) day period following the expiration of the periods provided in subsection (b) of this Section (or such longer period as the Board determines to keep such offer open), offer and sell the remaining unsubscribed portion of such New 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 Offer Notice. If the Company does not enter into an agreement for the issuance of Securities exclusively to directors, officers or employees sale of the CompanyNew Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Holders in accordance with this Section. (e) The right of first offer in this Section shall not be applicable to (i) Exempted New Securities; (ii) securities issued in the IPO (so long as all Major Holders have the same, pro rata, right to participate in any purchase thereof on the same terms); and (iii) the issuance of shares of Common Stock pursuant Series B Preferred Units under the Series B Purchase Agreement. (f) The covenants set forth in this Section shall terminate and be of no further force or effect (i) immediately before the consummation of the IPO, (ii) when the Company first becomes subject to the Employment Agreement and periodic reporting requirements of Section 12(g) or 15(d) of the Warrants Exchange Act, or (iviii) an issuance of Securities in consideration for and upon consummation of a Deemed Liquidation Event, whichever event occurs first. (xg) a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority of the issued and outstanding shares of Voting Stock of the surviving entity or (y) an acquisition of assets or stock by the Company so long as, in either the case of (x) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations pursuant to this Section 3 shall terminate upon an Initial Public Offering. For purposes of this Section 3Agreement, "Voting Stock" the term “Exempted New Securities” shall mean mean: (i) New Securities issued as a stock or unit dividend or other distribution or upon any subdivision, split or combination of the currently outstanding Units (or any such Units the original issuance of which was conducted in accordance with this Section); (ii) New Securities issued upon conversion, exchange or redemption of any currently outstanding convertible or exchangeable securities (or any New Securities the original issuance of which was conducted in accordance with this Section); (iii) New Securities issued upon exercise of any currently outstanding options or warrants (or any such options or warrants the original issuance of which was conducted in accordance with this Section); (iv) New Securities issued to any employee, former employee, consultant, financial or other advisor, Manager or advisory board member of the Company or any of its subsidiaries as compensation or as an incentive for services, including in connection with the implementation of the Transaction Bonus Plan pursuant to Section 5.1(d); (v) New Securities issued as consideration (whether partial or otherwise) for the purchase by the Company or any of its subsidiaries of assets constituting a business unit or of the stock or other equity securities of any class Person or series entitled Persons; (vi) New Securities issued pursuant to vote generally in the election of directors of the Company.a Public

Preemptive Rights. (a) If the Company proposes to issue or otherwise Transfer any Securities to any Person, then the Company shall make the offer to sell and otherwise comply with the requirements Except as set forth in this Section 3subsection (b) below, the Company will not issue, sell or otherwise transfer to the Xxxx Stockholders or the Bear Xxxxxxx Stockholders (an "Issuance") at any time prior to a Public Offering, any capital -------- stock or debt securities (or securities convertible into or exercisable or exchangeable for capital stock or debt securities) unless, at least 15 days prior to such Issuance, the Company notifies each holder of Executive Stock in writing of the Issuance (including the price, the purchasers thereof and the other terms thereof) and grants to each holder of Executive Stock, the right (the "Right") to subscribe for and purchase a portion of such additional shares ----- or other securities so issued at the same price and on the same terms as issued in the Issuance equal to the quotient determined by dividing (1) the number of fully diluted shares of Class A Common and Class B Common held by such holder by (2) the total number of shares of Class A Common and Class B Common outstanding on a fully diluted basis. Notwithstanding the foregoing, if all Persons entitled to purchase or receive such stock or securities are required to also purchase other securities of the Company, the holders of capital stock exercising their Right pursuant to this Section shall also be required to purchase the same strip of securities (Aon the same terms and conditions) that such other Persons are required to purchase. The Right may be exercised by such holder at any time by written notice to the Company may Transfer Securitiesreceived by the Company within 10 days after receipt by such holder of the notice from the Company referred to above. The closing of the purchase and sale pursuant to the exercise of 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. (b) Notwithstanding the foregoing, and any right, title or interest therein, without making the offer Right shall not apply to sell set forth in this Section 3 in connection with (i) an Initial Public Offeringissuances of capital stock or debt securities (or securities convertible into or exchangeable for, or options to purchase, capital stock or debt securities), pro rata to all holders of any class of Stock, as a dividend on, subdivision of or other distribution in respect of, such class of capital stock, (ii) the issuance conversions or exchanges of up to 200,000 shares one class or form of Common Stock to management and employees capital stock into another class or form of the Company pursuant to the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides for the issuance of Securities exclusively to directors, officers or employees of the Companycapital stock, (iii) issuances of capital stock upon exercise of any debt security issued by the issuance of shares of Common Stock pursuant to the Employment Agreement and the Warrants Company, or (iv) an the issuance of Securities capital stock (or securities convertible into or exchangeable for, or options to purchase, capital stock) on customary, arm's length terms in consideration for and upon consummation of (x) a merger connection with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority of the issued and outstanding shares of Voting Stock of the surviving entity or (y) an acquisition of assets or stock provision by the Xxxx Stockholders or the Bear Xxxxxxx Stockholders of debt financing to the Company so long as, in either the case of or its Subsidiaries. (xc) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations pursuant to this Section 3 shall terminate upon an Initial Public Offering. For purposes The provisions of this Section 3, "Voting Stock" shall mean stock 11 will terminate upon the consummation of the Company of any class a Public Offering or series entitled to vote generally in the election of directors of the Companyupon a Xxxx Exit.

Preemptive Rights. (a) If the Company Board of Managers proposes to issue any additional Equity Interests in the Company ("New Equity Interests"), other than issuances of Class C Units to employees or otherwise Transfer consultants of the Company or any Securities of its Affiliates, to any PersonPerson (such transaction, a "New Equity Issuance"), then each Class A Member and Class B-2 Member shall have the Company shall make the offer to sell and otherwise comply with the requirements preemptive rights set forth in this Section 3. Notwithstanding 2.05. (b) At least fifteen (15) Business Days prior to consummation of any New Equity Issuance, t he Board of Managers shall deliver a written notice (a "New Equity Issuance Notice"') thereof to each Class A Member and Class B-2 Member, setting forth all of the foregoing, (A) material terms and conditions on which the Company may Transfer Securities, and proposes to issue the New Equity Interests. In the event that there are any right, title or interest therein, without making material changes in the offer to sell set forth in this Section 3 in connection with (i) an Initial Public Offering, (ii) the issuance of up to 200,000 shares of Common Stock to management and employees terms of the New Equity Issuance as reflected in the New Equity Issuance Notice, then at least five (5) Business Days p rior to consummation of the New Equity Issuance the Board of Managers shall deliver an updated New Equity Issuance Notice to such Members, setting forth all of the material terms and conditions on which the Company pursuant proposes to issue the New Equity Interests. (c) Each such Member shall have at least ten (10) Business Days from the date of receipt of a New Equity Issuance Notice to agree, by written notice to the Company, to purchase, in such Member's 1997 sole discretion, such Member's pro-rata portion of the New Equity and Performance Incentive Plan Interests. In the event that an updated New Equity Issuance Notice is given, each such Member shall have at least three (3) Business Days from the date of receipt of suc h updated New Equity Issuance Notice to rescind or any other incentive plan which provides for the issuance of Securities exclusively revise, by written notice to directors, officers or employees of the Company, (iii) the issuance of shares of Common Stock pursuant to the Employment Agreement and the Warrants or (iv) an issuance of Securities in consideration for and upon consummation of (x) a merger any prior election with respect to which such New Equity Issuance. (d) If after delivering a New Equity Issuance Notice the holders of Voting Stock immediately prior to such merger beneficially own Company does not less than a majority consummate the New Equity Issuance within ten (10) Business Days followingthe end of the issued and outstanding shares of Voting Stock of the surviving entity or (y) an acquisition of assets or stock by the Company so long as, in either the case of (x) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations pursuant to this Section 3 shall terminate upon an Initial Public Offering. For purposes of this Section 3, "Voting Stock" shall mean stock of the Company of any class or series entitled to vote generally in the election of directors of the Company.ten

Preemptive Rights. (ai) If Following the date hereof, except (x) with respect to the Company’s exercise of preemptive rights provided to the Company pursuant to the Partnership Agreement, which shall be governed by the Partnership Agreement, and (y) distributions or other payments paid in kind, if the Company proposes to issue issue, offer or otherwise Transfer sell any Membership Interests or other equity securities or equity-linked securities of the Company (“New Securities”) to, or, subject to Section 4.2, receive any loans at any time from, any of the Class A Members or any Affiliate of a Class A Member, then the Company, as directed by the Class A Members, shall either (1) obtain the prior written consent of the Class D Member, which consent shall not be unreasonably withheld, conditioned or delayed or (2) offer the Class D Member the opportunity to purchase such New Securities or participate in any such loan to the Company on a proportionate basis to the Class D Member’s Sharing Percentage at a price per New Security equal to the price per New Security at which such Membership Interests are being issued to the Class A Members or their respective Affiliates or, in the case of such a loan, on the same terms as are agreed by the Class A Member(s) or their Affiliates providing such loan to the Company. (ii) Following the date hereof, if the Company proposes to issue, offer or sell any New Securities to any PersonClass A Member or any Affiliate thereof in conjunction with any merger, consolidation, sale of all or substantially all of the Company’s assets, reorganization or other business combination, then the Company, as directed by the Class A Members, shall either (1) obtain the prior written consent of the Class D Member, which consent shall not be unreasonably withheld, conditioned or delayed, to the issuance, offer or sale of such New Securities, or (2) obtain the prior approval of such issuance, offer or sale by the Board, including approval by the majority of the Independent Committee, or (3) issue such New Securities on terms that are “fair,” with such determination of whether the terms of such New Securities are “fair” to be deemed satisfied if (A) at least 40% of such New Securities are purchased by a bona fide third party or (B) an independent financial advisory firm selected by the Board (which financial advisory firm shall not have represented the Company or the Partnership as an underwriter, placement agent or lender within the preceding 24 months) provides an opinion stating that the terms are fair, from a financial point of view, to the Company. (iii) If the Class A Members elect, on behalf of the Company, to provide preemptive rights to the Class D Member in connection with the proposal to issue New Securities pursuant to Section 3.1(g)(i)(2) above, then the Company shall make give prompt written notice (the “New Issue Notice”) of the Company’s proposal to issue, offer or sell New Securities to sell and otherwise comply with the requirements Class D Member. The New Issue Notice shall set forth in this Section 3. Notwithstanding the foregoing, (A) the Company may Transfer New Securities being offered, (B) the price and terms, if any, upon which the Partnership proposes to issue, offer and sell the New Securities and (C) the proposed date of the closing of the issuance of such New Securities, . The Class D Member shall have fifteen (15) days after receipt of the New Issue Notice to submit a written notice (a “New Issue Exercise Notice”) to the Company. The Class D Member shall have the right to elect to purchase up to a number of New Securities equal to the Class D Member’s pro rata share (based on the ratio of the Class D Member’s Sharing Percentage to the aggregate Sharing Percentages of the Class A Members and any right, title or interest therein, without making Class D Member) at the offer to sell price and on the terms set forth in this Section 3 the New Issue Notice. The New Issue Exercise Notice shall set forth the portion of the New Securities that the Class D Member elects to purchase. To the extent that the Class D Member does not elect to purchase its pro rata share of any proposed issuance, the Class A Members shall have the opportunity to increase their participation in connection with (i) an Initial Public Offering, (ii) the such proposed issuance of up to 200,000 shares of Common Stock to management and employees of the Company pursuant to the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides for the issuance of Securities exclusively to directors, officers or employees of the Company, (iii) the issuance of shares of Common Stock pursuant to the Employment Agreement and the Warrants or (iv) an issuance of New Securities in consideration for and upon consummation of (x) a merger with respect to which such amounts as agreed by the holders of Voting Stock immediately prior to such merger beneficially own not less than Class A Members holding a majority of the issued and then-outstanding shares Class A Membership Interests. (iv) For the avoidance of Voting Stock of doubt, nothing in this Agreement is intended to or shall be construed (a) to prohibit the surviving entity Class A Members from pursuing any business opportunity in concert with the Partnership, or (yb) an acquisition of assets require that any Class A Member or stock by the Company so long asPartnership offer to the Class D Member any preemptive or other participatory right in any such business opportunity, in either and the case of Class D Member hereby expressly disclaims any and all rights with respect to any such business opportunity. (xv) Following the date hereof, if at any time EIG and Tailwater fail to collectively hold Holdings LP Voting Control or (y)Holdings GP Voting Control, such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors Class D Member’s rights pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition"3.1(g)(i) and (BSection 3.1(g)(ii) any rights or obligations pursuant shall automatically terminate and will cease to this Section 3 shall terminate upon an Initial Public Offering. For purposes of this Section 3, "Voting Stock" shall mean stock of the Company be of any class or series entitled to vote generally in the election of directors of the Companyforce and effect thereafter.

Preemptive Rights. (a) If the Company proposes to issue issue, grant or otherwise Transfer any Securities to any Personsell Common Stock or Rights, then the Company shall make first give to the offer Purchasers (so long as the Purchasers own at least 500,000 Shares) and any transferee (of whom the Company has notice) of Shares from any Purchaser then owning at least 500,000 Shares (appropriately adjusted for any stock split, reverse stock split or stock dividend), except for any transferee that acquires such Shares in a public offering registered under the Securities Act or in a transaction on the open market effected pursuant to sell Rule 144 under the Securities Act, (each a "Securityholder") written notice setting forth in reasonable detail the price and otherwise comply with other terms on which such shares of Common Stock or Rights are proposed to be issued or sold, the requirements terms of any such Rights and the amount thereof proposed to be issued, granted or sold. Each Securityholder shall thereafter have the preemptive right, exercisable by written notice to the Company no later than twenty (20) days after the Company's notice is given, to purchase the number of such shares of Common Stock or Rights set forth in the Securityholder's notice (but in no event more than the Securityholder's Proportionate Share (as defined below) thereof, as of the date of the Company's notice), at the price and on the other terms set forth in the Company's notice. Any notice by a Securityholder exercising the right to purchase shares of Common Stock or Rights pursuant to this Section 5.3 shall constitute an irrevocable commitment to purchase from the Company the shares of Common Stock or Rights specified in such notice, subject to the maximum set forth in the preceding sentence. If all the Securityholders exercise their preemptive rights set forth in this Section 3. Notwithstanding 5.3(a) to the foregoingfull extent of their Proportionate Share or if for any other reason the Company shall not issue, grant or sell shares of Common Stock or Rights to persons other than Securityholders, then the closing of the purchase of shares of Common Stock or Rights by Securityholders shall take place on such date, no less than ten (A10) and no more than thirty (30) days after the expiration of the 20-day period referred to above, as the Company may Transfer Securitiesselect, and any rightthe Company shall notify the Securityholders of such closing at least seven (7) days prior thereto. If all persons entitled thereto do not exercise their preemptive rights to the full extent of their Proportionate Share and, title as contemplated by Section 5.3(b), the Company shall issue, grant or interest thereinsell shares of Common Stock or Rights to persons other than Securityholders, without making then the offer closing of the purchase of shares of Common Stock or Rights shall take place at the same time as the closing of such issuance, grant or sale. (b) If all persons entitled thereto do not exercise their preemptive rights to the full extent of their Proportionate Share, the Company shall use its good faith and commercially reasonable efforts to issue, grant or sell the remaining subject shares of Common Stock or Rights on the terms set forth in its notice to Securityholders, unless the Company is advised by its financial advisors that the remaining number or amount is too small to be reasonably sold. From the expiration of the 20-day period first referred to in Section 5.3(a) and for a period of 90 days thereafter, the Company may offer, issue, grant and sell to any person or entity shares of Common Stock or Rights having the terms set forth in the Company's notice relating to such shares of Common Stock or Rights at a price and on other terms no less favorable to the Company, and including no less cash, than those set forth in such notice (without deduction for reasonable underwriting, sales agency and similar fees payable in connection therewith); provided, however, that the Company may not issue, grant or sell shares of Common Stock or Rights in an amount greater than the amount set forth in such notice minus the amount purchased or committed to be purchased by Securityholders rights. (c) The provisions of this Section 3 in connection with 5.3 shall not apply to the following issuances of securities: (i) pursuant to an Initial Public Offeringapproved stock option plan, stock purchase plan, or similar benefit program or agreement for the benefit of employees of, or consultants to, the Company, where the primary purpose is not to raise additional equity capital for the Company, (ii) the issuance of up to 200,000 shares of Rights, or Common Stock issuable upon exercise of Rights, granted to management and employees of the Company pursuant to business partners, retailers or lessors engaged in bona fide business transactions with the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides , where the primary purpose is not to raise additional equity capital for the issuance of Securities exclusively to directors, officers or employees of the Company, (iii) as direct consideration for the issuance acquisition by the Company of another business entity or the merger of any business entity with or into the Company, (iv) in connection with a stock dividend, (v) upon the exercise of warrants or options, or upon the conversion of convertible securities, outstanding on the date hereof or as to which Securityholders have been previously offered the right to participate as contemplated hereby or (vi) in an underwritten public offering registered under the Securities Act if the managing underwriters advise the Securityholders in writing that the purchase of shares of Common Stock pursuant to the Employment Agreement preemptive rights afforded by this Section 5.3 would materially and adversely affect the Warrants or (iv) an issuance of Securities in consideration for and upon consummation of (x) a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority marketing of the issued and outstanding shares of Voting Stock of the surviving entity or offering. (yd) an acquisition of assets or stock by the Company so long as, in either the case of (x) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations pursuant to this Section 3 shall terminate upon an Initial Public Offering. For purposes of this Section 35.3, "Voting Stock" the following terms shall mean stock of have the Company of any class or series entitled to vote generally in the election of directors of the Company.corresponding meanings set forth herein:

Preemptive Rights. (a) If For so long as the Company proposes to issue or otherwise Transfer any Securities to any PersonInvestor’s As-Converted Common Stock Ownership Percentage is at least 10%, then the Company shall make Investor will have the offer to sell and otherwise comply with the requirements preemptive rights set forth in this Section 3. Notwithstanding 9 with respect to any issuance of any Common Stock or Equity-Linked Securities that are issued after the foregoingEffective Date (any such issuance, other than those described in clauses (Ax) through (z) below, a “Preemptive Rights Issuance”), except for (1) issuances solely to employees, officers, consultants, agents and directors pursuant to and in accordance with the Company may Transfer SecuritiesLTIP in the form publicly filed with the SEC prior to the Effective Date (provided that any such issuances are made in accordance with the terms, conditions and any right, title or interest therein, without making the offer to sell set forth in this Section 3 in connection with (i) an Initial Public Offering, (ii) the issuance of up to 200,000 shares of Common Stock to management and employees limitations of the Company LTIP as they existed as of the date of hereof and without giving effect to any amendments or other modifications thereof after the Effective Date unless approved in writing by the Investor) or pursuant to the Company's 1997 Equity and Performance Incentive Plan stock incentive plans or any other incentive plan which provides for the issuance of Securities exclusively to directors, officers similar plans or employees programs of the CompanyCompany that are approved by the Board and publicly filed with the SEC after the Effective Date, (iii2) the issuance of shares sales of Common Stock pursuant to a registered and broadly distributed underwritten public offering if such transaction was approved in accordance with the Employment Agreement Company Charter Documents (including the Certificate of Designations and the Warrants terms of this Agreement), (3) issuances of any securities issued as a result of a stock split, stock dividend, reclassification or similar event affecting all of the outstanding Common Stock, (4) the issuance of the Series A Preferred Stock in connection with conversion of the Note or the issuance of Common Stock in connection with the conversion of the Contingent Payment Right, or (iv5) an issuance of Securities in consideration for and upon consummation of (x) a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority of the issued and outstanding shares of Voting Stock of the surviving entity or (y) an acquisition of assets or stock by the Company so long as, in either the case of (x) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations pursuant to this Section 3 shall terminate upon an Initial Public Offering. For purposes of this Section 3, "Voting Stock" shall mean stock Subsidiary of the Company of any class issued to the Company or series entitled to vote generally in the election of directors a wholly owned Subsidiary of the Company. (b) If the Company at any time or from time to time effects a Preemptive Rights Issuance, the Company shall give prompt written notice to the Investor (but in no event later than ten (10) days prior to such issuance), which notice shall set forth the number and type of the securities to be issued, the issuance date, the offerees or transferees, the price per security, and all of the other terms and conditions of such issuance, which shall be deemed updated by delivery of the final documentation for such issuance to the Investor. The Investor may, by written notice to the Company (a “Preemptive Rights Notice”) delivered at any time thereafter but no later than thirty (30) days after the consummation of such Preemptive Rights Issuance, elect to purchase (or designate an affiliate to purchase) a number of securities specified in such Preemptive Rights Notice (which number may be any number up to but not exceeding the Preemptive Rights Cap Amount applicable to such Preemptive Rights Issuance), on the same terms and conditions as such Preemptive Rights Issuance (it being understood and agreed that (i) the price per security that the Investors shall pay shall be the same as the price per security set forth in the Preemptive Rights Notice, and (ii) the Investors shall not be required to comply with any terms, conditions, obligations or restrictions (including, without limitation, any non-compete, standstill or other limitations but excluding any remaining period of a transfer or lock-up restriction applicable at such time to other purchasers in such Preemptive Rights Issuance) not necessary for the effectuation of the sale or issuance of such securities). If the Investor exercises its preemptive rights hereunder with respect to such Preemptive Rights Issuance, the Company shall (or shall cause such subsidiary to) issue to the Investor (or its designated affiliate) the number of securities specified in such Preemptive Rights Notice promptly thereafter (and provided that, if the Investor shall have so notified the Company at least three (3) business days prior to the issuance date set forth in the Company’s notice, at the Investor’s election such purchase and sale shall occur on the same date as, and immediately following, the Preemptive Right Issuance). For the avoidance of doubt, in the event that the issuance of Common Stock or Equity-Linked Securities in a Preemptive Rights Issuance involves the purchase of a package of securities that includes Common Stock or Equity-Linked Securities and other securities in the same Preemptive Rights Issuance, the Investor shall have the right to acquire its pro rata portion of such other securities, together with its pro rata portion of such Common Stock or Equity-Linked Securities, in the same manner described above (as to amount, price and other terms), or solely acquire the Common Stock or Equity-Linked Securities. (c) The election by the Investor not to exercise its preemptive rights hereunder in any one instance shall not affect its right as to any future Preemptive Rights Issuances.

Preemptive Rights. (ai) Neither the Company nor the Partnership (individually or together referred to as "Issuer") will issue or sell or otherwise transfer any "equity securities" (including any options, warrants, securities convertible, exchangeable or exercisable into equity or any other securities containing equity features) (an "Issuance") unless, at least 30 days and not more than 60 days prior to such Issuance, Issuer notifies each holder of Securities in writing of the Issuance (including the price, the purchaser(s) thereof and other terms thereof) and grants to each holder of Securities in such Issuer, the right (the "Right") to subscribe for and purchase such additional stock or other Securities so issued at the same price and on the same terms to be issued in the Issuance such that, after giving effect to the Issuance and exercise of the Right, the shares owned by such holder shall represent the same percentage of total voting and economic interests (on a fully diluted basis) in such Issuer as was owned by such holder prior to the Issuance, or such lesser amount designated by such holder. The Right may be exercised by such holder or its nominee at any time by written notice by such holder to Issuer received within 30 days after receipt of notice by such holder from Issuer of the Issuance. The closing of the purchase and sale pursuant to the exercise of the Right shall occur at least 10 days after Issuer receives notice of the exercise of the Right and concurrently with the closing of the Issuance. (ii) Notwithstanding the foregoing, the Right shall not apply to (A) issuances of securities pro rata to all holders of Securities, as a dividend on, subdivision of, or other distribution in respect of, Securities, (B) options and sales of securities to management in the ordinary course of business as approved by the Board (including under the Executive Agreements) and (C) issuances in connection with a public offering of securities by the Partnership or the Company. (iii) If all of the Company proposes Issuance offered to issue or otherwise Transfer any the holders of Securities of such Issuer are not fully subscribed by such holders, the shares that are not so subscribed for will be reoffered to any Person, then such holders purchasing their full allotment upon the Company shall make the offer to sell and otherwise comply with the requirements terms set forth in this Section 3. Notwithstanding paragraph 2(d) except that such holders must exercise their purchase rights within five (5) days after the foregoingreceipt of such reoffer. (iv) Upon the expiration of the offering periods described above, (A) the Company may Transfer Securities, and any right, title or interest therein, without making the offer Issuer will be free to sell set forth such Issuance during the one hundred twenty (120) days following such expiration on terms and conditions no more favorable to the purchaser(s) thereof than those offered to such (v) If any holder of Securities in this Section 3 such Issuer determines that it may have a regulatory problem if issued securities of the class in connection with the proposed Issuance, the Issuer shall, upon written request of such holder, take all such commercially reasonable actions requested by such holder to allow such holder to purchase securities which are identical to the securities of the proposed Issuance, except that such securities shall be non-voting and shall be convertible into securities issued in the Issuance on such terms as are requested by such holder in light of regulatory considerations then prevailing. (vi) Except for Issuances subject to subparagraph (i) an Initial Public Offering, above or excluded from subparagraph (i) pursuant to subparagraph (ii) the issuance of up to 200,000 shares of Common Stock to management and employees of the Company pursuant to the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides for the issuance of Securities exclusively to directors, officers or employees of the Company, (iii) the issuance of shares of Common Stock pursuant to the Employment Agreement and the Warrants or (iv) an issuance of Securities in consideration for and upon consummation of (x) a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority of the issued and outstanding shares of Voting Stock of the surviving entity or (y) an acquisition of assets or stock by the Company so long as, in either the case of (x) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations pursuant to this Section 3 shall terminate upon an Initial Public Offering. For purposes of this Section 3, "Voting Stock" shall mean stock of neither the Company of the Partnership will authorize or issue any class equity securities including any stock appreciation rights or series entitled phantom stock rights (each right to vote generally in the election of directors of the Companybe considered on a per share basis).

Preemptive Rights. (a) If Subject to the terms and conditions of this Section 5.5 and applicable securities laws, and any consent required hereunder, if the Company proposes to issue offer or otherwise Transfer sell any Securities to any PersonNew Securities, then the Company shall make first offer such New Securities to each Major Holder. (b) The Company shall give notice (the offer “Offer Notice”) to sell and otherwise comply with the requirements set forth in this Section 3. Notwithstanding the foregoingeach Major Holder, (A) the Company may Transfer Securities, and any right, title or interest therein, without making the offer to sell set forth in this Section 3 in connection with stating (i) an Initial Public Offeringits bona fide intention to offer such New Securities, (ii) the issuance number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities. (c) By notification to the Company within twenty (20) days after the Offer Notice is given, each Major Holder may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to 200,000 shares that portion of such New Securities which equals the proportion that the Common Stock Units issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Preferred Units and any other Derivative Securities then held, by such Major Holder bears to management and employees the total Common Units of the Company pursuant then outstanding (assuming full conversion and/or exercise, as applicable, of all Preferred Units and other Derivative Securities). At the expiration of such twenty (20) day period, the Company shall promptly notify each Major Holder that elects to purchase or acquire all the securities available to it (each, a “Fully Exercising Major Holder”) of any other Major Holder’s failure to do likewise. During the ten (10) day period commencing after the Company has given such notice, each Fully Exercising Major Holder may, by giving notice to the Company's 1997 Equity , elect to purchase or acquire, in addition to the number of securities specified above, up to that portion of the New Securities for which Major Holders were entitled to subscribe but that were not subscribed for by the Major Holders which is equal to the proportion that the Common Units issued and Performance Incentive Plan held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Preferred Units and any other incentive plan which provides Derivative Securities then held, by such Fully Exercising Major Holder bears to the Common Units issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Preferred Units and any other Derivative Securities then held, by all Fully Exercising Major Holders who wish to purchase such unsubscribed securities. The closing of any sale pursuant to this Section shall occur within the later of ninety (90) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to subsection (a) of this Section. (d) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in subsection (b) of this Section, the Company may, during the ninety (90) day period following the expiration of the periods provided in subsection (b) of this Section (or such longer period as the Board determines to keep such offer open), offer and sell the remaining unsubscribed portion of such New 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 Offer Notice. If the Company does not enter into an agreement for the issuance of Securities exclusively to directors, officers or employees sale of the CompanyNew Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Holders in accordance with this Section. (e) The right of first offer in this Section shall not be applicable to (i) Exempted New Securities; (ii) securities issued in any Public Offering (so long as all Major Holders have the same, pro rata, right to participate in any purchase thereof on the same terms); and (iii) the issuance of shares of Common Stock pursuant Series B Preferred Units under either the Series B Purchase Agreement or the A&R Series B Purchase Agreement and up to 23,529,412 Series B-1 Preferred Units under the Series B-1 Purchase Agreements. (f) The covenants set forth in this Section shall terminate and be of no further force or effect (i) immediately before the consummation of the Company’s initial Public Offering, (ii) when the Company first becomes subject to the Employment Agreement and periodic reporting requirements of Section 12(g) or 15(d) of the Warrants Exchange Act, or (iviii) an issuance of Securities in consideration for and upon consummation of a Deemed Liquidation Event, whichever event occurs first. (xg) a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority of the issued and outstanding shares of Voting Stock of the surviving entity or (y) an acquisition of assets or stock by the Company so long as, in either the case of (x) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations pursuant to this Section 3 shall terminate upon an Initial Public Offering. For purposes of this Section 3Agreement, "Voting Stock" the term “Exempted New Securities” shall mean mean: (i) New Securities issued as a stock or unit dividend or other distribution or upon any subdivision, split or combination of the currently outstanding Units (or any such Units the original issuance of which was conducted in accordance with this Section); (ii) New Securities issued upon conversion, exchange or redemption of any currently outstanding convertible or exchangeable securities (or any New Securities the original issuance of which was conducted in accordance with this Section); (iii) New Securities issued upon exercise of any currently outstanding options or warrants (or any such options or warrants the original issuance of which was conducted in accordance with this Section); (iv) New Securities issued to any employee, former employee, consultant, financial or other advisor, Manager or advisory board member of the Company or any of its subsidiaries as compensation or as an incentive for services, including in connection with the implementation of the Transaction Bonus Plan pursuant to Section 5.1(d); (v) New Securities issued as consideration (whether partial or otherwise) for the purchase by the Company or any of its subsidiaries of assets constituting a business unit or of the stock or other equity securities of any class Person or series entitled Persons; (vi) New Securities issued pursuant to vote generally a Public Offering; (vii) New Securities issued in connection with the election of directors conversion of the Company from a limited liability company into a corporation; (viii) Units issued or issuable pursuant to the Series B Purchase Agreement, the A&R Series B Purchase Agreement or the common warrants issued thereunder (or upon conversion or exercise of any such Units or such common warrants) or up to 23,529,412 Units issued or issuable pursuant to the Series B-1 Purchase Agreements; and (ix) New Securities designated by the Company, with the Required Preferred Consent, as being Exempted New Securities.

Preemptive Rights. (a) If the Company proposes to issue or otherwise Transfer any Securities to any Person, then the Company shall make the offer to sell and otherwise comply with the requirements Except as set forth in this Section 3subsection (b) below, the Company will not issue, sell or otherwise transfer for consideration to the Xxxx Stockholders, the Bear Xxxxxxx Stockholders or the First Boston Stockholder (an "Issuance") at -------- any time prior to a Public Offering, any Stockholder Shares or debt securities (or securities convertible into or exercisable or exchangeable for Stockholder Shares or debt securities) unless, at least 15 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 terms thereof) and grants to each other holder of Stockholder Shares, the right (the "Right") to ----- subscribe for and purchase a portion of such additional shares or other securities so issued at the same price and on the same terms as issued in the Issuance equal to the quotient determined by dividing (1) the number of fully diluted shares of Common Stock held by such holder by (2) the total number of shares of Common Stock outstanding on a fully diluted basis. Notwithstanding the foregoing, if all Persons entitled to purchase or receive such stock or securities are required to also purchase other 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 (Aon the same terms and conditions) that such other Persons are required to purchase. The Right may be exercised by such holder at any time by written notice to the Company may Transfer Securitiesreceived by the Company within 10 days after receipt by such holder of the notice from the Company referred to above. The closing of the purchase and sale pursuant to the exercise of 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. (b) Notwithstanding the foregoing, and any right, title or interest therein, without making the offer Right shall not apply to sell set forth in this Section 3 in connection with (i) an Initial Public Offeringissuances of Stockholder Shares or debt securities (or securities convertible into or exchangeable for, or options to purchase, Stockholder Shares or debt securities), pro rata to all holders of any class of Stockholder Shares, as a dividend on, subdivision of or other distribution in respect of, such class of Stockholder Shares, (ii) the issuance conversions or exchanges of up one form or class of Stockholder Shares to 200,000 shares another form or class of Common Stock to management and employees of the Company pursuant to the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides for the issuance of Securities exclusively to directors, officers or employees of the CompanyStockholder Shares, (iii) issuances of Stockholder Shares upon exercise of any debt security issued by the issuance of shares of Common Stock pursuant to the Employment Agreement and the Warrants Company, or (iv) an the issuance of Securities Stockholder Shares (or securities convertible into or exchangeable for, or options to purchase, Stockholder Shares) on customary, arm's length terms in consideration for and upon consummation of (x) a merger connection with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority of the issued and outstanding shares of Voting Stock of the surviving entity or (y) an acquisition of assets or stock provision by the Xxxx Stockholders, the Bear Xxxxxxx Stockholders, the First Boston Stockholder or Affiliates thereof of debt financing to the Company so long as, in either the case of or its Subsidiaries. (xc) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations pursuant to this Section 3 shall terminate upon an Initial Public Offering. For purposes The provisions of this Section 3, "Voting Stock" shall mean stock 2 will terminate upon the consummation of the Company of any class a Public Offering or series entitled to vote generally in the election of directors of the Companyupon a Xxxx Exit.

Preemptive Rights. (a) If the Company proposes to issue or otherwise Transfer any Securities to any Person, then the Company shall make the offer to sell and otherwise comply with the requirements set forth in this Section 3. Notwithstanding the foregoing, (A) the Company may Transfer Securities, and any right, title or interest therein, without making the offer to sell set forth in this Section 3 in connection with (i) an Initial Public Offering, (ii) the issuance of up to 200,000 shares of Common Stock to management and employees of the Company pursuant to the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides Except for the issuance of Excluded Securities, BHR will provide the Stockholders with written notice of any sale by it for cash of any Securities exclusively in which the gross proceeds of such sale to directorsBHR and its Subsidiaries equals or exceeds $10 million (such offering, officers or employees a "Qualified Offering") no later than the closing date of the CompanyQualified Offering (such notice, the "Qualified Offering Notice"). The Qualified Offering Notice will specify the Securities that were issued, the purchase price (iiiwhich, in the case of a public offering, will be the purchase price to the public and, in all other cases will be the purchase price to the purchasers (without regard to underwriting discounts or commissions) of the issued securities), the issuance date and all other material terms of shares such issuance. No later than five calendar days after receipt of Common Stock the Qualified Offering Notice, each Stockholder must deliver to BHR a written notice stating whether such Stockholder desires to acquire the same type of securities that were issued and the number of Securities it intends to purchase (the "Election Notice"). The Election Notice will constitute a binding contract by the Stockholder to acquire, on the terms offered by the Company to purchasers of the Securities issued, up to that number of the Securities such that, after giving effect to the consummation of the Qualified Offering and the issuance to the Stockholder pursuant to this Section 4.1, the Employment Agreement and the Warrants or (iv) an issuance Stockholder would hold that Ownership Percentage of Securities in consideration for and upon consummation of (x) a merger with respect BHR equal to which the holders of Voting Stock such Stockholder's Ownership Percentage immediately prior to such merger beneficially own not less than Qualified Offering; provided, however, in no event may a majority Stockholder acquire any Securities under this Section 4.1 if it would be deemed to own, by virtue of the issued attribution provisions of Section 544 of the Code (as modified by Section 856(h)(i)(B) of the Code) (assuming that BHR is a REIT for such purposes) and/or Section 318 of the Code (as modified by Section 856(d)(5) of the Code) (together, the "Attribution Rules") more than 9.9% of the total number of outstanding Shares and be deemed to own, by virtue of the Attribution Rules, more than 9.9% of the total number of outstanding shares of Voting Stock common stock of FelCor Suite Hotels, Inc. The issuance will be completed five days after the surviving entity Qualified Offering or (y) an acquisition of assets or stock by the Company so long as, in either the case of (x) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right other date to nominate directors pursuant to Section 4 hereof which BHR and the approval of relevant Stockholders agree, and payment will be made in immediately available funds on such completion date. Notwithstanding anything herein to the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations pursuant to this Section 3 shall terminate upon an Initial Public Offering. For purposes of this Section 3contrary, "Voting Stock" shall mean stock of the Company of any class or series BHR will be entitled to vote generally in the election of directors of the Company.not to

Preemptive Rights. (a) If The Company will give to each Member written notice of the intention of the Company proposes to issue or otherwise Transfer sell any Shares or any Convertible Securities (the “Securities”). Such notice will set forth the terms of such proposed issuance or sale, including the price at which the Securities will be issued or sold (the “Stated Price”), and will be given at least thirty (30) days prior to the issuance or sale of such Securities. Each Member may elect to purchase up to that percentage of the Securities to any Person, then the Company shall make the offer be sold or issued equal to sell and otherwise comply with the requirements set forth in this Section 3. Notwithstanding the foregoing, (A) the Company may Transfer Securities, and any right, title or interest therein, without making the offer to sell set forth in this Section 3 in connection with (i) an Initial Public Offering, (ii) the issuance of up to 200,000 shares of Common Stock to management and employees such Member’s percentage of the Company pursuant to the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides for the issuance total number of Securities exclusively to directors, officers or employees of the Company, (iii) the issuance of shares of Common Stock pursuant to the Employment Agreement and the Warrants or (iv) an issuance of Securities in consideration for and upon consummation of (x) Shares on a merger with respect to which the holders of Voting Stock fully-diluted basis immediately prior to such merger beneficially own not less than a majority issuance or sale. A Member may exercise such election by giving written notice thereof to the Company before the end of the issued and outstanding shares of Voting Stock tenth business day after receipt by such Member of the surviving entity or (y) an acquisition notice from the Company. Such Member’s notice will state the number of assets or stock by Securities to be purchased pursuant to such election. If any Member elects not to purchase all of the Securities to which such Member is entitled hereunder, the Company so long as, in either will notify the case Members of the availability of such excess Securities (xthe “Excess Securities”) or within ten (y), such transaction has been approved by 10) days after the affirmative vote expiration of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has above election period. Each Member will have the right to nominate directors elect to purchase such Excess Securities by giving notice of its election within ten (10) days after the receipt of the notice from the Company. If the Members elect to purchase hereunder an amount of Securities in excess of the number of Excess Securities, such Excess Securities will be allocated among the electing Members on a pro rata basis based upon the proportion that the number of Shares owned by each electing Member bears to the number of Shares owned collectively by all the electing Members. (b) If a Member exercises its right of election pursuant to clause (a) above, the closing of such purchase and sale will take place within ten (10) days after the last Member gives notice of its election. At the closing, the Company will deliver to any electing Member or an Affiliate thereof (provided such Affiliate has complied with the provisions of Section 4 hereof and 6.4), if applicable, the approval certificate or certificates representing the number of Securities set forth in such Member’s notice of election against payment by the Member or an Affiliate thereof, if applicable, by cash or certified or bank cashier’s check or by wire or interbank transfer of funds of the transaction by such director is required Stated Price. (c) If the Members do not elect pursuant to Section 5 hereof clause (a) above to subscribe for all the Securities proposed to be issued or sold by the Company, the Company will have the right to issue and sell any such Excess Securities, provided that any purchaser thereof becomes a "Qualifying Acquisition") and (B) any rights or obligations pursuant party to this Section 3 shall terminate upon an Initial Public Offering. For purposes of this Section 3, "Voting Stock" shall mean stock of the Company of any class or series entitled to vote generally in the election of directors of the CompanyAgreement.

Preemptive Rights. (a) If Except as regards the Company proposes shares to issue be issued to the ASE Group and/or ASE Representative pursuant to Section 2.08(c), above or otherwise Transfer any Securities to any Personemployees pursuant to Section 2.08(d), then the Company shall make the offer to sell and otherwise comply with the requirements set forth in this Section 3. Notwithstanding the foregoingabove, (A) the Company may Transfer Securities, and any right, title or interest therein, without making the offer to sell set forth in this Section 3 in connection with (i) an Initial Public Offering, (ii) the issuance of up to 200,000 shares of Common Stock to management and employees each of the Company pursuant to the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides for the issuance of Securities exclusively to directorsparties hereto, officers or employees so long as it remains a shareholder of the Company, (iii) shall, to the issuance of greatest extent permitted by applicable Cayman Islands laws, have a preemptive right to subscribe for additional shares of Common Stock pursuant the Company which may, from time to time, be issued in a cash injection capital increase or, to the Employment Agreement extent such issuance is, or may become, permitted by applicable law, any other equity, debt convertible to equity or other quasi-equity securities of the Company, in proportion to such party’s then shareholding in the Company. Each of the parties hereto shall, within ten (10) business days of the receipt of a notice from the Company stating the general terms of the new issue, the number of new shares (or other securities) proposed to be issued and the Warrants proposed issue price deliver a written response to the Company stating the number of the new shares (or (ivother securities) an issuance of Securities in consideration for and upon consummation of (x) a merger to which such party wishes to subscribe. Any party failing to respond within such period shall be deemed to have waived its preemptive rights with respect to which the holders of Voting Stock immediately prior relevant issue; provided, that, if any ASE Entity or PSC Entity, as applicable, shall elect or be deemed to such merger beneficially own have elected, not less than a majority to subscribe for new shares (or other securities), the Company shall so notify the ASE Representative or the PSC Representative, as applicable (the “Follow Up Notice”), and the relevant representative may by notice to the Company given within ten (10) days after receipt of the issued and outstanding shares of Voting Stock of the surviving entity or (y) an acquisition of assets or stock by the Company so long as, in either the case of (xFollow Up Notice designate another ASE Entity(ies) or PSC Entity(ies) or any affiliates of ASE Representative or PSC Representative, as applicable (y“Designated Take Up Party”), to take up the relevant shares (or other securities); provided, further, that, if the Designated Take Up Party is not an original subscriber to the Company’s shares under Section 2.08(b), above, the selection of such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right Designated Take Up Party shall be subject to nominate directors pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant other representative. Any newly offered shares (or securities) not subscribed to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations pursuant to this Section 3 shall terminate upon an Initial Public Offering. For purposes may be issued to such investors as the Board of this Section 3, "Voting Stock" shall mean stock Directors of the Company of any class or series entitled to vote generally in the election of directors of the Companyshall decide.

Preemptive Rights. (a) Subject to applicable securities laws and regulations, if the Subscribers are then holding an aggregate number of shares of Common Stock equal to at least fifty percent (50%) of the aggregate number of Subject Shares purchased by the Subscribers on the date hereof in the Common Offering and either (x) the Company proposes to issue any Equity Securities (as defined below) in a transaction pursuant to which the per share value of the Common Stock has an effective price (taking into account any options, warrants, convertible securities, or other rights or consideration, including but not limited to fees, issued or paid in connection with the issuance of Equity Securities, and the exercise, conversion or other purchase price for Equity Securities set forth therein, including any adjustments thereto) of $16.00 or less (as adjusted for any stock split or stock dividend by the Company) or (y) the Company proposes to issue at any time prior to the two (2) year anniversary of the Closing Date Equity Securities in a transaction pursuant to which the per share value of the Common Stock has an effective price (taking into account any options, warrants, convertible securities, or other rights or consideration, including but not limited to fees, issued or paid in connection with the issuance of Equity Securities, and the exercise, conversion or other purchase price for Equity Securities set forth therein, including any adjustments thereto) of greater than $16.00 (as adjusted for any stock split or stock dividend LEGAL_US_E # 159762890.9 by the Company), then the Subscribers shall have a joint (and not several) preemptive right to purchase up to their aggregate Pro Rata Share (as defined below) of all Equity Securities issued in connection with such transaction, other than the following: (i) any Equity Securities issued pursuant to options, warrants or other rights issued or to be issued after the date hereof to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Board of Directors of the Company; (ii) any Equity Securities issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as of the Closing Date; (iii) any Equity Securities issued in connection with any stock split or stock dividend by the Company; and (iv) any Equity Securities issued in connection with acquisitions, joint ventures, partnerships or strategic transactions to the applicable selling persons or counterparties with whom the Company or its subsidiary is consummating such joint venture, partnership or strategic transaction, provided that any such issuance shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities (which for the avoidance of doubt shall not include transactions involving portfolio companies or other affiliated operating businesses of such entities). (b) If the Company proposes to issue or otherwise Transfer any Equity Securities, it shall give each Subscriber written notice of its intention, describing the Equity Securities, the price and the terms and conditions upon which the Company proposes to issue the same. The Subscribers shall have five (5) Business Days (as defined below) from the giving of such notice to agree to purchase up to their aggregate Pro Rata Share of the Equity Securities for the price and upon the terms and conditions specified in the notice by giving written notice to the Company and stating therein the quantity of Equity Securities to any Person, then the be purchased. The Company shall make have the offer right, in its sole discretion, to sell and otherwise comply determine whether to proceed with the requirements set forth such issuance after providing such notice. (c) As used in this Section 3. Notwithstanding the foregoing, Agreement: (i) “Equity Securities” shall mean (A) the Company may Transfer Securitiesany Common Stock, and any rightpreferred stock, title warrant or interest therein, without making the offer to sell set forth in this Section 3 in connection with (i) an Initial Public Offering, (ii) the issuance of up to 200,000 shares of Common Stock to management and employees of the Company pursuant to the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides for the issuance of Securities exclusively to directors, officers or employees security of the Company, (iiiB) any security convertible into or exercisable or exchangeable for, with or without consideration, any Common Stock, preferred stock or other security (including any option to purchase such a convertible security), (C) any security carrying any warrant or right to subscribe to or purchase any Common Stock, preferred stock or other security, or (D) any such warrant or right; (ii) “Pro Rata Share” shall mean, with respect to the Subscribers, the ratio of (x) the issuance number of shares of the Company’s Common Stock (including all shares of Common Stock pursuant to issuable or issued upon conversion of shares of preferred stock or convertible debt, upon the Employment Agreement and the Warrants exercise of outstanding warrants or (iv) an issuance of Securities in consideration for options and upon consummation the exchange of (xsecurities exchangeable for Common Stock) a merger with respect to of which the holders of Voting Stock Subscribers are deemed to be the beneficial owner immediately prior to the issuance of such merger beneficially own not less than a majority Equity Securities to (y) the total number of shares of the issued and Company’s outstanding Common Stock (including all shares of Voting Common Stock issuable or issued upon conversion of shares of preferred stock or convertible debt, upon the exercise of outstanding warrants or options and upon the exchange of securities exchangeable for Common Stock of the surviving entity or (yCompany) an acquisition of assets or stock by immediately prior to the Company so long as, in either the case of (x) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and the approval issuance of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") Equity Securities; and (Biii) any rights or obligations pursuant to this Section 3 shall terminate upon an Initial Public Offering. For purposes of this Section 3, "Voting Stock" “Business Day” shall mean stock of the Company of any class or series entitled to vote generally day except any Saturday, any Sunday, any day which is a federal legal holiday in the election United States or any day on which banking institutions in the State of directors of the Company.New York are authorized or required by law or other governmental action to close. LEGAL_US_E # 159762890.9

Preemptive Rights. (a) If Each time the Company proposes to issue or otherwise Transfer sell, or enter into any Securities agreement to issue or sell, to any Person, then other than Preferred Members, Members or Economic Interest Holders, any Percentage Interest (for cash or otherwise), other than Interests being issued as an employee benefit or employee compensation or after, or in connection with, an initial public offering, or pursuant to an effective registration statement under the Securities Act, the Company shall also make the offer an offering of such Interests to sell its Preferred Members and otherwise comply Members in accordance with the requirements set forth following provisions: 7.14.1 The Company shall deliver a notice to each Preferred Member or Member stating the number and type of Interest to be issued or sold to such Person and the price and the terms on which it proposes to offer or sell such Interests; 7.14.2 Within thirty (30) days after delivery of the notice to the Preferred Member or Member, each Preferred Member or Member may contractually commit to purchase, at the price (or the per share cash equivalent of such price of the consideration is not cash) and on the terms specified in this Section 3. Notwithstanding the foregoingnotice, up to its pro rata (Atreating the Preferred Interests on an as converted basis) portion of such Interests by delivering an irrevocable subscription agreement to the Company within such period of thirty (30) days. It shall be a condition to the consummation of such purchase by each Preferred Member or Member (it being understood that such condition may Transfer Securitiesbe waived) that all Preferred Members and Members shall simultaneously purchase their pro rata portion of such Interests, the Preferred Member or Member who have purchased their full pro rata portion may purchase their pro rata portion of such unpurchased Interests. The Company shall conduct the second round of offer and any rightsale in the same manner as the first; and 7.14.3 Any Percentage Interest referred to in the notice to the Preferred Member or Member that are not elected to be purchased as provided in Section 7.14.2 above may, title or interest thereinduring the 180-day period thereafter, without making the offer to sell set forth in this Section 3 in connection with (i) an Initial Public Offering, (ii) the issuance of up to 200,000 shares of Common Stock to management be offered and employees of sold by the Company pursuant to the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides for the issuance of Securities exclusively to directors, officers or employees of the Company, (iii) the issuance of shares of Common Stock pursuant to the Employment Agreement and the Warrants or (iv) an issuance of Securities in consideration for and upon consummation of (x) Person at a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own price not less than a majority of the issued that specified in such notice, and outstanding shares of Voting Stock of the surviving entity or (y) an acquisition of assets or stock by the Company so long as, in either the case of (x) or (y), on terms no more favorable to such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations pursuant to this Section 3 shall terminate upon an Initial Public OfferingPerson than those specified therein. For purposes of this Section 37.14, "Voting Stock" shall mean stock in the event that any of the Company consideration to be paid in respect of any class offer or series entitled sale of Interests by the Company consists of property other than cash or marketable securities, the value of such property for purposes of computing the purchase price for such Interests shall be determined, by the Company’s expense, as of a date not more than thirty (30) days prior to vote generally in the election of directors date of the Companynotice required pursuant to Section 7.14.1 above and shall be set forth in a written certificate which shall be delivered to the Preferred Members and Members simultaneously with the delivery of such notice.

Preemptive Rights. (a) If In the event the Company proposes to issue Membership Interests (or otherwise Transfer rights or options to acquire Membership Interests), or accept any Securities additional Capital Contributions by the Members, or engage in any other equity financing to any Person, then the Company shall make the offer to sell and otherwise comply with the requirements set forth in this Section 3. Notwithstanding the foregoing, (A) which the Company may Transfer Securitiesbe a party (a “New Equity Issuance”), such New Equity Issuance shall be upon such terms and any rightconditions (including valuation and pricing) as may be determined by the Board of Managers, title or interest therein, without making subject to the offer to sell set forth in remaining provisions of this Section 3 in connection with 13.1. In the event the Company proposes a New Equity Issuance, the Company will give written notice (each, an “Equity Sale Notice”) to each Class A Member at least twenty (20) days prior to the closing of such transaction, describing the transaction to be entered into by the Company, including (i) an Initial Public Offeringthe percentage and class (and the rights, powers and preferences, if different from the then outstanding Membership Interests) of the New Equity Issuance that the Company proposes to issue (the “Proposed Equity”), (ii) the price and terms upon which the Company proposes to issue the Proposed Equity, and (iii) the amount of Proposed Equity that such Member is entitled to purchase, and the aggregate purchase price therefore. Each Class A Member shall have the right, but not the obligation, to purchase Proposed Equity, at the price and on the other terms set forth in the Equity Sale Notice, in an amount not to exceed such Class A Member’s pro rata share of such Proposed Equity. Each Class A Member will have ten (10) days after the date of receipt of any Equity Sale Notice to (i) agree to purchase all or any portion of such Proposed Equity pursuant to its preemptive rights, for the price and upon the terms specified in the Equity Sale Notice by giving written notice to the Company and stating therein its decision and the quantity of Proposed Equity to be purchased; or (ii) decline to exercise its preemptive rights with respect to such issuance of Proposed Equity. If a Class A Member does not exercise its preemptive rights within such ten (10) day period, then such Class A Member shall be deemed to have waived its preemptive rights with respect to such New Equity Issuance. If a Class A Member exercises its preemptive rights, it shall promptly take all steps described in the Sale Notice to effectuate its purchase of the Proposed Equity covered thereby. Any remaining Proposed Equity not elected to be purchased by the end of such ten (10) day period shall be reoffered for a ten (10) day period to the Class A Members who have elected to purchase the Proposed Equity. Such electing Class A Members shall have the right to purchase such additional portion of the remaining Proposed Equity in an amount up to 200,000 shares such electing Class A Member’s pro rata share (based on the Class A Percentage Interests of Common Stock such electing Class A Members) of the remaining Proposed Equity. (b) The Company will have sixty (60) days following expiration of the periods provided in subsection (a) above to management sell the Proposed Equity as to which the Class A Members’ preemptive rights were not exercised, at a price and employees upon such other terms as are specified in the Equity Sale Notice. In the event the Company has not sold such Proposed Equity within said 60-day period or desires to sell such Proposed Equity on terms that materially differ from those described in the Equity Sale Notice, the Company will not thereafter issue or sell the Proposed Equity without again complying with this Section 13.1. (c) The foregoing preemptive rights shall not apply to: (i) Membership Interests offered in connection with a public offering; (ii) Membership Interests issued to the seller or its equity holders in connection with any acquisition, merger, joint venture, or similar transaction, the terms of which are approved by the Board of Managers; (iii) Membership Interests (or rights or options to acquire Membership Interests) issued to financial institutions or similar Persons in connection with credit arrangements, debt financings or similar debt transactions, the terms of which are approved by the Board of Managers; or (iv) Class B Membership Interests issued to certain employees, directors, managers, officers or agents of the Company pursuant or its Affiliates, as determined by the Board of Managers from time to time, in an amount not to exceed ten percent (10%) of the Company's 1997 Equity and Performance Incentive Plan aggregate Class B Percentage Interests. (d) For clarification purposes, (i) the preemptive rights will not apply to debt securities issued by the Company in any loan transaction or any other incentive plan which provides for the issuance of Securities exclusively to directors, officers or employees debt financing of the Company, and (iiiii) the issuance of shares of Common Stock pursuant to the Employment Agreement and the Warrants or (iv) an issuance of Securities Class B Members shall not have any preemptive rights in consideration for and upon consummation of (x) a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority of the issued and outstanding shares of Voting Stock of the surviving entity or (y) an acquisition of assets or stock by the Company so long as, in either the case of (x) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations pursuant to this Section 3 shall terminate upon an Initial Public Offering. For purposes of this Section 3, "Voting Stock" shall mean stock of the Company of any class or series entitled to vote generally in the election of directors of the Companytheir capacities as Class B Members.

Preemptive Rights. (a) If Prior to an IPO, if the Company proposes to issue additional equity securities (including securities exercisable for or otherwise Transfer convertible into equity securities) of the Company or any Securities subsidiary of the Company proposes to any Personissue additional equity securities, then the Company shall make deliver to each Member (each, a “Participating Member”, or, collectively, the offer “Participating Members”) a written notice of such proposed issuance at least thirty (30) days prior to sell and otherwise comply with the requirements set forth in this date of the proposed issuance (the period from the effectiveness pursuant to Section 315.1(c) of such notice until the date of such proposed issuance, the “Subscription Period”). Notwithstanding the foregoing, (A) the Company may Transfer Securities, and any right, title or interest therein, without making the offer to sell set forth in this Section 3 in connection with Such notice shall include (i) an Initial Public Offeringthe amount, kind and terms of the equity securities to be included in the issuance, (ii) the issuance of up to 200,000 shares of Common Stock to management maximum and employees minimum price per unit of the Company pursuant equity securities to be included in the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides for the issuance of Securities exclusively to directors, officers or employees of the Companyissuance, (iii) the name and address of the proposed purchaser and (iv) the proposed issuance date, if known. (b) Each Participating Member shall have the option, exercisable at any time during the first twenty (20) days of the Subscription Period by delivering written notice to the Company and on the same terms as those of the proposed issuance of such additional equity securities (including securities exercisable for or convertible into equity securities), to irrevocably subscribe for not more than its Sharing Percentage (in the case of an issuance by a subsidiary, adjusted to take account of the ownership interests of stockholders of such subsidiary, including those who may also have preemptive rights) of any such additional equity securities (including securities exercisable for or convertible into equity securities) on the same terms and conditions as are to be issued to the proposed purchaser in the issuance in question. Each Participating Member who does not exercise such option in accordance with the above requirements shall be deemed to have waived all of such Participating Member’s rights with respect to such issuance. In the event that any Participating Member does not elect to purchase its aggregate Sharing Percentage of the additional equity securities (including securities exercisable for or convertible into equity securities), the Company shall deliver to each Participating Member (other than declining Participating Members) a written notice thereof not later than the twenty-fifth day of the Subscription Period, including the number of equity securities which were subject to the purchase right of such declining Participating Member(s), and each other Participating Member may subscribe for not more than its Sharing Percentage (calculated using a denominator equal to the number of Units owned by the non-declining Members and adjusted for other equity holders with similar pre-emptive rights) of such declined equity securities before the expiration of the Subscription Period. (c) In the case of issuances of equity securities by HCA, a Participating Member may elect to subscribe for such securities by making a payment to the Company which the Company shall apply to the purchase of, and hold (but not in the Capital Account of such Member and not as an asset of the Company), such securities on behalf of such Member. (d) If, prior to consummation, the terms of the proposed issuance shall change with the result that the price shall be less than the minimum price set forth in the notice contemplated by clause (a) above or the other principal terms shall be substantially more favorable to the prospective buyer than those set forth in such notice, it shall be necessary for a separate notice to be furnished, and the terms and provisions of this Section 9.8 separately complied with. (e) If at the end of the 90th day after the date of the effectiveness of the notice contemplated by clause (a) above as such period may be extended to obtain any required regulatory approvals, the Company or its subsidiary, as applicable, has not completed the issuance, each Participating Member shall be released from such Participating 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 9.8 separately complied with, in order to consummate such issuance; (f) In the event that the participation in the issuance by a Participation 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 participant in the issuance of any specified information regarding the Company or any of its subsidiaries or the securities to be issued that is not otherwise required to be provided for the issuance, such Participation Member shall not have the right to participate in the issuance. (g) Each Participating Buyer 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 9.8. (h) Notwithstanding the requirements of this Section 9.8, the Company or its subsidiary, as applicable, may proceed with any issuance prior to having complied with the provisions of this Section 9.8 so long as such entity has used reasonable best efforts to give the Members the opportunity to invest in the issuance; provided that the Company or its subsidiary, as applicable, shall: (i) provide to each Member in connection with such issuance (A) with prompt notice of such issuance and (B) the notice described in clause (a) above in which the actual price per unit of the equity securities shall be set forth; (ii) offer to issue to such holder of Units such number of securities of the type issued in the issuance as may be requested by such holder of Units (not to exceed the Sharing Percentage that such holder of Units would have been entitled to pursuant to Section 9.8 multiplied by the sum of (a) the number of equity securities included in the issuance and (b) the maximum aggregate number of shares issuable pursuant to this clause (g) with respect to such issuance) 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 thirty business days, during which period, each such holder may accept such offer by sending a written acceptance to the Company or its subsidiary, as applicable, committing to purchase an amount of such securities (not in any event to exceed the Sharing Percentage that such holder would have been entitled to pursuant to this Section 9.8 otherwise, multiplied by the sum of (a) the number of equity securities included in such issuance and (b) the aggregate number of shares issued pursuant to this clause (h) with respect to such issuance). (i) The provisions of this Section 9.8 shall not apply to issuances by the Company or any subsidiary of the Company as follows: (i) any issuance to the Company or any wholly owned subsidiary of the Company; (ii) any issuance of securities upon the exercise or conversion of any stock, options, warrants or convertible securities outstanding on the date hereof or issued after the date hereof in a transaction that complied with the provisions of this Section 9.8; (iii) any issuance of shares of Common Stock equity securities, options, warrants or convertible 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 extent approved by the Board or pursuant to an employment benefit plan or arrangement approved by the Employment Agreement and the Warrants or Board; (iv) an any issuance of Securities equity securities, options, warrants or convertible securities, in consideration each case to the extent approved by the Board, (A) in any business combination or acquisition transaction involving the Company or any of its subsidiaries, including a Change of Control, (B) in connection with any joint venture or strategic partnership entered into primarily for and upon consummation of purposes other than raising capital (xas determined by the Board in its sole discretion) a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority of the issued and outstanding shares of Voting Stock of the surviving entity or (yC) an acquisition to financial institutions, commercial lenders, broker/finders or any similar party, or their respective designees, in connection with the incurrence or guarantee of assets or stock indebtedness by the Company so long asor any of its subsidiaries; (v) any issuance of equity securities pursuant to a public offering; (vi) any issuance of Units in connection with a Delayed Equity Amount Shortfall; (vii) the issuance of Units to the Members and shares of HCA stock to its various stockholders in connection with the closing of the Company’s acquisition of HCA; or (viii) any issuance of securities in connection with any stock split, in either stock dividend paid on a proportionate basis to all holders of the case affected class of (x) equity interest or (y), such transaction has been recapitalization approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations pursuant to this Section 3 shall terminate upon an Initial Public Offering. For purposes of this Section 3, "Voting Stock" shall mean stock of the Company of any class or series entitled to vote generally in the election of directors of the CompanyBoard.

Preemptive Rights. (a) If After the Final Closing Date, the Company will not issue, sell or exchange, agree to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, any additional Units, unless, in each case, the Manager has approved such transaction and the Company has first complied with this Section 4.4. Each time the Company proposes to issue or otherwise Transfer any Securities engage in a transaction falling within the scope of the preceding sentence, the Company, subject to any Personsubparagraph (f) below, then the Company shall must first make the offer an offering of such additional Units to sell and otherwise comply each then-existing Unitholder in accordance with the requirements set forth in this following provisions: (a) The Company will deliver a notice by certified mail or email, pursuant to Section 3. Notwithstanding the foregoing14.1 (a “Rights Notice”), (A) the Company may Transfer Securities, and any right, title or interest therein, without making the offer to sell set forth in this Section 3 in connection with Unitholders stating (i) an Initial Public Offeringthe Company’s bona fide intention to issue additional Units, (ii) the nature of the Units to be issued, including the class of the Units to be offered, (iii) the price and terms, if any, upon which it proposes to issue such additional Units, and (iv) the procedures to be followed by a Unitholder to exercise its rights under this Section 4.4. (b) Within 20 calendar days after delivery of the Rights Notice, a Unitholder may elect to subscribe for, at the price and on the terms specified in the Rights Notice, up to that portion of the additional Units that equals the ratio of the number of Units held by such Unitholder prior to the issuance to the total number of Units then issued and outstanding to all Unitholders. Any Unitholder who elects to subscribe to purchase the maximum number of additional Units allocable to such Unitholder under the preceding sentence shall also be given the option to elect to purchase some or all of the additional Units not subscribed for by other Unitholders in the preemptive rights offering. In each case, a Unitholder’s rights under this Section 4.4 are subject to the requirement that it duly follows the Company’s reasonable instructions and procedures. (c) The Company may, during the 12-month period following the expiration of preemptive rights offering in clause (b) above, offer the remaining unsubscribed additional Units to non-Unitholders at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Rights Notice. If the unsubscribed additional Units are not issued to non-Unitholders during the 12-month period following expiration of the preemptive rights offering, the preemptive rights offering in accordance with this Section 4.4 must be repeated before additional Units are again offered to non-Unitholders. (d) Preemptive rights are not applicable to (i) the issuance of Units pursuant to the conversion or exercise of convertible or exercisable securities, (ii) the issuance of up to 200,000 shares of Common Stock to management and employees of the Company pursuant to Units in connection with a bona fide business acquisition by the Company's 1997 Equity and Performance Incentive Plan , whether by merger, consolidation, sale of assets, sale or any other incentive plan which provides for the issuance exchange of Securities exclusively to directors, officers securities or employees of the Companyotherwise, (iii) the issuance of shares of Common Stock pursuant Units to the Employment Agreement and the Warrants financial institutions or institutional investors in connection with commercial credit arrangements, equipment financing or similar transactions, which issuances are primarily for other than equity financing purposes, (iv) an the issuance of Securities in consideration for and upon consummation Units pursuant to a Unit split or dividend, Company recapitalization or other combination, (v) the conversion or exchange of any Units into other Units, or the exercise of any warrants or other rights to acquire Units, (xvi) a merger joint venture, strategic alliance or other commercial relationship with respect any Person relating to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority operation of the issued Company and outstanding shares not for the primary purpose of Voting Stock raising equity capital, (vii) the issuance of Units as compensation and (viii) the issuance of Units to vendors, customers, consultants, landlords or strategic partners or to other Persons in similar commercial situations or to a lender or lessor in connection with obtaining lease financing. (e) A Unitholder’s preemptive rights may not be assigned or transferred without the written consent of the surviving entity or Manager. (yf) an acquisition of assets or stock Unless otherwise determined by the Company so long asManager, preemptive rights are applicable only to Unitholders who are “accredited investors” as defined in either Rule 501 promulgated under the case Securities Act. (g) Any assignee of (x) or (y), such transaction a Unitholder who has not been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors admitted as a Substituted Member pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations 8.1 shall have no preemptive rights, whether pursuant to this Section 3 shall terminate upon an Initial Public Offering. For purposes of this Section 34.4 or otherwise, "Voting Stock" shall mean stock with respect to their ownership of the Company of any class or series entitled to vote generally in the election of directors of the CompanyUnits.

Preemptive Rights. (a) If From and after the Company proposes to issue or otherwise Transfer any Securities to any Person, then date hereof until the Company shall make the offer to sell and otherwise comply with the requirements set forth in this Section 3. Notwithstanding the foregoing, (A) the Company may Transfer Securities, and any right, title or interest therein, without making the offer to sell set forth in this Section 3 in connection with earlier of (i) an the thirty (30) month anniversary of the Initial Public Offering, Closing Date or (ii) the issuance until such that that BVF retains beneficial ownership of up to 200,000 shares of Common Stock to management and employees of the Company pursuant to the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides for the issuance of Securities exclusively to directors, officers or employees of the Company, (iii) the issuance of shares of Common Stock pursuant to the Employment Agreement and the Warrants or (iv) an issuance of Securities in consideration for and upon consummation of (x) a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority 9.9% of the issued and outstanding shares of Voting Stock of the surviving entity or (y) an acquisition of assets or stock Common Shares, upon any proposed issuance by the Company so long or any of its Subsidiaries of Common Shares, or Common Share Equivalents for cash consideration, Indebtedness or a combination thereof, other than an Exempt Issuance (a “Subsequent Financing”), the Purchasers shall have the right to participate in such Subsequent Financing up to its pro rata amount, calculated as its percentage equity ownership of the Company’s outstanding equity (determined on an as-converted and fully-diluted basis without regard to any Beneficial Ownership Limitation) on the same terms, conditions and price provided for in the Subsequent Financing or the right to purchase a comparable security with a Beneficial Ownership Limitation and otherwise substantially similar economic rights and interests. Notwithstanding anything in this Section ‎4.17, in the event a Subsequent Financing is an offering registered under the Securities Act, the Company shall offer the Purchasers the same right to participate in such registered offering (up to its pro rata amount) only when it is lawful for the Company to do so. (b) Subject to compliance with any applicable laws, at least two (2) Trading Days prior to the closing of the Subsequent Financing, the Company shall deliver to BVF a written notice of its intention to effect a Subsequent Financing (“Pre-Notice”), which Pre-Notice shall inquire with BVF whether it wishes to review the details of such proposed financing (such additional notice, a “Subsequent Financing Notice”). Upon the request of BVF, and only upon a request by BVF, for a Subsequent Financing Notice, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver a Subsequent Financing Notice to BVF. BVF shall be deemed to have acknowledged that the Subsequent Financing Notice may contain material non-public information. Subject to compliance with any applicable laws, the Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder and the Person or Persons through or with whom such Subsequent Financing is proposed to be effected and shall include a term sheet or similar document relating thereto as an attachment. (c) If BVF and any of the Purchasers wish to participate in such Subsequent Financing, BVF must provide written notice to the Company by not later than 5:30 p.m. (New York City Time) on the Trading Day after BVF has received the Subsequent Financing Notice, that BVF and the applicable Purchasers are willing to participate in the Subsequent Financing and the amount of each Purchaser’s participation. If the Company receives no such notice from BVF as of such Trading Day, BVF shall be deemed to have notified the Company that it does not elect to participate and the Company may effect the Subsequent Financing on the terms and with the Persons set forth in the Subsequent Financing Notice. (d) The Company must provide BVF with a second Subsequent Financing Notice, and BVF and the Purchasers will again have the right of participation set forth above in this Section ‎4.17, if the Subsequent Financing subject to the initial Subsequent Financing Notice is amended in any material respect or is not consummated for any reason on the terms set forth in such Subsequent Financing Notice within thirty (30) days after the date of the initial Subsequent Financing Notice. (e) Notwithstanding anything to the contrary in this Section ‎4.17 and unless otherwise agreed to by BVF, the Company shall either confirm in writing to BVF that the transaction with respect to the Subsequent Financing has been abandoned or shall publicly disclose its intention to issue the securities in the Subsequent Financing, in either case in such a manner such that neither BVF nor any of the case Purchasers will be in possession of any material, nonpublic information, by one (x1) or Business Day following delivery of the Subsequent Financing Notice. If by such one (y)1) Business Day, no public disclosure regarding a transaction with respect to the Subsequent Financing has been made, and no notice regarding the abandonment of such transaction has been approved received by the affirmative vote of at least one director appointed by Nu-Tech ifBVF, at the time such merger is consummated, Nu-Tech has the right transaction shall be deemed to nominate directors pursuant to Section 4 hereof have been abandoned and the approval neither BVF nor any of the transaction by such director is required pursuant Purchasers shall be deemed to Section 5 hereof (a "Qualifying Acquisition") and (B) be in possession of any rights or obligations pursuant material, non-public information with respect to this Section 3 shall terminate upon an Initial Public Offering. For purposes of this Section 3, "Voting Stock" shall mean stock of the Company or any of any class or series entitled to vote generally in the election of directors of the Companyits Subsidiaries.

Preemptive Rights. (a) If Subject to the provisions of this Section 9, in the event that any Kirtland Entity or any Affiliate of any Kirtland Entity purchases Shares from the Company subsequent to the date of this Agreement, each Management Stockholder (other than a Management Employee who ceases to be an employee of the Company or any Subsidiary of the Company for any reason and his or her respective Management Transferees) and each Other Stockholder will have the right to purchase from the Company, during a reasonable time to be fixed by the Board of Directors (which will not be less than ten (10) days), such number of Shares equal to (i) that number of such Shares proposed to be issued by the Company multiplied by (ii) a fraction, the numerator of which equals the aggregate number of Shares (other than Restricted Shares, as applicable) owned by such Stockholder and the denominator of which equals the aggregate number of Shares (other than Restricted Shares) issued and outstanding at such time, at a price or prices and on other terms not less favorable to such Stockholder than the price or prices and other terms at which such Shares are proposed to be offered for sale to any Kirtland Entity or any Affiliate of any Kirtland Entity. (b) The Company will provide written notice to each Stockholder entitled to purchase Shares in accordance with this Section 9 setting forth the time within, and the price and other terms and conditions upon which, such Stockholder may purchase such Shares. Any Shares which the Company proposes to issue or otherwise Transfer any Securities to any Person, then the Company shall make the offer to sell and otherwise comply with the requirements set forth in this Section 3. Notwithstanding the foregoing, (A) the Company may Transfer Securities, and any right, title or interest therein, without making the offer to sell set forth in this Section 3 in connection with (i) an Initial Public Offering, (ii) the issuance of up to 200,000 shares of Common Stock to management and employees of the Company pursuant to the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides for the issuance of Securities exclusively to directors, officers or employees of the Company, (iii) the issuance of shares of Common Stock pursuant to the Employment Agreement and the Warrants or (iv) an issuance of Securities in consideration for and upon consummation of (x) a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own are not less than a majority of the issued and outstanding shares of Voting Stock of the surviving entity or (y) an acquisition of assets or stock purchased by the Company so long as, in either the case of (x) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations Stockholders pursuant to this Section 3 9 may be issued or sold by the Company to any Kirtland Entity or any Affiliate of any Kirtland Entity within ninety (90) days after the expiration of the period during which such Stockholders shall terminate upon an Initial Public Offering. For purposes of have the preemptive right to purchase, but the Company shall not sell or issue any such Shares after such ninety day (90-day) period without renewed compliance with this Section 3, "Voting Stock" shall mean stock of the Company of any class or series entitled to vote generally in the election of directors of the Company9.

Preemptive Rights. (a) If the Company proposes to issue or otherwise Transfer any Securities to any Person, then the The Company shall make the offer not issue, sell or exchange, or agree to issue, sell and otherwise comply with the requirements set forth in this Section 3. Notwithstanding the foregoingor exchange, (A) the Company may Transfer Securities, and any right, title or interest therein, without making the offer to sell set forth in this Section 3 in connection with (i) an Initial Public Offering, (ii) the issuance of up to 200,000 shares of Common Stock or Common Stock Equivalents (other than with respect to management Exempt Issuances) unless, in each case, the Company shall have first given written notice to the Holder (i) stating the Company’s intention to make such issuance, sale or exchange, the amount to be issued, sold or exchanged, the purchase price, and employees a summary of the Company pursuant other material terms of the proposed issuance, sale or exchange, and (ii) offering to issue to the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides for the issuance of Securities exclusively to directors, officers or employees Holder its pro rata share of the Company, (iii) Common Stock or Common Stock Equivalents being issued on the issuance of shares terms set forth in such notice. In determining the Holder’s pro rata share of Common Stock pursuant to the Employment Agreement and the Warrants or (iv) an issuance of Securities in consideration Common Stock Equivalents being issued for and upon consummation of (x) a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority of the issued and outstanding shares of Voting Stock of the surviving entity or (y) an acquisition of assets or stock by the Company so long as, in either the case of (x) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations pursuant to this Section 3 shall terminate upon an Initial Public Offering. For purposes of this Section 35.1, "Voting all Common Stock Equivalents (including without limitation all Warrants) shall be deemed to have been exercised or converted into Common Stock" . Such preemptive offer by its terms shall mean stock remain open and irrevocable for a period of at least 20 days from the date it is delivered by the Company to the Holder. Notice of the Holder’s intention to accept a preemptive offer, in whole or in part, shall be evidenced by a writing signed by the Holder and delivered to the Company prior to the end of the offer period, setting forth the amount of Common Stock or Common Stock Equivalents that the Holder elects to make subject to such warrant. In the event that the Holder does not deliver such a notice of acceptance, or elects in such notice not to accept all of its pro rata share of the Common Stock or Common Stock Equivalents subject to the preemptive offer, the Company shall have 20 Business Days following the last date on which such a notice of acceptance can be validly delivered to issue, sell or exchange all or any class part of such remaining offered Common Stock or series entitled Common Stock Equivalents not covered by the notice of acceptance to vote generally any other Person or Persons, but only upon terms and conditions in all respects that are no more favorable to such other Person or Persons, or less favorable to the Company, than those set forth in the election preemptive offer. If the Company does not consummate the issuance of directors all or part of the Companyremaining Common Stock or Common Stock Equivalents subject to the preemptive offer to such other Person or Persons within such period, the right provided hereunder shall be deemed to be revived and such Common Stock or Common Stock Equivalents shall not be offered unless first reoffered to the Holder in accordance with this Article VI. Upon the issuance, sale or exchange to or with such other Person or Persons of all or part of the remaining Common Stock or Common Stock Equivalents covered by the preemptive offer, the Company shall issue to the Holder the Common Stock or Common Stock Equivalents covered by the notice of acceptance delivered to the Company by the Holder, on the terms specified in the preemptive offer.

Preemptive Rights. (a) If Subject to Section 8.01, if the Company or AOL proposes to issue any new Equity Securities of the Company or otherwise Transfer any Securities AOL (“Proposed Issuance”) to any PersonPerson (including any Member), then the Company shall make deliver to each Member a written notice (a “Subscription Notice”) describing the offer terms of such Proposed Issuance (including a detailed description of the terms, amount and price of the Equity Securities proposed to sell be issued, and otherwise comply with other material terms, conditions and limitations of such Proposed Issuance) at least 60 calendar days prior to the requirements set forth in this Section 3closing date of such Proposed Issuance (the “Subscription Period”). Notwithstanding the foregoing, (A) the Company may Transfer Securities, and any right, title or interest therein, without making the offer no Member shall be entitled to sell set forth in exercise participation rights under this Section 3 in connection with 5.03 if the consideration for the Proposed Issuance is (i) all or substantially all of the assets of an Initial Public Offering, operating business or (ii) Equity Securities that in the issuance of up to 200,000 shares of Common Stock to management and employees of the Company pursuant to the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides for the issuance of Securities exclusively to directors, officers or employees of the Company, (iii) the issuance of shares of Common Stock pursuant to the Employment Agreement and the Warrants or (iv) an issuance of Securities in consideration for and upon consummation of (x) a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than aggregate convey a majority of the issued and outstanding shares ordinary voting power of Voting Stock an entity all or substantially all of the surviving entity or assets of which are utilized in an operating business. (yb) an acquisition Each Member shall have the option, exercisable at any time during the first 45 calendar days of assets or stock the Subscription Period by delivering a written notice (a “Participation Notice”) to the Company so long aswithin such 45 day period, to subscribe for any amount of such Equity Securities up to such Member’s existing Percentage Interest of the Equity Securities proposed to be issued in either the case Proposed Issuance on the same terms and conditions and subject to the same agreements and for the same consideration, as those of the Proposed Issuance (xsubject to the exceptions indicated in Sections 5.03(c) or and 5.03(d)). (yc) If, subject to the last sentence of Section 5.03(a), the consideration to be paid in the Proposed Issuance includes consideration other than cash, only the Google Entities shall be entitled to exercise participation rights under this Section 5.03 and may elect to pay the cash equivalent value of such transaction has been approved by non-cash consideration for the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and the approval Equity Securities. The cash equivalent value of the transaction by non-cash consideration will be determined as follows: (i) In the event that such director is required pursuant non-cash consideration consists of any publicly-traded securities, such securities shall be valued as follows: (A) if the securities are then traded on an Eligible Exchange (or a similar national quotation system), then the value of the securities shall be deemed to Section 5 hereof (a "Qualifying Acquisition") be the VWAP of the securities on such exchange or system over the 10 trading day period ending five trading days prior to the closing of the Proposed Issuance; and (B) any rights or obligations pursuant to this Section 3 shall terminate upon an Initial Public Offering. For purposes of this Section 3if the securities are actively traded over-the-counter, "Voting Stock" shall mean stock then the value of the Company of any class or series entitled securities shall be deemed to vote generally in be the election of directors VWAP of the Company.securities over the 10 trading

Preemptive Rights. ‌ (aA) During the Investor Approval Period, other than upon (w) any issuances from the Partnership’s equity incentive plans in effect from time to time, (x) the conversion of the Class B Units, (y) adjustments pursuant to Section 5.12(b)(ix) or (z) the issuance of (1) General Partner Units pursuant to Section 5.2(b), (2) Units pursuant to the Unit Purchase Agreement, (3) the CEI Class B Units and (4) the CTPL Class B Units, the Partnership shall not issue or transfer any Equity Securities other than in compliance with this Section 5.12(b)(vii), Section 5.8 and Section 5.12(b)(ix). If at any time the Partnership wishes to issue or transfer to any Person any Equity Securities, the Partnership shall (1) promptly, but not later than ten (10) days prior to the planned date of any such issuance or transfer, deliver a notice of such proposed issuance or transfer to the Purchaser (the “Equity Securities Notice”) and (2) promptly deliver a notice to the Purchaser of approval of such issuance or transfer by the Board of Directors. The Equity Securities Notice shall include (x) a description of the Equity Securities, (y) the identity of the proposed recipient(s) of the Equity Securities if such proposed recipient(s) have been identified and (z) a description of the consideration and material terms and conditions upon which the proposed issuance or transfer is being made (provided, that in no event shall such terms and conditions include matters that would violate the Purchaser’s rights pursuant to this Section 5.12(b)(vii)), together with a copy of any written agreements relating thereto. (B) During the Investor Approval Period, the Purchaser and the General Partner (in connection with the exercise of any rights of the General Partner pursuant to Section 5.8 (each an “Electing Party”) shall have an option for a period of three (3) Business Days from the date that the Board of Directors approves the issuance of the Equity Securities, which shall be no sooner than 13 days from the Equity Securities Notice, to elect to purchase, at the same price and on the same material terms and conditions as described in the Equity Securities Notice, some or all of the offered Equity Securities in an amount up to the Electing Party’s Preemptive Share, by delivering to the Partnership irrevocable written notice within such period setting forth the number of Equity Securities which the Electing Party wishes to purchase and an undertaking to pay in full at closing the purchase price for such Equity Securities.‌ (C) If the Company proposes General Partner does not exercise its right set forth in Section‌ 5.8 and this Section 5.12(b)(vii) to issue or otherwise Transfer any purchase its Preemptive Share of the Equity Securities to any Personstated in the Equity Securities Notice, then the Company Purchaser shall make have an option for a period of three (3) Business Days after the offer Purchaser’s receipt of notice that the General Partner has not exercised all or any portion of such right to sell and otherwise comply with elect to purchase an additional amount of such Equity Securities up to the requirements aggregate amount of offered Equity Securities not committed to be purchased by the General Partner. The Purchaser desiring to exercise its option set forth in this Section 5.12(b)(vii)(C) shall deliver irrevocable written notice to the Partnership within such three (3) Business Day period setting forth the number of Equity Securities which the Purchaser wishes to purchase and an undertaking to pay in full at closing the purchase price for such Equity Securities. (D) The closing of the Equity Securities offered pursuant to the Equity Securities Notice shall occur concurrently with the closing of the offering contemplated in the Equity Securities Notice. Notwithstanding The Purchaser shall pay the foregoingsame‌ amount per Equity Security that the Partnership would receive from the underwriters (to the extent the Equity Securities are contemplated being sold pursuant to an underwritten sale) in connection with any exercise of its preemptive rights pursuant to Section 5.8 and this Section 5.12(b)(vii). (E) Any Equity Securities for which the Purchaser or the General Partner, (Aas applicable, has not elected to purchase following the expiration of the applicable period(s) the Company may Transfer Securities, and any right, title or interest therein, without making the offer to sell set forth in this Section 3 5.12(b)(vii)(C) and Section 5.12(b)(vii)(D) may be sold or transferred to the proposed recipient(s) on substantially the same terms and conditions set forth in connection with the Equity Securities Notice at any time during the period ending ninety (i90) an Initial Public Offering, (ii) the issuance of up to 200,000 shares of Common Stock to management and employees days after termination of the Company later of such applicable period. Any Equity Securities that the Partnership desires to issue or transfer following such ninety (90) day period or not on substantially the same terms and conditions set forth in the Equity Securities Notice must be offered to the Purchaser and the General Partner and its Affiliates with a new Equity Securities Notice pursuant to the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides for the issuance of Securities exclusively to directors, officers or employees of the Company, (iii) the issuance of shares of Common Stock pursuant to the Employment Agreement and the Warrants or (iv) an issuance of Securities in consideration for and upon consummation of (x) a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority of the issued and outstanding shares of Voting Stock of the surviving entity or (y) an acquisition of assets or stock by the Company so long as, in either the case of (x) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations pursuant to this Section 3 shall terminate upon an Initial Public Offering. For purposes terms of this Section 3, "Voting Stock" shall mean stock of the Company of any class or series entitled to vote generally in the election of directors of the Company5.12(b)(vii).

Preemptive Rights. (a) If Except in the Company proposes to issue or otherwise Transfer any Securities to any Personcase of an Exempt Issuance (as defined below), then the Company shall make not issue (an "ISSUANCE") additional equity securities, or securities convertible into or exchangeable for, or options to purchase, any such equity securities, to any BRS Investor, officer, director or Affiliate of the offer Company or any BRS Investor unless, prior to sell such Issuance, the Company notifies the holders of Registrable Securities in writing of the Issuance and otherwise comply grants to the holders of Registrable Securities the right (the "RIGHT") to subscribe for and purchase a portion of such additional equity securities so issued at the same price as issued in the Issuance such that, after giving effect to the Issuance and exercise of the Right (including, if applicable, the issuance of equity securities upon conversion, exchange or exercise of any such security), the equity securities owned by the holders of Registrable Securities (rounded to the nearest whole unit or share, as applicable) shall represent the same percentage of the outstanding equity of the Company as was owned by the holders of Registrable Securities prior to the Issuance. The Right may be exercised by the holders of Registrable Securities at any time by written notice to the Company received by the Company within 15 business days after receipt of notice from the Company of the Issuance (the "ACCEPTANCE PERIOD"), and the closing of the purchase and sale pursuant to the exercise of the Right shall occur at least 15 days after the Company receives notice of the exercise of the Right and prior to or concurrently with the requirements set forth closing of the Issuance. (b) To the extent exercise of a Right by the holders of Registrable Securities has not been received within the Acceptance Period, the Company may, at its election, during a period of 90 days following the expiration of the applicable Acceptance Period, issue and sell the remaining equity interests in connection with the Issuance to any officer, director or Affiliate of the Company or any BRS Investor at a price and upon terms not more favorable to such any stockholder, officer, director or Affiliate of the Company or any BRS Investor than those stated in the Company's notice to the holders of Registrable Securities. In the event the Company has not sold any equity interests covered by a Company's notice to the holders of Registrable Securities, to any stockholder, officer, director or Affiliate of the Company or any BRS Investor within such 90-day period, the Company shall not thereafter issue or sell such equity interests to any stockholder, officer, director or Affiliate of the Company or any BRS Investor, without first offering such to the holders of Registrable Securities in the manner provided in this Section 3. Notwithstanding 6; PROVIDED, HOWEVER, that failure by the foregoing, (A) the Company may Transfer Securities, and any right, title or interest therein, without making the offer holders of Registrable Securities to sell set forth in this Section 3 in connection with (i) an Initial Public Offering, (ii) the issuance of up exercise its option to 200,000 shares of Common Stock to management and employees of the Company pursuant to the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides for the issuance of Securities exclusively to directors, officers or employees of the Company, (iii) the issuance of shares of Common Stock pursuant to the Employment Agreement and the Warrants or (iv) an issuance of Securities in consideration for and upon consummation of (x) a merger purchase with respect to which the holders one Issuance and sale of Voting Stock immediately prior equity interests shall not affect its option to such merger beneficially own not less than a majority of the issued and outstanding shares of Voting Stock of the surviving entity or (y) an acquisition of assets or stock by the Company so long as, purchase equity interests in either the case of (x) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations pursuant to this Section 3 shall terminate upon an Initial Public Offering. For purposes of this Section 3, "Voting Stock" shall mean stock of the Company of any class or series entitled to vote generally in the election of directors of the Companysubsequent Issuance.

Preemptive Rights. (a) If Prior to the occurrence of the Initial Public Offering, if and for so long as the Purchaser owns at least ten percent (10%) of the Company's Common Stock (determined on a fully diluted basis) and subject to the other provisions of this Agreement, the Company proposes shall not issue, sell, or enter into any agreement(s) or commitment(s) pursuant to issue which it becomes obligated to issue, in each case for cash, any shares of its common stock, or otherwise Transfer any warrants, options or other securities convertible or exchangeable into common stock (collectively, the "Equity Securities"), unless the Company shall first provide a written offer (the "Preemptive Rights Offer") to the Purchaser and Nevasa, offering to sell to the Purchaser and Nevasa at the same price, and on the same terms and conditions, such amount of such Equity Securities as would enable the Purchaser and Nevasa to maintain their then proportionate interests (determined on a fully diluted basis) of the Company's common stock. Such Preemptive Rights Offer shall remain outstanding for at least thirty (30) days from the date of such notice and shall be exercised by the Purchaser or Nevasa by serving written notice on the Company within such thirty (30) day period; provided, however, that in the case of a proposed underwritten sale of any such Equity Securities, the Preemptive Rights Offer shall commence on the offering of such Equity Securities and shall remain outstanding only until the consummation of the sale of such Equity Securities in accordance with the terms and timing of such offering. The consummation of the Preemptive Rights Offer shall take place simultaneously with the closing of the sale by the Company of such Equity Securities. Notwithstanding the foregoing, if the Company sells such Equity Securities as part of a unit, the Preemptive Rights Offer shall be for such units. (b) The Preemptive Rights Offer shall not apply to: (i) any issuances or grants of common stock or rights by the Company to the officers, directors or employees of the Company or any of its Subsidiaries pursuant to the Company's 1998 Stock Option Plan or pursuant to any Personother employee benefit or other incentive plan adopted by the Board of Directors after the date hereof (collectively, the "Option Plans"); (ii) except as set forth in Section 4.6(c), the exercise of any options or rights issued pursuant to or in connection with any Option Plan; or (iii) the issuance of any securities by the Company upon the exercise of any exchange, conversion or similar feature contemplated by any security issued pursuant to the Securityholders Agreement. (c) Notwithstanding anything to the contrary above, the exercise of the Purchaser's Preemptive Rights Offer in the event of the exercise of any options granted under any Option Plan by any grantee of such options shall be effected solely in accordance with the following terms and conditions: (i) no later than January 15 of each year prior to the occurrence of the Initial Public Offering, the Company shall notify the Purchaser of any exercise of stock options and of the issuance of shares of Common Stock pursuant to such exercises under Option Plans during the preceding calendar year and the "Fair Market Value" (as such term is defined in the 1998 Stock Option Plan or any other Option Plan) as determined by the Stock Option Committee of the Board of Directors with respect to grants of stock options for the Company's Common Stock under any Option Plan for such preceding calendar year; (ii) with respect to any shares of Common Stock issued to grantees under any Option Plan during such preceding calendar year, in the event that (A) the Purchaser has prior to such date exercised all rights under prior Preemptive Rights Offers provided to it under this Section 4.6, and (B) without the exercise of a Preemptive Rights Offer in respect of such issued shares of Common Stock, the Purchaser would own less than twenty percent (20%) of the Company's outstanding common stock at the end of the preceding calendar year, then the Company shall make provide to the offer Purchaser a Preemptive Rights Offer to sell and otherwise comply with the requirements set forth in this Section 3. Notwithstanding the foregoing, (A) the Company may Transfer Securities, and any right, title or interest therein, without making the offer to sell set forth in this Section 3 in connection with (i) an Initial Public Offering, (ii) the issuance purchase such number of up to 200,000 additional shares of Common Stock to management maintain the lesser of (1) twenty percent (20%) of the Company's outstanding common stock determined on a fully diluted basis or (2) the Purchaser's then proportionate interest (determined on a fully diluted basis) of the Company's common stock calculated as if no options had been exercised during the preceding calendar year, at the Fair Market Value determined by the Stock Option Committee of the Board of Directors for the preceding calendar year for grants of stock options during such year under any Option Plan; and employees (iii) the Purchaser shall have a period of thirty (30) days to notify the Company of its intent to exercise its preemptive rights and to pay in cash to the Company the purchase price for such shares of Common Stock and shall receive certificates for such shares against payment therefor. For the avoidance of doubt, the obligation of the Company pursuant to provide a Preemptive Rights Offer to the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides for the issuance of Securities exclusively to directors, officers or employees of the Company, (iii) Purchaser in connection with the issuance of shares of Common Stock pursuant to the Employment Agreement and exercise of stock options under the Warrants or (iv) an issuance Option Plans shall cease on the earlier of Securities in consideration for and upon consummation of (x) a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority of the issued and outstanding shares of Voting Stock of the surviving entity or (y) an acquisition of assets or stock the Initial Public Offering and (z) any failure by the Company so long as, in either the case of (x) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right Purchaser to nominate directors pursuant exercise its rights under a prior Preemptive Rights Offer provided to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations it pursuant to this Section 3 shall terminate upon an Initial Public Offering. For purposes 4.6. (d) In furtherance of this Section 34.6(c), "Voting Stock" shall mean stock (i) effective on the Closing Date, the Company will reserve for issuance to the Purchaser such number of shares of Common Stock as is equal to twenty percent (20%) of the number of shares of Common Stock then subject to options granted to date under the Company's 1998 Stock Option Plan, and (ii) the Company will not grant any further options under its 1998 Stock Option Plan or any other Option Plan unless prior to such grant it shall have reserved for issuance to the Purchaser such number of any class or series entitled shares of Common Stock as is equal to vote generally in the election of directors twenty percent (20%) of the Companynumber of shares of Common Stock subject to such options.

Preemptive Rights. (a) If For so long as a Purchaser, together with its Affiliates and, for purposes of this Section 4.22, persons who share a common discretionary investment advisor with such Purchaser, holds a Minimum Ownership Interest, if at any time after the date hereof the Company or any of its Subsidiaries makes any public or nonpublic offering or sale of any equity (including Common Stock, Series C Preferred Stock, Non-Voting Common Stock or restricted stock), or any securities, options or debt that is convertible or exchangeable into equity or that includes an equity component (such as, an “equity kicker”) (including any hybrid security) (any such security, a “New Security”) (other than (i) any Common Stock, Non-Voting Common Stock or other securities issuable upon the exercise or conversion of any securities of the Company issued or agreed or contemplated (and disclosed to the Purchasers in writing) to be issued as of the date hereof; (ii) pursuant to the granting or exercise of employee stock options, restricted stock or other stock incentives pursuant to the Company’s stock incentive plans approved by the Board or the issuance of stock pursuant to the Company’s employee stock purchase plan approved by the Board or similar plan where stock is being issued or offered to a trust, other entity or otherwise, for the benefit of any employees, officers or directors of the Company, in each case in the ordinary course of providing incentive compensation in all cases not to exceed in the aggregate the number of shares of Common Stock authorized and reserved for issuance under the 2019 Plan as of the date hereof (excluding employee stock options, restricted stock or other stock incentives issued under the 2003 Plan and the 2009 Plan which are outstanding as of the date hereof); or (iii) issuances of capital stock as full or partial consideration for a merger, acquisition, joint venture, strategic alliance, license agreement or other similar non-financing transaction), then that Purchaser shall be afforded the opportunity to acquire from the Company for the same price (net of any underwriting discounts or sales commissions) and on the same terms as such securities are proposed to be offered to others, up to the amount of New Securities in the aggregate required to enable it to maintain its proportionate Common Stock equivalent interest in the Company (or its Subsidiaries) immediately prior to any such issuance of New Securities. The amount of New Securities that such Purchaser shall be entitled to purchase in the aggregate shall be determined by multiplying (x) the total number or principal amount of such offered New Securities by (y) a fraction, the numerator of which is the total number of shares of Common Stock then held by such Purchaser (counting for such purposes all shares of Common Stock into or for which any securities owned by such Purchaser are directly or indirectly convertible or exercisable, including the Series C Preferred Stock and the Non-Voting Common Stock), if any, and the denominator of which is the total number of shares of Common Stock then outstanding (counting for such purposes all shares of Common Stock into or for which any securities owned by such Purchaser are directly or indirectly convertible or exercisable, including the Series C Preferred Stock and the Non-Voting Common Stock). Notwithstanding anything herein to the contrary, in no event shall a Purchaser have the right to purchase New Securities hereunder to the extent such purchase would result in such Purchaser, together with any other Person whose Company securities would be aggregated with such Purchaser’s Company securities for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by such Purchaser) would represent more than 9.9% (or, following the Bank Regulatory Approvals, 24.9% with respect to Castle Creek) of the Voting Securities or more than 33.3% of the Company’s total equity outstanding. (b) Notwithstanding anything in this Section 4.22 to the contrary, upon the request of any Purchaser that such Purchaser not be issued Voting Securities in whole or in part upon the exercise of its rights to purchase New Securities, the Company shall cooperate with such Purchaser to modify the proposed issuance of New Securities to the Purchaser to provide for the issuance of Series C Preferred Stock, Non-Voting Common Stock or other non-voting securities in lieu of Voting Securities; provided, however, that to the extent, following such reasonable cooperation, such modification would cause any other Purchaser to exceed its respective ownership limitation set forth in this Agreement, the Company shall, and shall only be obligated to, issue and sell to the Purchaser such number of Voting Securities and nonvoting securities as will not cause any other Purchaser to exceed its respective ownership limitation set forth in this Agreement and that the Purchaser has indicated it is willing to hold following consummation of such Offering (as defined in Section 4.23(c) below), and any remaining securities may be offered, sold or otherwise transferred to any other person or persons in accordance with Section 4.23(e). (c) In the event the Company proposes to issue offer or otherwise Transfer sell New Securities (the “Offering”), it shall give each Purchaser written notice of its intention, describing the price (or range of prices), anticipated amount of New Securities, timing, and other terms upon which the Company proposes to offer the same (including, in the case of a registered public offering and to the extent possible, a copy of the prospectus included in the registration statement filed with respect to such Offering). Each such Purchaser shall have fifteen (15) Business Days from the date of receipt of such a notice (the “Response Period”) to notify the Company in writing that it intends to exercise its rights provided in this Section 4.22 and as to the amount of New Securities such Purchaser desires to purchase, up to the maximum amount calculated pursuant to Section 4.22. Such notice shall constitute a nonbinding indication of interest of such Purchaser to purchase the amount of New Securities so specified at the price and on the terms set forth in the Company’s notice to such Purchaser. The failure of such Purchaser to respond within the Response Period shall be deemed to be a waiver of such Purchaser’s rights under this Section 4.22 only with respect to the Offering described in the applicable notice, but shall not impact any other Purchaser’s rights under this Section 4.22. (d) If a Purchaser exercises its rights provided in this Section 4.22, the closing of the purchase of the New Securities in connection with the closing of the Offering with respect to which such right has been exercised shall take place within ninety (90) calendar days after the giving of notice of such exercise, which period of time shall be extended for a maximum of 180 days in order to comply with applicable Laws and regulations (including receipt of any Personapplicable regulatory or shareholder approvals). Notwithstanding anything to the contrary herein, then the closing of the purchase of the New Securities by a Purchaser will occur no earlier than the closing of the Offering triggering the right being exercised by such Purchaser. Each of the Company and such Purchaser agrees to use its commercially reasonable efforts to secure any regulatory or shareholder approvals or other consents, and to comply with any law or regulation necessary in connection with the offer, sale and purchase of, such New Securities. (e) In the event a Purchaser fails to exercise its rights provided in this Section 4.22 within this Response Period or, if so exercised, such Purchaser is unable to consummate such purchase within the time period specified in Section 4.23(d) above because of its failure to obtain any required regulatory or shareholder consent or approval, the Company shall make thereafter be entitled (during the offer period of sixty (60) days following the conclusion of the applicable period) to sell and otherwise comply with or enter into an agreement (pursuant to which the requirements set forth in sale of the New Securities covered thereby shall be consummated, if at all, within ninety (90) days from the date of such agreement) to sell the New Securities not elected to be purchased pursuant to this Section 34.22 by such Purchaser or which such 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 in the aggregate to the purchasers of such New Securities than were specified in the Company’s notice to such Purchaser. Notwithstanding the foregoing, if such sale is subject to the receipt of any regulatory or shareholder approval or consent or the expiration of any waiting period, the time period during which such sale may be consummated shall be extended until the expiration of five (A5) Business Days after all such approvals or consents have been obtained or waiting periods expired, but in no event shall such time period exceed 180 days from the date of the applicable agreement with respect to such sale. In the event the Company has not sold the New Securities or entered into an agreement to sell the New Securities within such 60-day period (or sold and issued New Securities in accordance with the foregoing within ninety (90) days from the date of such agreement (as such period may be extended in the manner described above for a period not to exceed 180 days from the date of such agreement)), the Company shall not thereafter offer, issue or sell such New Securities without first offering such New Securities to each Purchaser in the manner provided above. (f) Notwithstanding the foregoing provisions of this Section 4.22, if a majority of the directors of the Board determines that the Company must issue equity or debt securities on an expedited basis, then the Company may Transfer Securities, consummate the proposed issuance or sale of such securities (“Expedited Issuance”) and any right, title or interest therein, without making then comply with the offer to sell set forth in provisions of this Section 3 in connection with 4.22 provided that (i) an Initial Public Offeringthe purchasers of such New Securities have consented in writing to the issuance of additional New Securities in accordance with the provisions of this Section 4.22, and (ii) the issuance sale of up any such additional New Securities under this Section 4.23(f) to 200,000 shares each Purchaser shall be consummated as promptly as is practicable but in any event no later than 90 days subsequent to the date on which the Company consummates the Expedited Issuance under this Section 4.23(f). Notwithstanding anything to the contrary herein, the provisions of Common Stock to management this Section 4.23(f) (other than as provided in subclause (ii) of this Section 4.23(f)) shall not be applicable and employees the consent of the purchasers of such New Securities shall not be required in connection with any Expedited Issuance undertaken at the written direction of the applicable federal regulator of the Company pursuant to or the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides for the issuance of Securities exclusively to directors, officers or employees of the Company, Bank. (iiig) the issuance of shares of Common Stock pursuant to the Employment Agreement and the Warrants or (iv) an issuance of Securities in consideration for and upon consummation of (x) a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority of the issued and outstanding shares of Voting Stock of the surviving entity or (y) an acquisition of assets or stock by the Company so long as, in either In the case of the offering of securities for a consideration in whole or in part other than cash, including securities acquired in exchange therefor (x) or (yother than securities by their terms so exchangeable), such transaction has been approved the consideration other than cash shall be deemed to be the fair value thereof as determined by the affirmative vote of at least one director appointed Board; provided, however, that such fair value as determined by Nu-Tech if, at the time such merger is consummated, Nu-Tech has Board shall not exceed the right to nominate directors pursuant to Section 4 hereof and the approval aggregate market price of the transaction by securities being offered as of the date the Board authorizes the offering of such director is required pursuant securities. (h) The Company and each of the Purchasers shall cooperate in good faith to Section 5 hereof (a "Qualifying Acquisition") and (B) any facilitate the exercise of such Purchaser’s rights or obligations pursuant to under this Section 3 shall terminate upon an Initial Public Offering. For purposes of this Section 34.22, "Voting Stock" shall mean stock of the Company of including to secure any class required approvals or series entitled to vote generally in the election of directors of the Companyconsents.

Preemptive Rights. (a) If Except as provided in Section 6.2 below, if after the date hereof the Company proposes authorizes the issuance and sale of any shares of its equity securities or any securities containing options or rights to issue acquire any shares of capital stock or otherwise Transfer any Securities to any Personother equity securities of the Company, then the Company shall make the will first offer in writing to sell and otherwise comply with to each Shareholder a portion of such equity securities, options or rights equal to the requirements set forth in this Section 3. Notwithstanding the foregoing, (A) the Company may Transfer Securities, and any right, title or interest therein, without making the offer to sell set forth in this Section 3 in connection with percentage determined by dividing (i) an Initial Public Offering, the number of shares of capital stock then held by such Shareholder by (ii) the issuance of up to 200,000 shares of Common Stock to management and employees of the Company pursuant to the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides for the issuance of Securities exclusively to directors, officers or employees of the Company, (iii) the issuance number of shares of Common Stock pursuant to the Employment Agreement and the Warrants or capital stock outstanding (iv) an issuance of Securities in consideration for and upon consummation of (x) on a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority of the issued and outstanding shares of Voting Stock of the surviving entity or (y) an acquisition of assets or stock by the Company so long as, in either the case of (x) or (yfully diluted basis), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time most favorable price and on the most favorable terms as such merger is consummatedequity securities, Nu-Tech has the right options or rights are to nominate directors pursuant be offered to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations pursuant to this Section 3 shall terminate upon an Initial Public Offeringother person. For purposes of this Section 36.1, capital stock acquirable upon exercise or conversion of options or rights to acquire any shares of capital stock or any other equity securities of the Company shall be deemed outstanding only if the applicable conversion price, exercise price or other acquisition price per share is equal to or less than the then current Fair Value Per Share. In the event any Shareholder shall not, within ten (10) business days after receipt of such written offer, timely exercise his rights under this Section 6.1 to purchase a portion of such equity securities, options or rights, or if after timely exercising such right shall fail timely to consummate such purchase (a "Voting Stock" Non-Purchasing Shareholder"), each other Shareholder that has fully exercised its right under this Section 6.1 to purchase such Shareholder's portion of such equity securities, options or rights and who has timely consummated such purchase (a "Purchasing Shareholder") shall mean have the right to purchase such Purchasing Shareholder's pro rata share (determined among all Purchasing Shareholders on the basis of their respective ownership of capital stock of the Company) of the portion of such equity securities, options or rights which the Non-Purchasing Shareholder had the right to purchase under this Article 6. Any computation of the number of shares of equity securities, options or rights that a Shareholder has the right to purchase under this Article 6 shall be rounded to the nearest whole share. Each Shareholder must exercise its purchase rights within thirty (30) days after receipt of written notice from Company of any class describing in reasonable detail the equity securities, options or series entitled to vote generally rights being offered, the purchase price thereof, the payment terms and such Shareholder's percentage allotment or in the election of directors case of the Companypurchase by a Purchasing Shareholder of a portion of the equity securities, options or rights that a Non-Purchasing Shareholder had the right to, but did not purchase, within forty-five (45) days after receipt of such written notice. The provisions of this Section 6.1 shall terminate upon the consummation of a Public Offering (as defined in Section 9.12(e) hereof).

Preemptive Rights. (a) If the Company proposes owners of the Class B Common Units (subject to issue or otherwise Transfer any Securities to any Person, then SECTION 3.10 hereof): (y) determines that additional capital is required by the Company shall make to facilitate the offer to sell and otherwise comply with the requirements set forth in this Section 3. Notwithstanding the foregoing, (A) the Company may Transfer Securities, and any right, title or interest therein, without making the offer to sell set forth in this Section 3 in connection with (i) an Initial Public Offering, (ii) the issuance of up to 200,000 shares of Common Stock to management and employees of the Company pursuant to the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides for the issuance of Securities exclusively to directors, officers or employees business needs of the Company, including, without limitation, to meet the Company's operating expenses, to fund the expansion of the Company's Project or other business and to purchase any Property reasonably necessary for the operation of the Company, and (iiiz) authorizes the issuance and sale of any securities or any securities containing options or rights to acquire any securities of the Company (including, without limitation, convertible debt), the Company shall first offer to sell to each Member a portion of such securities on a basis pro rata to their Percentage Interests (i.e., for such Member to make an additional capital contribution for the amount of the securities to be issued ("ADDITIONAL CAPITAL CONTRIBUTION")). Each such Member shall be entitled to purchase such securities at the same price and on the same terms and conditions as such securities are to be offered. If any Member elects not to exercise or exercises only a portion of its rights granted under this Section, each other Member shall be entitled to purchase the securities offered to (but not purchased by) such Member. All of such securities shall be offered to the Members until all securities proposed to be issued by the Company are sold to all Members desiring to purchase such securities or no Member desires to purchase more securities. Each Member must elect to exercise its purchase/Additional Capital Contribution rights hereunder within sixty (60) days after receipt of written notice from the Company describing in reasonable detail the securities being offered, the purpose for which the additional securities are being offered, the purchase price thereof, the payment terms, and such Member's percentage allotment. Upon the expiration of such sixty (60) day period, the Company shall be free to sell such securities which the Members have not purchased or elected to purchase during the six (6) month period following such expiration on terms and conditions no more favorable to the purchasers thereof than those offered to such Members (provided that the non-Member purchaser of any such securities must comply with all of the other terms, provisions and conditions contained in this Agreement applicable to an assignee/transferee). Any securities offered or sold by the Company after such six (6) month period must be reoffered to the Members pursuant to the terms of this Section. The provisions of this Section shall not apply to the issuance of shares of Common Stock pursuant to the Employment Agreement and the Warrants options for employees or (iv) an issuance of Securities in consideration for and upon consummation of (x) a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority consultants of the issued and outstanding shares of Voting Stock of the surviving entity or (y) an acquisition of assets or stock by the Company so long as, in either the case of (x) or (y), such transaction has been that are approved by the affirmative vote Super Majority of at least one director appointed by Nu-Tech ifthe Board (which options the parties hereto acknowledge and agree shall be granted through a new class of nonvoting membership units in the Company; provided, at to the time extent applicable, any dilution to any Member's economic interest as a direct result of such merger is consummated, Nu-Tech has options shall apply to both the right to nominate directors pursuant to Section 4 hereof Class A Common Units and the approval of the transaction by such director is required pursuant to Section 5 hereof (Class B Common Units on a "Qualifying Acquisition") and (B) any pari passu basis). The rights or obligations pursuant to under this Section 3 shall terminate upon the first to occur of a Sale Event or the closing of an Initial Public OfferingIPO. For purposes of this Section 3EXHIBIT A hereto shall, "Voting Stock" shall mean stock simultaneously with the payment of the Company purchase price, be revised to reflect the changes in Percentage Interests of any class or series entitled to vote generally the Members (i.e., increase in the election of directors Percentage Interests of the CompanyMembers making the Additional Contribution and the decrease in the Percentage Interest of the Member not making the Additional Capital Contribution), and distributions pursuant to SECTIONS 8.1 and 8.4 hereof shall be adjusted accordingly.

Preemptive Rights. (a) If the Company proposes to issue or otherwise Transfer any Securities to any Person, then the Company shall make the offer to sell and otherwise comply with the requirements Except as set forth in this Section 3subsection (b) below, the Company will not issue, sell or otherwise transfer to the Xxxx Stockholders or the Bear Xxxxxxx Stockholders (an "Issuance") at any time prior to a Public Offering, any capital -------- stock or debt securities (or securities convertible into or exercisable or exchangeable for capital stock or debt securities) unless, at least 15 days prior to such Issuance, the Company notifies each holder of Executive Stock in writing of the Issuance (including the price, the purchasers thereof and the other terms thereof) and grants to each holder of Executive Stock, the right (the "Right") to subscribe for and purchase a portion of such ----- additional shares or other securities so issued at the same price and on the same terms as issued in the Issuance equal to the quotient determined by dividing (1) the number of fully diluted shares of Class A Common and Class B Common held by such holder by (2) the total number of shares of Class A Common and Class B Common outstanding on a fully diluted basis. Notwithstanding the foregoing, if all Persons entitled to purchase or receive such stock or securities are required to also purchase other securities of the Company, the holders of capital stock exercising their Right pursuant to this Section shall also be required to purchase the same strip of securities (Aon the same terms and conditions) that such other Persons are required to purchase. The Right may be exercised by such holder at any time by written notice to the Company may Transfer Securitiesreceived by the Company within 10 days after receipt by such holder of the notice from the Company referred to above. The closing of the purchase and sale pursuant to the exercise of 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. (b) Notwithstanding the foregoing, and any right, title or interest therein, without making the offer Right shall not apply to sell set forth in this Section 3 in connection with (i) an Initial Public Offeringissuances of capital stock or debt securities (or securities convertible into or exchangeable for, or options to purchase, capital stock or debt securities), pro rata to all holders of any class of Stock, as a dividend on, subdivision of or other distribution in respect of, such class of capital stock, (ii) the issuance conversions or exchanges of up to 200,000 shares one class or form of Common Stock to management and employees capital stock into another class or form of the Company pursuant to the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides for the issuance of Securities exclusively to directors, officers or employees of the Companycapital stock, (iii) issuances of capital stock upon exercise of any debt security issued by the issuance of shares of Common Stock pursuant to the Employment Agreement and the Warrants Company, or (iv) an the issuance of Securities capital stock (or securities convertible into or exchangeable for, or options to purchase, capital stock) on customary, arm's length terms in consideration for and upon consummation of (x) a merger connection with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority of the issued and outstanding shares of Voting Stock of the surviving entity or (y) an acquisition of assets or stock provision by the Xxxx Stockholders or the Bear Xxxxxxx Stockholders of debt financing to the Company so long as, in either the case of or its Subsidiaries. (xc) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations pursuant to this Section 3 shall terminate upon an Initial Public Offering. For purposes The provisions of this Section 3, "Voting Stock" shall mean stock 12 will terminate upon the consummation of the Company of any class a Public Offering or series entitled to vote generally in the election of directors of the Companyupon a Xxxx Exit.

Preemptive Rights. (a) If the Company proposes to issue issue, grant or otherwise Transfer any Securities to any Personsell common stock, then preferred stock, other equity securities or Rights, the Company shall make first give to each Purchaser and any transferee of Shares from the offer Purchaser (each a "SECURITYHOLDER") written notice setting forth in reasonable detail the price and other terms on which such equity securities or Rights are proposed to sell be issued, granted or sold, the terms of any such Rights and otherwise comply with the requirements amount thereof proposed to be issued, granted or sold. Each Securityholder shall thereafter have the preemptive right, exercisable by written notice to the Company no later than 15 days after the Company's notice is given, to purchase such Securityholder's Proportionate Share of the number of such equity securities or Rights that are proposed to be issued, granted or sold. Any such purchase by any Securityholder shall be at the price and on the other terms set forth in the Company's notice. Any notice by a Securityholder exercising the right to purchase equity securities or Rights pursuant to this Section 5.1 shall constitute an irrevocable commitment to purchase from the Company the equity securities or Rights specified in such notice, subject to the maximum set forth in this paragraph. If the Securityholders exercise their preemptive rights set forth in this Section 3. Notwithstanding 5.1(a) to the foregoing, (A) the Company may Transfer Securities, and any right, title or interest therein, without making the offer to sell full extent of their rights set forth in this Section 3 5.1(a), then the closing of the purchase of equity securities or Rights by Securityholders shall take place on such date, no less than 10 and no more than 60 days after the expiration of the 15-day period referred to above, as the Company may select, and the Company shall notify the Securityholders of such closing at least 7 days prior thereto. If all Persons entitled thereto do not exercise their preemptive rights to the full extent of such preemptive rights and, as contemplated by Section 5.1(b), the Company shall issue, grant or sell equity securities or Rights to persons other than Securityholders, then the closing of the purchase of such equity securities or Rights shall take place at the same time as the closing of such issuance, grant or sale. (b) The Company shall use its good faith and commercially reasonable efforts to issue, grant or sell the remaining subject equity securities or Rights on the terms set forth in its notice to Securityholders, unless the Company is advised by its financial advisors that the remaining number or amount is too small to be reasonably sold. From the expiration of the 15-day period first referred to in Section 5.1(a) and for a period of 90 days thereafter, the Company may offer, issue, grant and sell to any person or entity equity securities or Rights having the terms set forth in the Company's notice relating to such equity securities or Rights at a price and on other terms no less favorable to the Company, and including no less cash, than those set forth in such notice (without deduction for reasonable underwriting, sales agency and similar fees payable in connection with therewith); provided, however, that the Company may not issue, grant or sell equity securities or Rights pursuant to this sentence in an amount greater than the amount set forth in such notice minus the amount purchased or committed to be purchased by Securityholders. (c) The provisions of this Section 5.1 shall not apply to the following issuances of securities: (i) pursuant to an Initial Public Offeringemployee stock option plan, a stock purchase plan, or a similar benefit program or agreement approved by the Board of Directors of the Company, where the primary purpose is not to raise additional equity capital for the Company, (ii) as direct consideration for the issuance acquisition by the Company of up to 200,000 shares another business entity or the merger of Common Stock to management and employees any business entity with or into the Company, in each case provided that the transaction is approved by the vote of a majority of the Company pursuant to the Company's 1997 Equity and Performance Incentive Plan outstanding Shares, (iii) in connection with a stock split or any other incentive plan which provides for the issuance of Securities exclusively to directors, officers dividend or employees a recapitalization or reorganization of the Company, (iii) in each case provided that the issuance transaction is approved by the vote of shares of Common Stock pursuant to the Employment Agreement and the Warrants or (iv) an issuance of Securities in consideration for and upon consummation of (x) a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority of the issued and outstanding shares Shares, (iv) upon the exercise of Voting Stock warrants or options, or upon the conversion of convertible securities, outstanding on the surviving entity date hereof or (y) an acquisition of assets or stock by the Company so long as, in either the case of (x) or (y), such transaction has as to which Securityholders have been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has previously offered the right to nominate directors pursuant to Section 4 hereof and participate as contemplated hereby, or (v) securities issued in an underwritten public offering registered under the approval Securities Act, provided that such offering is approved by a vote of a majority of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations pursuant to this Section 3 shall terminate upon an Initial Public Offering. For purposes of this Section 3, "Voting Stock" shall mean stock of the Company of any class or series entitled to vote generally in the election of directors of the Companyoutstanding Shares.

Preemptive Rights. (a) If In the event that the Company proposes to issue or otherwise Transfer an issuance of any Securities of its securities other than Excluded Stock to any Personparty, then it shall give written notice of such issuance to each holder of Preferred Shares and/or Conversion Shares (the "Offerees"). The Company's written notice to the Offerees shall describe the securities proposed to be issued by the Company and specify the number, price and payment terms. Each holder of the Preferred Shares and/or Conversion Shares shall have the right, for a period of twenty (20) days from such notice, to agree to purchase, at the same price and on the same terms and conditions, that number of additional securities of the Company as would be necessary to preserve such holder's percentage interest in the equity of the Company on a fully diluted, as converted basis, as of the time immediately prior to such issuance. Each Offeree may accept the Company's offer as to the full number of securities offered to it or any lesser number, by written notice thereof given by it to the Company prior to the expiration of the aforesaid twenty (20) day period in which event the Company shall make promptly sell and such Offeree shall buy, upon the terms specified, the number of securities agreed to be purchased by such Offeree. The Company shall be free at any time after the end of the aforesaid twenty (20) day period and prior to ninety (90) days after the date of its notice of offer to the Offerees, to offer and sell to any third party or parties the number of such securities not agreed by the Offerees to be purchased by them, at a price and otherwise comply on payment terms no less favorable to the Company than those specified in such notice of offer to the Offerees. However, if such third party sale or sales are not consummated within such ninety (90) day period, the Company shall not sell such securities and shall not have been purchased within such period without again complying with this Section 3.1. The obligations of the requirements set forth Company under this Section 3.1 shall terminate upon the completion of a Qualified Public Offering. Notwithstanding anything contained in this Section 3. Notwithstanding Agreement to the foregoingcontrary, the Company's written notice of its proposed issuance of newly issued shares to which a participation right applies (Aas provided in the preceding paragraph) the Company may Transfer Securities, and any right, title or interest therein, without making the offer need not be given prior to sell set forth in this Section 3 in connection with (i) an Initial Public Offering, (ii) the issuance of up such newly issued shares, provided such notice is sent within five (5) days thereafter and the Offeree's participation rights remain open for a twenty (20) day period from the receipt thereof, and further provided that the Company has set aside a number of shares sufficient to 200,000 shares of Common Stock to management and employees satisfy the obligations of the Company pursuant to the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides for the issuance of Securities exclusively to directors, officers or employees of the Company, (iii) the issuance of shares of Common Stock pursuant to the Employment Agreement and the Warrants or (iv) an issuance of Securities in consideration for and upon consummation of (x) a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority of the issued and outstanding shares of Voting Stock of the surviving entity or (y) an acquisition of assets or stock by the Company so long as, in either the case of (x) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations pursuant to this Section 3 shall terminate upon an Initial Public Offering. For purposes of this Section 3, "Voting Stock" shall mean stock of the Company of any class or series entitled to vote generally in the election of directors of the Companysection.

Preemptive Rights. In the event that at any time after the date hereof until the date that is two (a2) If years after the Closing Date, the Company proposes to issue or otherwise Transfer any Securities to any Person, then the Company shall make the offer to sell and otherwise comply with the requirements set forth in this Section 3. Notwithstanding the foregoing, (A) the Company may Transfer Securities, and any right, title or interest therein, without making the offer to sell set forth in this Section 3 in connection with (i) an Initial Public Offering, (ii) the issuance of up to 200,000 additional shares of Common Stock or Convertible Securities, other than an Exempt Issuance, pursuant to management and employees of a private offering for a cash investment not registered with the SEC, the Company pursuant shall send a notice (an “Additional Share Notice”) to the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides for Holder setting forth the issuance terms of Securities exclusively such proposed issuance. The Holder shall be entitled to directors, officers or employees of the Company, (iii) the issuance purchase a number of shares of Common Stock pursuant or Convertible Securities, equal to its pro rata portion of 39% of the total number of shares of Common Stock or Convertible Securities proposed to be issued in the offering (the “Preemptive Amount”), where such pro rata amount shall be determined based upon such Holder’s pro rata portion of the total number of Units sold under the Subscription Agreement. By way of example only, if the Holder purchased or acquired one half of the total Units sold under the Subscription Agreement, such Holder would be entitled to purchase one half of the Preemptive Amount. In addition, such Preemptive Amount is determined based on the sale of 10,000,000 Units, and in the event less than such number of Units is sold under the Subscription Agreement the Preemptive Amount shall be reduced proportionately. Such participation by Holder in the offering shall be made on the same terms set forth in the Additional Share Notice by (a) notice to the Employment Agreement and Company (the Warrants or (iv“Purchase Notice”) an issuance of Securities in consideration for and upon consummation of (x) a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority within 10 days of the issued date of the Additional Share Notice and outstanding (b) payment of the price for such shares of Voting Common Stock or Convertible Securities, by wire transfer of the surviving entity immediately available funds or (y) an acquisition such other method of assets or stock by payment as the Company so long asmay approve, in either the case of (x) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right within 10 days after delivery to nominate directors pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations pursuant to this Section 3 shall terminate upon an Initial Public Offering. For purposes of this Section 3, "Voting Stock" shall mean stock of the Company of any class or series entitled to vote generally in the election of directors of the CompanyPurchase Notice.

Preemptive Rights. (a) If the Company proposes shall propose to issue and sell any Shares or otherwise Transfer any security convertible into or exchangeable for any Shares (other than any Shares to be issued (i) to Persons who are, or who are becoming, employees, managers, directors or consultants of the Company or its Subsidiaries in connection with a bona fide option or equity participation plan or other bona fide compensation arrangement that is duly approved by the Board of Managers (“Incentive Shares”), (ii) as part of a debt financing transaction or as consideration for an acquisition, a joint venture or joint venture partner duly approved by the Board of Managers, (iii) pursuant to conversion or exchange rights included in equity interests previously issued by the Company, (iv) in connection with an equity interests split, division or dividend duly approved by the Board of Managers, (v) pursuant to an Initial Public Offering or (vi) in connection with an issuance of Shares on account of the EDF Disputed Claim (as defined in the Order), on the terms and subject to the conditions set forth in the Order (collectively, the “New Securities”) or enter into any contracts relating to the issuance or sale of any New Securities to any PersonPerson (the “Subject Purchaser”), each Member who is an “accredited investor” (as defined in Rule 501(a) of Regulation D promulgated under the Securities Act) and holds Shares (together with its Affiliates and Permitted Transferees) comprising at least an aggregate of 3% of all then outstanding Shares shall have the right (a “Preemptive Right”) to purchase such Member’s pro rata portion (based on ownership of Shares and determined without regard to Members not eligible for such Preemptive Right) of the New Securities at the same price and on the same other terms proposed to be issued and sold (excluding from such Member’s allocated portion an amount of Shares necessary to account for any options, warrants, SARs or other equity rights of Members if the holders of any such options, warrants, SARs or other equity rights are entitled to preemptive rights in any transaction to which this Section 9.8 applies, such that the number of New Securities to be purchased by Members pursuant to this Section 9.8 shall be reduced to permit such preemptive rights following the issuance of the New Securities to such holders upon exercise of their preemptive rights) (the “Proportionate Percentage”). The Company shall make the offer to sell to any such Member its Proportionate Percentage of such New Securities (the “Offered Securities”) and otherwise comply with to sell to any such Member such of the requirements set forth Offered Securities as shall not have been subscribed for by the other Members as hereinafter provided, at the price and on the terms described above, which shall be specified by the Company in this Section 3. Notwithstanding the foregoinga written notice delivered to any such Member, which such notice shall also state (A) the Company may Transfer Securities, and any right, title or interest therein, without making the offer number of New Securities proposed to sell set forth in this Section 3 in connection with (i) an Initial Public Offering, (ii) the issuance of up to 200,000 shares of Common Stock to management and employees of the Company pursuant to the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides for the issuance of Securities exclusively to directors, officers or employees of the Company, (iii) the issuance of shares of Common Stock pursuant to the Employment Agreement and the Warrants or (iv) an issuance of Securities in consideration for and upon consummation of (x) a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority of the be issued and outstanding shares of Voting Stock of the surviving entity or (y) an acquisition of assets or stock by the Company so long as, in either the case of (x) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights the portion of the New Securities available for purchase by such Member (the “Preemptive Offer”). The Preemptive Offer shall by its terms remain open for a period of at least thirty (30) days from the date of receipt thereof, or obligations pursuant to this Section 3 shall terminate upon an Initial Public Offering. For purposes such shorter period of this Section 3, "Voting Stock" shall mean stock time as determined in good faith by the Board of Managers if in the best interests of the Company (but in no event shall such period of time be less than five (5) Business Days) (the “Preemptive Offer Period”), and shall specify the date on which the Offered Securities will be sold to accepting Members (which date shall be not less than five (5) days or more than sixty (60) days from the expiration of the Preemptive Offer Period). The failure of any class Member to respond to the Preemptive Offer during the Preemptive Offer Period shall be deemed a waiver of such Members’ Preemptive Right. (b) Each such Member shall have the right, during the Preemptive Offer Period, to purchase any or series entitled to vote generally all of its Proportionate Percentage of the Offered Securities at the purchase price and on the terms stated in the election Preemptive Offer. Notice by any Member of directors its acceptance, in whole or in part, of a Preemptive Offer shall be in writing (a “Notice of Acceptance”) signed by such Member and delivered to the Company prior to the end of the CompanyPreemptive Offer Period, setting forth the Offered Securities such Member elects to purchase. (c) Each such Member shall have the additional right to offer in its Notice of Acceptance to purchase any of the Offered Securities not accepted for purchase by any other Members, in which event such Offered Securities not accepted by such other Members shall be deemed to have been offered to and accepted by the Members exercising such additional right under this Section 9.8(c) pro rata in accordance with the amount of additional Offered Securities proposed to be purchased by such Member (determined without regard to those Members not electing to purchase their full respective Proportionate Percentages under the Section 9.8(a)) on the same terms and conditions as those specified in the Preemptive Offer, but in no event shall any such electing Member be allocated a number of New Securities in the Company in excess of the maximum number of Offering Securities such Member has elected to purchase in its Notice of Acceptance. (d) At the closing of the purchase of New Securities subscribed for by the Members under this Article IX, the Company shall deliver certificates (if applicable) representing the New Securities, and such New Securities shall be issued free and clear of all liens and the Company shall so represent and warrant, and further represent and warrant that such New Securities shall be, upon issuance thereof to the Members that elected to purchase New Securities and after payment therefor, duly authorized, validly issued, fully paid and non-assessable. Each Member purchasing the New Securities shall deliver at the closing payment in full in immediately available funds for the New Securities purchased by it. At such closing, all of the parties to the transaction shall execute such additional documents as are otherwise necessary or appropriate.

Preemptive Rights. (ai) If Following the date hereof, except (x) with respect to the Company’s exercise of preemptive rights provided to the Company pursuant to the Partnership Agreement, which shall be governed by the Partnership Agreement, and (y) distributions or other payments paid in kind, if the Company proposes to issue issue, offer or otherwise Transfer sell any Membership Interests or other equity securities or equity-linked securities of the Company (“New Securities”) to, or, subject to Section 4.2, receive any loans at any time from, any of the Class A Members or any Affiliate of a Class A Member, then the Company, as directed by the Class A Members, shall either (1) obtain the prior written consent of the Class D Member, which consent shall not be unreasonably withheld, conditioned or delayed or (2) offer the Class D Member the opportunity to purchase such New Securities or participate in any such loan to the Company on a proportionate basis to the Class D Member’s Sharing Percentage at a price per New Security equal to the price per New Security at which such Membership Interests are being issued to the Class A Members or their respective Affiliates or, in the case of such a loan, on the same terms as are agreed by the Class A Member(s) or their Affiliates providing such loan to the Company. (ii) Following the date hereof, if the Company proposes to issue, offer or sell any New Securities to any PersonClass A Member or any Affiliate thereof in conjunction with any merger, consolidation, sale of all or substantially all of the Company’s assets, reorganization or other business combination, then the Company, as directed by the Class A Members, shall either (1) obtain the prior written consent of the Class D Member, which consent shall not be unreasonably withheld, conditioned or delayed, to the issuance, offer or sale of such New Securities, or (2) obtain the prior approval of such issuance, offer or sale by the Board, HOU:3807756.27 HOU:3807756.30 including approval by the majority of the Independent Committee, or (3) issue such New Securities on terms that are “fair,” with such determination of whether the terms of such New Securities are “fair” to be deemed satisfied if (A) at least 40% of such New Securities are purchased by a bona fide third party or (B) an independent financial advisory firm selected by the Board (which financial advisory firm shall not have represented the Company or the Partnership as an underwriter, placement agent or lender within the preceding 24 months) provides an opinion stating that the terms are fair, from a financial point of view, to the Company. (iii) If the Class A Members elect, on behalf of the Company, to provide preemptive rights to the Class D Member in connection with the proposal to issue New Securities pursuant to Section 3.1(g)(i)(2) above, then the Company shall make give prompt written notice (the “New Issue Notice”) of the Company’s proposal to issue, offer or sell New Securities to sell and otherwise comply with the requirements Class D Member. The New Issue Notice shall set forth in this Section 3. Notwithstanding the foregoing, (A) the Company may Transfer New Securities being offered, (B) the price and terms, if any, upon which the Partnership proposes to issue, offer and sell the New Securities and (C) the proposed date of the closing of the issuance of such New Securities, . The Class D Member shall have fifteen (15) days after receipt of the New Issue Notice to submit a written notice (a “New Issue Exercise Notice”) to the Company. The Class D Member shall have the right to elect to purchase up to a number of New Securities equal to the Class D Member’s pro rata share (based on the ratio of the Class D Member’s Sharing Percentage to the aggregate Sharing Percentages of the Class A Members and any right, title or interest therein, without making Class D Member) at the offer to sell price and on the terms set forth in this Section 3 the New Issue Notice. The New Issue Exercise Notice shall set forth the portion of the New Securities that the Class D Member elects to purchase. To the extent that the Class D Member does not elect to purchase its pro rata share of any proposed issuance, the Class A Members shall have the opportunity to increase their participation in connection with (i) an Initial Public Offering, (ii) the such proposed issuance of up to 200,000 shares of Common Stock to management and employees of the Company pursuant to the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides for the issuance of Securities exclusively to directors, officers or employees of the Company, (iii) the issuance of shares of Common Stock pursuant to the Employment Agreement and the Warrants or (iv) an issuance of New Securities in consideration for and upon consummation of (x) a merger with respect to which such amounts as agreed by the holders of Voting Stock immediately prior to such merger beneficially own not less than Class A Members holding a majority of the issued and then-outstanding shares Class A Membership Interests. (iv) For the avoidance of Voting Stock of doubt, nothing in this Agreement is intended to or shall be construed (a) to prohibit the surviving entity Class A Members from pursuing any business opportunity in concert with the Partnership, or (yb) an acquisition of assets require that any Class A Member or stock by the Company so long asPartnership offer to the Class D Member any preemptive or other participatory right in any such business opportunity, in either and the case of Class D Member hereby expressly disclaims any and all rights with respect to any such business opportunity. (xv) Following the date hereof, if at any time EIG and Tailwater fail to collectively hold Holdings LP Voting Control or (y)Holdings GP Voting Control, such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors Class D Member’s rights pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition"3.1(g)(i) and (BSection 3.1(g)(ii) any rights or obligations pursuant shall automatically terminate and will cease to this Section 3 shall terminate upon an Initial Public Offering. For purposes of this Section 3, "Voting Stock" shall mean stock of the Company be of any class or series entitled to vote generally in the election of directors of the Companyforce and effect thereafter.

Preemptive Rights. (a) If the Company proposes to issue or otherwise Transfer any Securities to any Person, then the Company shall make the offer to sell and otherwise comply with the requirements Except as set forth in this Section 3subparagraph (b) below, the Partnership and the General Partner will not issue, sell or otherwise transfer for consideration to the Bain Group or its Affiliates (an "Issuance") at any time prior to an -------- IPO, any Equity Securities or Membership Interests (the "Preemptive Interests") -------------------- unless, at least 30 days and not more than 60 days prior to such issuance, the Partnership or the General Partner, as the case may be, notifies each Securityholder in writing of the Issuance (including the price, the purchasers thereof and the other terms thereof) and grants to each Securityholder, the right (the "Right") to subscribe for and purchase such Preemptive Interests ----- so issued at the same price and on the same terms as issued in the Issuance such that, after giving effect to the Issuance and exercise of the Right, the Preemptive Interests owned by such holder shall represent the same percentage of the outstanding Class A Common Units, Class L Common Units and Membership Interests as were owned by such holder prior to the Issuance on a fully diluted basis, or such lesser amount designated by such holder. The Right may be exercised by such holder at any time by written notice to the Partnership and the General Partner, received by the Partnership and the General Partner within 15 days after receipt by such holder of the notice from the Partnership and the General Partner referred to above. The closing of the purchase and sale pursuant to the exercise of the Right shall occur at least 10 days after the Partnership and the General Partner receive notice of the exercise of the Right and concurrently with the closing of the Issuance. In the event that the consideration received by the Partnership and the General Partner in connection with an Issuance is property other than cash, each Securityholder may, at its election, pay the purchase price for such additional securities in such property or solely in cash. In the event that any such holder elects to pay cash, the amount thereof shall be determined based on the fair value of the consideration received or receivable by the Partnership and/or the General Partner in connection with the Issuance. (b) Notwithstanding the foregoing, the Right shall not apply to issuances of equity securities (A) the Company may Transfer Securitiesor securities convertible into or exchangeable for, and any rightor options to purchase, title or interest thereinsuch units), without making the offer pro rata to sell set forth in this Section 3 in connection with (i) an Initial Public Offering, (ii) the issuance of up to 200,000 shares all holders of Common Stock Units, as a dividend on, subdivision of or other distribution in respect of, the Common Units in accordance with the Partnership's Partnership Agreement, nor issuances of equity securities (or securities convertible into or exchangeable for, or options to management and employees purchase, such membership interests), pro rata to all holders of Membership Interests, as a dividend on, subdivision of or other distribution in respect of the Company pursuant to Membership Interests in accordance with the CompanyGeneral Partner's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides for LLC Agreement. (c) The provisions of this paragraph 6 will terminate upon the issuance of Securities exclusively to directors, officers or employees of the Company, (iii) the issuance of shares of Common Stock pursuant to the Employment Agreement and the Warrants or (iv) an issuance of Securities in consideration for and upon consummation of (x) a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority of the issued and outstanding shares of Voting Stock of the surviving entity or (y) an acquisition of assets or stock by the Company so long as, in either the case of (x) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations pursuant to this Section 3 shall terminate upon an Initial Public Offering. For purposes of this Section 3, "Voting Stock" shall mean stock of the Company of any class or series entitled to vote generally in the election of directors of the CompanyIPO.

Preemptive Rights. (a) Except for (x) issuances of Units to the employees of the Company and its Subsidiaries pursuant to the Option Agreements and pursuant to any other plan or arrangement approved by the Board and (y) the issuance of Units pursuant to Section 2.3(b) of the Purchase Agreement, if the Company authorizes the issuance or sale of any Units or any securities containing options, warrants or rights to acquire any Units. (i) The Company shall first offer to sell to each Securityholder a portion of such Securityholder Securities or other securities equal to the quotient determined by dividing (1) the number of Securityholder Securities held by such holder by (2) the total number of outstanding Securityholder Securities. Each Securityholder shall be entitled to purchase such securities at the most favorable price and on the most favorable price and on the most favorable terms as such securities are to be offered to any other Person. (ii) In order to exercise its purchase rights hereunder, an Securityholder must within 30 days after receipt of written notice from the Company describing in reasonable detail the 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 securities offered to the Securityholders are not fully subscribed by such holders, the remaining securities shall be reoffered by the Company to the Securityholders purchasing their full allotment upon the terms set forth in this Section 6(a), except that such holders must exercise their purchase rights within five days after receipt of such reoffer. (iii) Upon the expiration of the offering periods described above, the Company shall be entitled to sell such securities which the Securityholders have not elected to purchase during the 90 days following such expiration on terms and conditions no more favorable to the purchasers thereof than those offered to such holders. Any securities offered or sold by the Company after such 90-day period must be reoffered to the Securityholders pursuant to the terms of this Section 6(a). (iv) Notwithstanding any other provision of this Section 6, no Securityholder shall have any right to purchase any of the Securityholder Securities it would otherwise have the right to purchase pursuant to Section 6(a) if the members of the Providence Group have advised the Company in writing that no member of the Providence Group .or any of their Affiliates will purchase any of the Securityholder Securities proposed to be issued or sold; provided, however, that if the proposed issuance -------- ------- or sale by the Company is to a private equity (non- strategic) investor, the Primus Group shall have the right to purchase Securityholder Securities under Section 6(a) notwithstanding the fact that no member of the Providence Group or their Affiliates will purchase any of the Securityholder Securities to be issued or sold. (v) The rights of the Securityholders under this Section 6(a) shall terminate upon the consummation of the initial Public Sale by the Company or Luxco. (b) Prior to the Company's issuance or sale of Units or securities containing options, warrants or rights to acquire any Units to the Providence Group if after such issuance the Providence Group would own more than an aggregate of 50 million Units or securities containing options, warrants or rights to acquire any Units, the Company shall: (i) offer to sell to Primus such number of Securityholder Securities or other securities as equals to the number of Units over 50 million Units proposed to be sold to the Providence Group times the -quotient determined by dividing (1) the number of Securityholder Securities held by the Primus Group by (2) the total number of outstanding Securityholder Securities. The Primus Group shall be entitled to purchase such securities at the price and terms as such securities were offered to the Providence Group. (ii) In order to exercise its purchase rights hereunder, the Primus Group must within 30 days after receipt of written notice from the Company describing in reasonable detail the securities being offered, the purchase price thereof, the payment terms and the Primus Group's percentage allotment, deliver a written notice to the Company describing its election hereunder. If all of the securities offered to the Primus Group are not fully subscribed by such holders, the remaining securities shall be reoffered by the Company to the Providence Group, except that the Providence Group must exercise their purchase rights within five days after receipt of such reoffer. (iii) Upon the expiration of the offering periods described above, the Company shall be entitled to sell such securities which the Primus Group have not elected to purchase during the 90 days following such expiration on terms and conditions no more favorable to the Providence Group than those offered to the Primus Group. Any securities offered or sold by the Company after such 90-day period must be reoffered to the Primus Group pursuant to the terms of this Section 6(b). (iv) The rights of the Primus Group under this Section 6(b) shall terminate upon the consummation of the initial Public Sale by the Company or Luxco. (c) If the Company proposes has a right to issue exercise its preemptive rights under Section of the Luxco Securityholders' Agreement, it shall first comply ------- with the following terms and conditions: (i) The Company shall first deliver to each Securityholder a written notice ("Notice of Preemptive Rights") specifying all of the terms, including the Purchase Price for the offered Luxco securities and stating that (1) each Securityholder has the right to elect that the Company shall purchase the offered Luxco securities provided that each Institutional Investor must agree to -------- ---- such purchase or otherwise Transfer any (2) each Securityholder has the right to elect to purchase a portion of such offered Luxco securities equal to the number of Luxco securities which may be purchased pursuant to the Company's exercise of its preemptive rights times the quotient determined by dividing (x) the number of Securityholder Securities held by such holder by (y) the total number of outstanding Securityholder Securities (with respect to each Securityholder, its "Pro Rata Amount"). Each Institutional Investor shall be entitled to purchase such securities at the most favorable price and on the most favorable terms as such securities are to be offered to any Personother Securityholder. Each Securityholder must give the Company written notice of its election under this Section 6(c)(i)(l) or (2) within 10 days of its receipt of the Notice of Preemptive Rights, unless a shorter period is specified in the Notice of Preemptive Rights. (ii) If each Institutional Investor elects to have the Company purchase the offered Luxco securities pursuant to Section 6(c)(i)(l) above, then the Company shall make purchase such securities on the offer terms set forth in the Notice of Preemptive Rights . (iii) If each Institutional Investor does not elect to sell and otherwise comply with have the requirements Company purchase the offered Luxco securities pursuant to Section 6(c)(i)( 1) above, then each Securityholder shall have the right to purchase its Pro Rata Amount of the offered Luxco securities. If all of the securities offered to the Securityholders are not fully subscribed by such holders, the remaining securities shall be reoffered by the Company to the Securityholders purchasing their full allotment upon the terms set forth in this Section 3. Notwithstanding the foregoing6, (A) the Company may Transfer Securities, and any right, title or interest therein, without making the offer to sell set forth in this Section 3 in connection with (i) an Initial Public Offering, (ii) the issuance except that such --------- holders must exercise their purchase rights within five days after receipt of up to 200,000 shares of Common Stock to management and employees of the Company pursuant to the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides for the issuance of Securities exclusively to directors, officers or employees of the Company, (iii) the issuance of shares of Common Stock pursuant to the Employment Agreement and the Warrants or such reoffer. (iv) an Notwithstanding any other provision of this Section 6, --------- no Securityholder shall have any right to purchase any of the offered Luxco securities it would otherwise have the right to purchase pursuant to Section 6(c) if the ------------ members of the Providence Group have advised the Company in writing that no member of the Providence Group or any of their Affiliates will purchase any of the offered Luxco securities proposed to be issued or sold; provided, however, that if the proposed issuance or -------- ------- sale by Luxco is to a private equity (non-strategic) investor, the Primus Group shall have the right to purchase the offered Luxco securities pursuant to Section 6(c) notwithstanding the fact that no member of Securities in consideration for the Providence Group or their Affiliates will purchase any of the offered Luxco securities proposed to be issued or sold and the Providence Group shall cause the Company to take such actions so that the Primus Group may exercise such right. (v) The rights of the Securityholders under this Section ------- 6 (c) shall terminate upon the consummation of (x) a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority of the issued and outstanding shares of Voting Stock of the surviving entity or (y) an acquisition of assets or stock ---- initial Public Sale by the Company so long as, in either or Luxco. (vi) The Company shall not assign all or any portion of its rights under Section 6 of the case of (x) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors Luxco Securityholders' Agreement unless pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations pursuant to an in accordance with this Section 3 shall terminate upon an Initial Public Offering. For purposes of this Section 3, "Voting Stock" shall mean stock of the Company of any class or series entitled to vote generally in the election of directors of the Company6(c).

Preemptive Rights. (a) If Except for issuances of: (i) Units set forth on Schedule A as of the Company date hereof (including, for the avoidance of doubt, any Capital Contributions made after the date hereof in respect of Class A Units or Class B Units set forth on Schedule A hereto); (ii) Class A Units, Class B Units and/or Class C Units issued pursuant to Section 3.3(a) or Section 3.3(c) hereof, or Class D Units issued pursuant to Section 3.9; (iii) Equity Securities upon exercise, conversion or exchange of debt securities or Equity Securities which were issued in compliance with (including if such issuances were exempt from) this Section 3.4 (to the extent such issuance is effected pursuant to the original terms of any such debt securities or other Equity Securities); (iv) Equity Securities to effectuate a transaction in accordance with Section 15.7 of this Agreement; (v) Equity Securities in connection with a restructuring (other than such securities received in return for new capital invested in connection with such restructuring); or (vi) Units in connection with any Unit split or any subdivision of Units, Unit dividend or similar recapitalization of the LLC or any of its Subsidiaries; if the LLC proposes to issue or otherwise Transfer sell any Equity Securities, the LLC shall offer to each Qualified Unitholder holding Class C Units (other than Excluded Unitholders) by written notice from the LLC (describing in reasonable detail the Equity Securities being offered, the purchase price thereof, the payment terms and such Qualified Unitholder’s Proportional Share) (the “Participation Notice”) the right to purchase a portion of such Equity Securities being purchased equal to the quotient obtained by dividing (1) the aggregate number of Class C Units held by such Qualified Unitholder, by (2) the aggregate number of Class C Units held by all Qualified Unitholders other than Excluded Unitholders (such Qualified Unitholder’s “Proportional Share”); provided that no Qualified Unitholder who either (x) would be entitled to purchase less than $10,000 of such Equity Securities after determination of such holder’s Proportional Share, (y) is not an “accredited investor” as such term is defined in the Securities Act and the rules and regulations promulgated thereunder or (z) at any time has breached or is in breach of any noncompetition, nonsolicitation, confidentiality or similar restrictive provisions to which such Qualified Unitholder is bound pursuant to a Senior Management Agreement, other Equity Agreement or other agreement between such Qualified Unitholder and the LLC or any of its Subsidiaries (any such Qualified Unitholder, an “Excluded Unitholder”) shall have any rights under this Section 3.4. Each such Qualified Unitholder shall be entitled to purchase all or any portion of its Proportional Share of such offered Equity Securities at the same price and on the same terms as such Equity Securities are to be offered to any other Person; provided that if all Persons entitled to purchase or receive any class, then group or series of such Equity Securities are required to also purchase other securities of the Company LLC, the Qualified Unitholders exercising their rights pursuant to this Section 3.4 shall make also be required to purchase the offer same strip of securities (on the same terms and conditions) that such other Persons are required to purchase. If all of the Equity Securities offered to the Qualified Unitholders hereunder are not fully subscribed by such Qualified Unitholders, the unsubscribed Equity Securities shall be allocated to the Qualified Unitholders purchasing their full allotment and indicating in their notice to the LLC pursuant to Section 3.4(b) a desire to acquire any Equity Securities that are available because of under-subscription. (b) In order to exercise its purchase rights hereunder, a Qualified Unitholder must within fifteen (15) calendar days of the date of the Participation Notice deliver a written notice to the LLC irrevocably exercising its rights to purchase such offered Equity Securities hereunder (including the extent, subject to any maximum dollar amounts or number of Equity Securities specified therein, to which such Qualified Unitholder elects to acquire any Equity Securities in excess of its Proportional Share available if the Equity Securities offered to Qualified Unitholders are not fully subscribed by such Qualified Unitholders based on their respective Proportional Shares). (c) Upon the expiration of the offering periods described above, the LLC shall be entitled to sell such Equity Securities which such Qualified Unitholders have not elected to purchase during the 180 calendar days following such expiration at a price and otherwise comply with on payment terms not less than the requirements set forth in this Section 3. Notwithstanding price and payment terms offered to the foregoing, (A) the Company may Transfer SecuritiesQualified Unitholders, and any right, title on other terms and conditions not more favorable in the aggregate than such other terms and conditions were offered to the Qualified Unitholders. Any securities offered or interest therein, without making sold by the offer LLC after such 180 calendar day period must be reoffered to sell set forth in this Section 3 in connection with (i) an Initial Public Offering, (ii) the issuance of up to 200,000 shares of Common Stock to management and employees of the Company such Qualified Unitholders pursuant to the Company's 1997 terms of this Section 3.4. (d) So long as the Qualified Unitholders are not disadvantaged (e.g., unable to participate in a Distribution or payment in respect of Equity and Performance Incentive Plan or Securities to be acquired hereunder), in lieu of offering any other incentive plan which provides for the issuance of Equity Securities exclusively to directors, officers or employees of the Company, (iii) the issuance of shares of Common Stock pursuant to the Employment Agreement and the Warrants or (iv) an issuance of Securities in consideration for and upon consummation of (x) a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority of the issued and outstanding shares of Voting Stock of the surviving entity or (y) an acquisition of assets or stock by the Company so long as, in either the case of (x) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, Qualified Unitholders at the time such merger is consummatedEquity Securities are offered to other Persons, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and LLC may comply with the approval provisions of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations pursuant to this Section 3 shall terminate upon 3.4 by making an Initial Public Offeringoffer to sell to the Qualified Unitholders (other than Excluded Unitholders) their Proportional Share of such securities promptly after a sale to such other Persons is effected. For In such event, for all purposes of this Section 33.4, "Voting Stock" each Qualified Unitholder’s Proportional Share shall mean stock be determined taking into consideration the actual number of Equity Securities sold to any other Person so as to achieve the same economic effect as if such offer would have been made prior to such sale. (e) The rights of the Company of any class or series entitled to vote generally in Unitholders under this Section 3.4 shall terminate upon the election of directors consummation of the Companyfirst to occur of (i) a Qualified Public Offering or (ii) an Approved Sale.

Preemptive Rights. Until such time as the Xxxxxxxxx Family collectively holds less than twenty percent (a20%) If of the outstanding equity securities of the Company on a fully-diluted basis, and subject to the terms and conditions specified in this Section 3, each time the Company proposes to issue offer any shares, or otherwise Transfer any Securities securities convertible into, or exchangeable or exercisable for shares, of its capital stock in a private placement (a "Private Placement") to any Personor all of the original purchasers of the Company's former Series A Convertible Preferred Stock issued on November 21, then 1996 or their respective affiliates (the "Institutional Holders"), which preferred stock was converted into shares of Company common stock (the "Common Stock") at the time of the Company's initial public offering, the Company shall make an offering of such securities to the offer to sell and otherwise comply Xxxxxxxxx Family in accordance with the requirements set forth in this Section 3. Notwithstanding following provisions: (a) The Company shall deliver a notice ("Notice") to Xxxxxxx Xxxxxxxxx, as representative of the foregoingXxxxxxxxx Family, (A) the Company may Transfer Securities, and any right, title or interest therein, without making the offer to sell set forth in this Section 3 in connection with stating (i) an Initial Public Offeringthe Company's bona fide intention to offer such securities, (ii) the issuance number of up such securities to 200,000 shares of Common Stock to management be offered, and employees of the Company pursuant to the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides for the issuance of Securities exclusively to directors, officers or employees of the Company, (iii) the issuance price and terms, if any, upon which it proposes to offer such securities. (b) By written notification received by the Company within fifteen (15) calendar days after receipt of the Notice, the Xxxxxxxxx Family may elect to collectively purchase or obtain, at the price and on the terms specified in the Notice, up to that portion of the securities to be purchased collectively by the Institutional Investors which equals the proportion that the number of shares of Common Stock pursuant then held by the Xxxxxxxxx Family bears to the Employment Agreement total number of shares of Common Stock then collectively held by those Institutional Investors purchasing securities in the Private Placement and the Warrants or Xxxxxxxxx Family. (ivc) an issuance of Securities If all securities referred to in consideration for and upon consummation of (x) a merger with respect to the Notice which the holders of Voting Stock immediately prior Xxxxxxxxx Family is entitled to such merger beneficially own not less than a majority of the issued and outstanding shares of Voting Stock of the surviving entity or (y) an acquisition of assets or stock by the Company so long as, in either the case of (x) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors obtain pursuant to Section 4 hereof and 3(b) are not elected to be purchased by the approval Xxxxxxxxx Family, the Company may, during the sixty (60) day period following the expiration of the transaction by notice provision provided in Section 3(b) hereof, offer the remaining unsubscribed portion of such director 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 required pursuant to Section 5 hereof not consummated within sixty (a "Qualifying Acquisition"60) and (B) any rights or obligations pursuant to this Section 3 shall terminate upon an Initial Public Offering. For purposes of this Section 3, "Voting Stock" shall mean stock days of the Company of any class or series entitled execution thereof, the right provided hereunder shall be deemed to vote generally be revived and such securities shall not be offered unless first re- offered to the Xxxxxxxxx Family in the election of directors of the Companyaccordance herewith.

Preemptive Rights. (a) If If, at any time prior to a Qualified Offering, the Company proposes to issue or otherwise Transfer any Securities securities to any Personperson or entity (other than pro rata issuances of securities to all holders of common stock, then issuances of Options to employees and issuances of common stock pursuant to Options and Convertible Securities described on schedule 3.2.7 to the Company shall make the offer to sell and otherwise comply with the requirements set forth in this Section 3. Notwithstanding the foregoingSeries B Purchase Agreement) (a "Proposed Issuance"), (A) the Company may Transfer Securities, and any right, title or interest therein, without making the offer to sell set forth in this Section 3 in connection with (i) an Initial Public Offering, (ii) the issuance each holder of up to 200,000 shares of Common Preferred Stock or common stock issued upon conversion thereof shall have the right (which the holder may exercise in whole or in part) to management purchase, upon the same terms, a proportionate quantity of those securities in the proportion that the aggregate number of shares of common stock (assuming exercise of all Warrants (as defined in the Series A Investment Agreement and employees that certain Note Purchase Agreement (the "Note Purchase Agreement") dated as of June 28, 1994 relating to the Company's 15% Convertible Notes due December 31, 1994) and Warrants (as defined in the Series B Purchase Agreement) and conversion of all Preferred Stock) then beneficially owned (as that term is used in the rules and regulations under the Securities Exchange Act of 1934) and that were acquired under either the Series A Investment Agreement, the Series B Purchase Agreement or the Exchange Agreement by that party bears to the total number of shares of common stock (assuming exercise of all Warrants (as defined in the Series B Purchase Agreement, Series A Investment Agreement and Note Purchase Agreement)) and conversion of all Preferred Stock) of the Company then beneficially owned and that were acquired under such Investment Agreement, Exchange Agreement and Purchase Agreement by all holders of shares of Preferred Stock or common stock issued upon conversion thereof. The Company shall give notice to each holder setting forth the identity of the proposed purchaser and the time, which shall not be fewer than 45 days and not more than 60 days, within which, and the terms upon which, each holder may elect, by written notice given to the Company in accordance with the Company's notice to each holder, to purchase the securities, which terms shall be the same as the terms upon which the proposed purchaser may purchase the securities. If there is any change in any terms of the Proposed Issuance, the holders shall have no further rights with respect to that Proposed Issuance, and the provisions of this section 8 shall again apply to the Proposed Issuance, as so changed, as if the Proposed Issuance, as so changed, were being proposed initially as the Proposed Issuance. If any holder (a "Shortfall Purchaser") wishes to purchase a quantity of securities greater than the holder's proportionate quantity and any other holder wishes to purchase fewer than that holder's proportionate quantity of securities (a "Shortfall"), the Shortfall Purchaser may (in accordance with an election that may be made pursuant to the Company's 1997 Equity and Performance Incentive Plan notice to each holder) elect to purchase any or any other incentive plan which provides for the issuance of Securities exclusively to directors, officers or employees all of the Company, (iii) aggregate amount of all the issuance Shortfalls in the proportion that the amount of Shortfalls specified by the Shortfall Purchaser in the election to purchase securities bears to the aggregate amount of all the Shortfalls specified by all Shortfall Purchasers in all the election to purchase securities. Any securities not purchased by the holders of shares of Common Preferred Stock pursuant under this section 8 may thereafter be sold to the Employment Agreement and proposed purchaser at any time within 90 days after the Warrants expiration of that 45- or (iv) an issuance of Securities in consideration for and 60-day period on the same terms as those upon consummation of (x) a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority of the issued and outstanding shares of Voting Preferred Stock of the surviving entity or (y) an acquisition of assets or stock by the Company so long as, in either the case of (x) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations pursuant to this Section 3 shall terminate upon an Initial Public Offering. For purposes of this Section 3, "Voting Stock" shall mean stock of the Company of any class or series were entitled to vote generally in purchase the election of directors of the Companysecurities.

Preemptive Rights. (a) If Subject to Section 2.6(e), if the Company at any time or from time to time proposes to issue any Qualified Securities for cash (including any issuance of Qualified Securities that results, through a series of one or otherwise Transfer any more related transactions, in the Company receiving, directly or indirectly, cash for such issuance), the Company shall, no later than ten Business Days prior to the proposed consummation of such issuance give written notice thereof to Investor. Such notice shall contain the amount of Qualified Securities to be issued, the purchase price in respect thereof and any Personother terms the Company determines are pertinent regarding the proposed issuance and shall also contain an offer to Investor to purchase, then at the same purchase price per Qualified Security at which the Company initially proposed to issue such Qualified Securities, that number of Qualified Securities (the “Preemptive Securities”) equal to the product of Investor’s Proportionate Interest multiplied by the total number of Qualified Securities being offered; provided, however, that the number of Preemptive Securities to be offered to Investor pursuant to this Section 2.6(a) shall be reduced by (i) the number of Qualified Securities that Investor would otherwise have the right to purchase in connection with such issuance pursuant to applicable statutory preemptive rights (after giving effect to any waiver, in whole or in part, of such statutory preemptive rights by the Company’s shareholders, to the extent that such waiver is binding on Investor) or any other contractual preemptive rights that Investor may enforce against the Company and (ii) the number of ADSs issued to Investor pursuant to Section 2.7 in respect of such issuance (if applicable). At any time within ten Business Days after receipt of the notice provided for in the previous sentence Investor may accept the offer made to it in such notice, by furnishing notice thereof to the Company. Failure by Investor to provide such a notice of acceptance within such ten-Business Day period shall be deemed to constitute an election by Investor not to exercise its preemptive right. (b) If at the end of the ten-Business Day period referred to in Section 2.6(a) less than all of the Preemptive Securities are accepted for purchase by Investor pursuant to Section 2.6(a), the Company shall make the offer be entitled to sell and otherwise comply proceed with the requirements issuance of the Preemptive Securities that Investor did not accept for purchase pursuant to Section 2.6(a), on terms not more favorable than (including as to form of consideration), and for a purchase price equal to or higher than, that set forth in the notices sent to Investor pursuant to Section 2.6(a). (c) The closing of the purchase of Preemptive Securities accepted for purchase pursuant to Section 2.6(a) shall take place as soon as reasonably practicable after receipt of the applicable acceptance notice and such purchase shall be at the purchase price specified in the notice sent to Investor pursuant to Section 2.6(a) paid by wire transfer of immediately available funds or pursuant to the same terms and conditions offered to the proposed buyer(s) of Qualified Securities set forth in the initial notice to Investor, in either case in the appropriate amount or other consideration (or if the other consideration is unique, a reasonable monetary equivalent of such consideration) as indicated in such notice against delivery of certificates or other instruments representing the Preemptive Securities so purchased. (d) Investor may at its discretion by written notice to the Company waive its entitlement under this Section 3. Notwithstanding 2.6 in whole or in part at any time. (e) Investor’s entitlement under this Section 2.6 shall not be available (i) at any time that Investor (together with the foregoingPermitted Transferees) does not Beneficially Own at least 10.0% of the outstanding Company Voting Securities or (ii) in respect of any issuance of Qualified Securities, which (after giving effect to the exercise, exchange or conversion of such Qualified Securities, if applicable), together with all such issuances made pursuant to this clause (ii) in any 12-month period, would not exceed 10.0% of the outstanding Company Voting Securities (as of (A) the Company may Transfer SecuritiesEffective Date, and any right, title or interest therein, without making the offer to sell set forth in this Section 3 in connection with (i) an Initial Public Offering, (ii) the issuance of up to 200,000 shares of Common Stock to management and employees of the Company pursuant to the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides for the issuance of Securities exclusively to directors, officers or employees of the Company, (iii) the issuance of shares of Common Stock pursuant to the Employment Agreement and the Warrants or (iv) an issuance of Securities in consideration for and upon consummation of (x) a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority of the issued and outstanding shares of Voting Stock of the surviving entity initial 12-month period or (yB) an acquisition the first day of assets any subsequent 12-month period) (after giving effect to the exercise, exchange or stock conversion of any other securities, warrants, options or rights of any nature (whether or not issued by the Company so long asCompany) that are convertible into or exchangeable or exercisable for, or otherwise give the holder thereof any rights in either the case respect of (x) whether or (ynot the right to convert, exchange or exercise is subject to the passage of time, contingencies or contractual restrictions or any combination thereof), such Company Voting Securities and the effect of any stock split, reverse stock split, re-classification, repurchase or other similar transaction has been affecting the Company Voting Securities). (f) Notwithstanding anything to the contrary in this Agreement, Investor’s rights under this Section 2.6 shall not be triggered by any grant of equity or equity-based awards (or the exercise of any equity-based awards) pursuant to one or more stock option plans approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations pursuant to this Section 3 shall terminate upon an Initial Public Offering. For purposes of this Section 3, "Voting Stock" shall mean stock of the Company of any class or series entitled to vote generally in the election of directors of the CompanyBoard.

Preemptive Rights. (a) If the Company proposes to issue issue, grant or otherwise Transfer any Securities to any Personsell Common Stock or Rights, then the Company shall make first give to the offer Purchaser (so long as the Purchaser owns at least 500,000 Shares) and any transferee of Shares from the Purchaser then owning at least 500,000 Shares (appropriately adjusted for any stock split, reverse stock split or stock dividend), except for any transferee that acquires such Shares in a public offering registered under the Securities Act or in a transaction on the open market effected pursuant to sell Rule 144 under the Securities Act, (each a "Securityholder") written notice setting forth in reasonable detail the price and otherwise comply with other terms on which such shares of Common Stock or Rights are proposed to be issued or sold, the requirements terms of any such Rights and the amount thereof proposed to be issued, granted or sold. Each Securityholder shall thereafter have the preemptive right, exercisable by written notice to the Company no later than twenty (20) days after the Company's notice is given, to purchase the number of such shares of Common Stock or Rights set forth in the Securityholder's notice (but in no event more than the Securityholder's Proportionate Share (as defined below) thereof, as of the date of the Company's notice), at the price and on the other terms set forth in the Company's notice. Any notice by a Securityholder exercising the right to purchase shares of Common Stock or Rights pursuant to this Section 5.4 shall constitute an irrevocable commitment to purchase from the Company the shares of Common Stock or Rights specified in such notice, subject to the maximum set forth in the preceding sentence. If all the Securityholders exercise their preemptive rights set forth in this Section 3. Notwithstanding 5.4(a) to the foregoingfull extent of their Proportionate Share or if for any other reason the Company shall not issue, grant or sell shares of Common Stock or Rights to persons other than Securityholders, then the closing of the purchase of shares of Common Stock or Rights by Securityholders shall take place on such date, no less than ten (A10) and no more than thirty (30) days after the expiration of the 20-day period referred to above, as the Company may Transfer Securitiesselect, and any rightthe Company shall notify the Securityholders of such closing at least seven (7) days prior thereto. If all persons entitled thereto do not exercise their preemptive rights to the full extent of their Proportionate Share and, title as contemplated by Section 5.4(b), the Company shall issue, grant or interest thereinsell shares of Common Stock or Rights to persons other than Securityholders, without making then the offer closing of the purchase of shares of Common Stock or Rights shall take place at the same time as the closing of such issuance, grant or sale. (b) If all persons entitled thereto do not exercise their preemptive rights to the full extent of their Proportionate Share, the Company shall use its good faith and commercially reasonable efforts to issue, grant or sell the remaining subject shares of Common Stock or Rights on the terms set forth in its notice to Securityholders, unless the Company is advised by its financial advisors that the remaining number or amount is too small to be reasonably sold. From the expiration of the 20-day period first referred to in Section 5.4(a) and for a period of 90 days thereafter, the Company may offer, issue, grant and sell to any person or entity shares of Common Stock or Rights having the terms set forth in the Company's notice relating to such shares of Common Stock or Rights at a price and on other terms no less favorable to the Company, and including no less cash, than those set forth in such notice (without deduction for reasonable underwriting, sales agency and similar fees payable in connection therewith); provided, however, that the Company may not issue, grant or sell shares of Common Stock or Rights in an amount greater than the amount set forth in such notice minus the amount purchased or committed to be purchased by Securityholders rights. (c) The provisions of this Section 3 in connection with 5.4 shall not apply to the following issuances of securities: (i) pursuant to an Initial Public Offeringapproved stock option plan, stock purchase plan, or similar benefit program or agreement for the benefit of employees of, or consultants to, the Company, where the primary purpose is not to raise additional equity capital for the Company, (ii) the issuance of up to 200,000 shares of Rights, or Common Stock issuable upon exercise of Rights, granted to management and employees of the Company pursuant to retailers or lessors engaged in bona fide business transactions with the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides , where the primary purpose is not to raise additional equity capital for the issuance of Securities exclusively to directors, officers or employees of the Company, (iii) as direct consideration for the issuance acquisition by the Company of another business entity or the merger of any business entity with or into the Company, (iv) in connection with a stock dividend, (v) upon the exercise of warrants or options, or upon the conversion of convertible securities, outstanding on the date hereof or as to which Securityholders have been previously offered the right to participate as contemplated hereby or (vi) in an underwritten public offering registered under the Securities Act if the managing underwriters advise the Securityholders in writing that the purchase of shares of Common Stock pursuant to the Employment Agreement preemptive rights afforded by this Section 5.4 would materially and adversely affect the Warrants or (iv) an issuance of Securities in consideration for and upon consummation of (x) a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority marketing of the issued and outstanding shares of Voting Stock of the surviving entity or offering. (yd) an acquisition of assets or stock by the Company so long as, in either the case of (x) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations pursuant to this Section 3 shall terminate upon an Initial Public Offering. For purposes of this Section 35.4, "Voting Stock" the following terms shall mean stock of have the Company of any class or series entitled to vote generally in the election of directors of the Company.corresponding meanings set forth herein:

Preemptive Rights. (a) If the Company proposes to issue issue, grant or otherwise Transfer any Securities to any Personsell common stock, then preferred stock, other equity securities or Rights, the Company shall make first give to each Purchaser and any transferee of Shares from the offer Purchaser (each a "SECURITYHOLDER") written notice setting forth in reasonable detail the price and other terms on which such equity securities or Rights are proposed to sell be issued, granted or sold, the terms of any such Rights and otherwise comply with the requirements amount thereof proposed to be issued, granted or sold. Each Securityholder shall thereafter have the preemptive right, exercisable by written notice to the Company no later than 15 days after the Company's notice is given, to purchase the lesser of (i) such Securityholder's Proportionate Share of the number of such equity securities or Rights that are proposed to be issued, granted or sold and (ii) the product of: (x) the number of such equity securities or Rights that are proposed to be issued, granted or sold minus the number of such equity securities or Rights purchased by the parties to the Stockholders' Agreement pursuant to their respective preemptive rights contained in Sections 4.2 and 4.3 thereof and (y) a fraction equal to the number of Shares held by such Securityholder as of the date notice delivered pursuant to this section divided by the total number of issued and outstanding Shares held by all Securityholders. Any such purchase by any Securityholder shall be at the price and on the other terms set forth in the Company's notice. Any notice by a Securityholder exercising the right to purchase equity securities or Rights pursuant to this Section 5.1 shall constitute an irrevocable commitment to purchase from the Company the equity securities or Rights specified in such notice, subject to the maximum set forth in this paragraph. If the Securityholders exercise their preemptive rights set forth in this Section 3. Notwithstanding 5.1(a) to the foregoing, (A) the Company may Transfer Securities, and any right, title or interest therein, without making the offer to sell full extent of their rights set forth in this Section 3 5.1(a), then the closing of the purchase of equity securities or Rights by Securityholders shall take place on such date, no less than ten and no more than 60 days after the expiration of the 15-day period referred to above, as the Company may select, and the Company shall notify the Securityholders of such closing at least seven days prior thereto. If all Persons entitled thereto do not exercise their preemptive rights to the full extent of such preemptive rights and, as contemplated by Section 5.1(b), the Company shall issue, grant or sell equity securities or Rights to persons other than Securityholders and the parties to the Stockholders Agreement, then the closing of the purchase of such equity securities or Rights shall take place at the same time as the closing of such issuance, grant or sale. (b) The Company shall use its good faith and commercially reasonable efforts to issue, grant or sell the remaining subject equity securities or Rights on the terms set forth in its notice to Securityholders, unless the Company is advised by its financial advisors that the remaining number or amount is too small to be reasonably sold. From the expiration of the 15-day period first referred to in Section 5.1(a) and for a period of 90 days thereafter, the Company may offer, issue, grant and sell to any person or entity equity securities or Rights having the terms set forth in the Company's notice relating to such equity securities or Rights at a price and on other terms no less favorable to the Company, and including no less cash, than those set forth in such notice (without deduction for reasonable underwriting, sales agency and similar fees payable in connection with therewith); provided, however, that the Company may not issue, grant or sell equity securities or Rights in an amount greater than the amount set forth in such notice minus the amount purchased or committed to be purchased by Securityholders and the parties to the Stockholders Agreement pursuant to Sections 4.2 and 4.3 thereof. (c) The rights set forth in this Section 5.1 shall terminate upon successful consummation of a firm commitment underwritten initial public offering of Common Stock by the Company pursuant to an effective registration statement under the Securities Act. (d) The provisions of this Section 5.1 shall not apply to the following issuances of securities: (i) pursuant to an Initial Public Offeringapproved employee stock option plan, stock purchase plan, or similar benefit program or agreement, where the primary purpose is not to raise additional equity capital for the Company, (ii) as direct consideration for the issuance acquisition by the Company of up to 200,000 shares another business entity or the merger of Common Stock to management and employees any business entity with or into the Company, in each case provided that the transaction is approved by the vote of a majority of the Company pursuant to the Company's 1997 Equity and Performance Incentive Plan outstanding Shares, (iii) in connection with a stock split or any other incentive plan which provides for the issuance of Securities exclusively to directors, officers dividend or employees a recapitalization or reorganization of the Company, (iii) in each case provided that the issuance transaction is approved by the vote of shares of Common Stock pursuant to the Employment Agreement and the Warrants or (iv) an issuance of Securities in consideration for and upon consummation of (x) a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority of the issued and outstanding shares Shares, (iv) upon the exercise of Voting Stock warrants or options, or upon the conversion of convertible securities, outstanding on the surviving entity date hereof or (y) an acquisition of assets or stock by the Company so long as, in either the case of (x) or (y), such transaction has as to which Securityholders have been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has previously offered the right to nominate directors pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof participate as contemplated hereby or, (a "Qualifying Acquisition"v) and (B) any rights or obligations securities issued pursuant to this Section 3 shall terminate upon Agreement at any Closing, (vi) securities issued in an Initial Public Offering. For purposes underwritten public offering registered under the Securities Act, provided that such offering is approved by a vote of this Section 3, "Voting Stock" shall mean stock a majority of the Company of any class or series entitled to vote generally in the election of directors of the Companyoutstanding Shares.

Preemptive Rights. (a) If If, any time during the Company proposes to issue or otherwise Transfer any Securities to any Personthree year period commencing on the date of this Agreement, then the Company shall make issue any Common Stock or any debt or equity securities convertible into or exchangeable for Common Stock ("Additional Securities"), then, subject to the last sentence of this paragraph, the Company shall offer to sell MCI an opportunity to purchase from the Company, at the same price, for the same consideration, and otherwise comply with on the requirements set forth same terms and subject to the same conditions as are applicable to purchases by others, such number of Additional Securities as are necessary for MCI to maintain its then-current "percentage equity ownership interest" in this Section 3the Company. Notwithstanding MCI shall have the foregoingright, (A) but not the obligation, to accept any such offer in whole or in part. Upon commencement of such issuance, the Company may Transfer shall present to MCI in writing the terms and conditions of such issuance, along with a calculation showing the number of Additional Securities to which MCI is entitled to subscribe. Upon receipt of such offer, MCI will have fifteen (15) calendar days in which to exercise its rights under this Article II, by written notice to the Company. If MCI does not exercise its rights with respect to such issuance within such fifteen (15) days, then those rights will expire with respect to that issuance of Additional Securities, and any right, title or interest therein, without making the offer . This Article II shall not apply to sell set forth in this Section 3 in connection with (i) an Initial Public Offering, (ii) the any issuance of up to 200,000 shares of Common Stock to management and employees of the Company pursuant to the Company's 1997 Equity and Performance Incentive Plan equity participation plans, or any other incentive plan which provides for (ii) the issuance exercise of Securities exclusively to directorsone or more warrants, officers options, conversion rights, exchange rights, or employees similar rights (A) existing as of the Companydate of this Agreement, (iiiB) the issuance of shares of Common Stock issued pursuant to the Employment Company's equity participation plans, (C) issued pursuant to agreements or rights existing as of the date of this Agreement and the Warrants or (ivD) an issuance associated with any Additional Securities. For the purposes of Securities in consideration for and upon consummation of (x) a merger with respect to which this Agreement the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority phrase "percentage equity ownership interest" means the percentage of the issued and outstanding shares of Voting Common Stock of the surviving entity or (y) an acquisition of assets or stock represented by the Company so long as, in either the case of (x) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof Subscription Shares and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations securities purchased pursuant to this Section 3 shall terminate upon an Initial Public Offering. For purposes Article, assuming the full conversion, exchange and exercise of this Section 3, "Voting Stock" shall mean stock all outstanding securities of the Company of any class that are directly or series entitled to vote generally in the election of directors of the Companyindirectly convertible into, exchangeable for or exercisable for Common Stock.

Preemptive Rights. (a) If the Company proposes to issue issue, grant or otherwise Transfer any Securities to any Personsell Common Stock or Rights, then the Company shall make first give to the offer Purchaser (so long as the Purchaser owns at least 500,000 Shares) and any transferee of Shares from the Purchaser then owning at least 500,000 Shares (appropriately adjusted for any stock split, reverse stock split or stock dividend), except for any transferee that acquires such Shares in a public offering registered under the Securities Act or in a transaction on the open market effected pursuant to sell Rule 144 under the Securities Act, (each a "Securityholder") written notice setting forth in reasonable detail the price and otherwise comply with other terms on which such shares of Common Stock or Rights are proposed to be issued or sold, the requirements terms of any such Rights and the amount thereof proposed to be issued, granted or sold. Each Securityholder shall thereafter have the preemptive right, exercisable by written notice to the Company no later than twenty (20) days after the Company's notice is given, to purchase the number of such shares of Common Stock or Rights set forth in the Securityholder's notice (but in no event more than the Securityholder's Proportionate Share (as defined below) thereof, as of the date of the Company's notice), at the price and on the other terms set forth in the Company's notice. Any notice by a Securityholder exercising the right to purchase shares of Common Stock or Rights pursuant to this Section 5.4 shall constitute an irrevocable commitment to purchase from the Company the shares of Common Stock or Rights specified in such notice, subject to the maximum set forth in the preceding sentence. If all the Securityholders exercise their preemptive rights set forth in this Section 3. Notwithstanding 5.4(a) to the foregoingfull extent of their Proportionate Share or if for any other reason the Company shall not issue, grant or sell shares of Common Stock or Rights to persons other than Securityholders, then the closing of the purchase of shares of Common Stock or Rights by Securityholders shall take place on such date, no less than ten (A10) and no more than thirty (30) days after the expiration of the 20-day period referred to above, as the Company may Transfer Securitiesselect, and any rightthe Company shall notify the Securityholders of such closing at least seven (7) days prior thereto. If all persons entitled thereto do not exercise their preemptive rights to the full extent of their Proportionate Share and, title as contemplated by Section 5.4(b), the Company shall issue, grant or interest thereinsell shares of Common Stock or Rights to persons other than Securityholders, without making then the offer closing of the purchase of shares of Common Stock or Rights shall take place at the same time as the closing of such issuance, grant or sale. (b) If all persons entitled thereto do not exercise their preemptive rights to the full extent of their Proportionate Share, the Company shall use its good faith and commercially reasonable efforts to issue, grant or sell the remaining subject shares of Common Stock or Rights on the terms set forth in its notice to Securityholders, unless the Company is advised by its financial advisors that the remaining number or amount is too small to be reasonably sold. From the expiration of the 20-day period first referred to in Section 5.4(a) and for a period of 90 days thereafter, the Company may offer, issue, grant and sell to any person or entity shares of Common Stock or Rights having the terms set forth in the Company's notice relating to such shares of Common Stock or Rights at a price and on other terms no less favorable to the Company, and including no less cash, than those set forth in such notice (without deduction for reasonable underwriting, sales agency and similar fees payable in connection therewith); provided, however, that the Company may not -------- ------- issue, grant or sell shares of Common Stock or Rights in an amount greater than the amount set forth in such notice minus the amount purchased or committed to be purchased by Securityholders rights. (c) The provisions of this Section 3 in connection with 5.4 shall not apply to the following issuances of securities: (i) pursuant to an Initial Public Offeringapproved stock option plan, stock purchase plan, or similar benefit program or agreement for the benefit of employees of, or consultants to, the Company, where the primary purpose is not to raise additional equity capital for the Company, (ii) the issuance of up to 200,000 shares of Rights, or Common Stock issuable upon exercise of Rights, granted to management and employees of retailers or lessors engaged in bona fide business transactions with the Company pursuant ---- ---- Company, where the primary purpose is not to the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides raise additional equity capital for the issuance of Securities exclusively to directors, officers or employees of the Company, (iii) as direct consideration for the issuance acquisition by the Company of another business entity or the merger of any business entity with or into the Company, (iv) in connection with a stock dividend, (v) upon the exercise of warrants or options, or upon the conversion of convertible securities, outstanding on the date hereof or as to which Securityholders have been previously offered the right to participate as contemplated hereby or (vi) in an underwritten public offering registered under the Securities Act if the managing underwriters advise the Securityholders in writing that the purchase of shares of Common Stock pursuant to the Employment Agreement preemptive rights afforded by this Section 5.4 would materially and adversely affect the Warrants or (iv) an issuance of Securities in consideration for and upon consummation of (x) a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority marketing of the issued and outstanding shares of Voting Stock of the surviving entity or offering. (yd) an acquisition of assets or stock by the Company so long as, in either the case of (x) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations pursuant to this Section 3 shall terminate upon an Initial Public Offering. For purposes of this Section 35.4, "Voting Stock" the following terms shall mean stock of have the Company of any class or series entitled to vote generally in the election of directors of the Company.corresponding meanings set forth herein:

Preemptive Rights. (a) 5.1 Certain Pre-emptive Rights. If at any time prior to the Company proposes to issue or otherwise Transfer any Securities to any Person-------------------------- fifteenth anniversary of the IPO Closing Date, then the Company shall make propose to issue to any Person any shares of its Common Stock or any securities exercisable for the offer to sell and otherwise comply with the requirements set forth in this Section 3. Notwithstanding the foregoing, purchase of or convertible into Common Stock (A) the Company may Transfer Securities, and any right, title or interest therein, without making the offer to sell set forth in this Section 3 in connection with other than (i) an Initial Public Offeringthe issuance of Common Stock or securities exercisable for the purchase of or convertible into Common Stock pursuant to a firm commitment underwritten public offering or pursuant to Rule 144A or Regulation S promulgated under the Securities Act, (ii) the issuance of up Common Stock or securities exercisable for the purchase of or convertible into Common Stock pursuant to 200,000 a registration statement directly or indirectly to the holders of the outstanding capital stock of a corporation or other business entity with a class of equity securities registered under the Exchange Act in connection with the Company's acquisition of such corporation or other business or substantially all of its assets (whether by merger, consolidation, purchase of stock or assets or otherwise), or (iii) the grant of stock options to officers, directors or employees of the Company or any of its Subsidiaries pursuant to stock option plans approved by the board of directors of the Company or the issuance of Common Stock upon the exercise of any such stock option), Seven, Tracinda and Xx. Xxxxxxx shall have the right to elect at any time within 10 days after receipt of notice from the Company, as applicable: (a) if such issuance is of Common Stock, to subscribe for and purchase for cash a number of shares of Common Stock such that after giving effect to management such issuance to such other Person and employees such purchase by any one or more of Seven, Tracinda and Xx. Xxxxxxx, as the case may be, each party so electing shall continue to beneficially own the same percentage of outstanding Common Stock that such electing party beneficially owned prior to such issuance to such other Person and such purchase by any one or more of Seven, Tracinda and Xx. Xxxxxxx, as the case may be; and (b) if such issuance is of securities exercisable for the purchase of or convertible into Common Stock, to subscribe for and purchase for cash a number of such securities equal to the product of the aggregate number of such securities to be issued (including pursuant to this Section 5.1) multiplied by the percentage of the then outstanding Common Stock that is beneficially owned by Seven, Tracinda or Xx. Xxxxxxx, as the case may be. The price to be paid in any such purchase by any one or more of Seven, Tracinda and Xx. Xxxxxxx and the other terms of purchase shall be the same as applicable to the purchase of Common Stock or such other securities by such other Person, except that in all cases the price to be paid by Seven, Tracinda and Xx. Xxxxxxx shall be paid in cash. In the event that such shares of Common Stock or such other securities are to be issued to such other Person for property or services, the price per share or other security to be paid by Seven, Tracinda and Xx. Xxxxxxx shall be equal to the fair market value per share or other security of the property or services to be received by the Company from such other Person, as such fair market value is determined by the "independent directors" of the Company elected to the board of directors of the Company pursuant to the Company's 1997 Equity provisions of clause (D) Section 3.2(a)(i) of this Agreement. The rights of Seven and Performance Incentive Plan or any other incentive plan which provides for the issuance of Securities exclusively Tracinda set forth in this Section 5.1 shall terminate with respect to directors, officers or employees of the Company, (iii) the issuance of each such party at such time as such party beneficially owns less than 250,000 shares of Common Stock pursuant to the Employment Agreement and the Warrants or (iv) an issuance Stock. The rights of Securities Xx. Xxxxxxx set forth in consideration for and upon consummation of (x) a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority of the issued and outstanding shares of Voting Stock of the surviving entity or (y) an acquisition of assets or stock by the Company so long as, in either the case of (x) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations pursuant to this Section 3 5.1 shall terminate upon an Initial Public Offeringat such time as Xx. For purposes of this Section 3, "Voting Stock" shall mean stock of Xxxxxxx is no longer the Company of any class or series entitled to vote generally in the election of directors Chief Executive Officer of the Company.

Preemptive Rights. (ai) Each existing Member shall have the preemptive right to acquire its pro rata share of any Units or other securities which are proposed to be issued by the Company from and after the Effective Date, on the same terms and conditions set by the Board in accordance with, and as notified pursuant to, Section 3.2. (ii) If the Company proposes to issue any Units or otherwise Transfer any Securities other securities, it shall give each Member written notice of its intention, describing the securities, the price and the terms and conditions upon which the Company proposes to issue the same. Each Member shall have fifteen (15) days from the giving of such notice to agree to purchase its pro rata share of the securities for the price and upon the terms and conditions specified in the notice by giving written notice to the Company and stating therein the quantity of securities to be purchased. Notwithstanding the foregoing, the Company shall not be required to offer or sell such securities to any PersonMember who would cause the Company to be in violation of applicable federal securities laws by virtue of such offer or sale. (iii) If not all of the Members elect to purchase their pro rata share of the securities, then the Company shall make promptly notify in writing the Members who do so elect and shall offer such Members the right to acquire such unsubscribed securities. The Members shall have five (5) days after receipt of such notice to notify the Company of its election to purchase all or a portion thereof of the unsubscribed securities. If the Members fail to exercise in full the rights of first refusal, the Company shall have ninety (90) days thereafter to sell the securities in respect of which the Member's rights were not exercised, at a price and otherwise comply with upon general terms and conditions not materially more favorable to the requirements set forth purchasers thereof than specified in this Section 3. Notwithstanding the foregoing, (A) the Company may Transfer Securities, and any right, title or interest therein, without making the offer to sell set forth in this Section 3 in connection with (i) an Initial Public Offering, (ii) the issuance of up to 200,000 shares of Common Stock to management and employees of the Company pursuant to the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides for notice to the issuance of Securities exclusively Members pursuant to directors, officers or employees Section 6.6(b)(ii) hereof. If the Company has not sold such securities within ninety (90) days of the Company, (iii) the issuance of shares of Common Stock notice provided pursuant to Section 6.6(b)(ii), the Employment Agreement and Company shall not thereafter issue or sell any securities, without first offering such securities to the Warrants or Members in the manner provided above. (iv) an issuance The preemptive rights of Securities in consideration for each Member under this Section 6.6 may be transferred only to the same parties and upon consummation shall be subject to the same restrictions as any Transfer of (x) a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority of the issued and outstanding shares of Voting Stock of the surviving entity or (y) an acquisition of assets or stock by the Company so long asUnits, in either the case of (x) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof 9.1 and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations pursuant to this Section 3 shall terminate upon an Initial Public Offering. For purposes of this Section 3, "Voting Stock" shall mean stock of the Company of any class or series entitled to vote generally in the election of directors of the Company9.3.

Preemptive Rights. (a) If the Company proposes to issue or otherwise Transfer any Securities to any Person, then the Company shall make the offer to sell and otherwise comply with the requirements Except as set forth in this Section 3subsection (b) below, the Company will not issue, sell or otherwise transfer to the Xxxx Stockholders or the Bear Xxxxxxx Stockholders (an "Issuance") at any time prior to a Public Offering, any capital -------- stock or debt securities (or securities convertible into or exercisable or exchangeable for capital stock or debt securities) unless, at least 15 days prior to such Issuance, the Company notifies each holder of Consultant Stock in writing of the Issuance (including the price, the purchasers thereof and the other terms thereof) and grants to each holder of Consultant Stock, the right (the "Right") to subscribe for and purchase a portion of such additional shares ----- or other securities so issued at the same price and on the same terms as issued in the Issuance equal to the quotient determined by dividing (1) the number of fully diluted shares of Class A Common and Class B Common held by such holder by (2) the total number of shares of Class A Common and Class B Common outstanding on a fully diluted basis. Notwithstanding the foregoing, if all Persons entitled to purchase or receive such stock or securities are required to also purchase other securities of the Company, the holders of capital stock exercising their Right pursuant to this Section shall also be required to purchase the same strip of securities (Aon the same terms and conditions) that such other Persons are required to purchase. The Right may be exercised by such holder at any time by written notice to the Company may Transfer Securitiesreceived by the Company within 10 days after receipt by such holder of the notice from the Company referred to above. The closing of the purchase and sale pursuant to the exercise of 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. (b) Notwithstanding the foregoing, and any right, title or interest therein, without making the offer Right shall not apply to sell set forth in this Section 3 in connection with (i) an Initial Public Offeringissuances of capital stock or debt securities (or securities convertible into or exchangeable for, or options to purchase, capital stock or debt securities), pro rata to all holders of any class of Stock, as a dividend on, subdivision of or other distribution in respect of, such class of capital stock, (ii) the issuance conversions or exchanges of up to 200,000 shares one class or form of Common Stock to management and employees capital stock into another class or form of the Company pursuant to the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides for the issuance of Securities exclusively to directors, officers or employees of the Companycapital stock, (iii) issuances of capital stock upon exercise of any debt security issued by the issuance of shares of Common Stock pursuant to the Employment Agreement and the Warrants Company, or (iv) an the issuance of Securities capital stock (or securities convertible into or exchangeable for, or options to purchase, capital stock) on customary, arm's length terms in consideration for and upon consummation of (x) a merger connection with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority of the issued and outstanding shares of Voting Stock of the surviving entity or (y) an acquisition of assets or stock provision by the Xxxx Stockholders or the Bear Xxxxxxx Stockholders of debt financing to the Company so long as, in either the case of or its Subsidiaries. (xc) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations pursuant to this Section 3 shall terminate upon an Initial Public Offering. For purposes The provisions of this Section 3, "Voting Stock" shall mean stock 5 will terminate upon the consummation of the Company of any class a Public Offering or series entitled to vote generally in the election of directors of the Companyupon a Xxxx Exit.

Preemptive Rights. (a) If the Company proposes to issue or otherwise Transfer any Securities to any Person, then the Company shall make the offer to sell and otherwise comply with the requirements Except as set forth in this Section 3subsection (b) below, the Company will not issue, sell or otherwise transfer for consideration to any Investor (an "Issuance") at any time prior to a Public Offering, any capital stock or debt security unless, at least 30 days and not more than 60 days prior to such Issuance, the Company notifies Executive in writing of the Issuance (including the price, the purchasers thereof and the other terms thereof) and grants to Executive, the right (the "Right") to subscribe for and purchase a portion of such additional shares or other securities so issued at the same price and on the same terms as issued in the Issuance equal to the quotient determined by dividing (1) the number of fully diluted shares of Executive Stock held by Executive (other than options to acquire stock from other stockholders of the Company) by (2) the total number of shares of Common Stock outstanding on a fully diluted basis. Notwithstanding the foregoing, (A) the Company may Transfer Securities, and any right, title if all Persons entitled to purchase or interest therein, without making the offer receive such stock or securities are required to sell set forth in this Section 3 in connection with (i) an Initial Public Offering, (ii) the issuance of up to 200,000 shares of Common Stock to management and employees of the Company pursuant to the Company's 1997 Equity and Performance Incentive Plan or any also purchase other incentive plan which provides for the issuance of Securities exclusively to directors, officers or employees securities of the Company, if Executive exercises the Right pursuant to this Section 10 then Executive will also be required to purchase the same strip of securities (on the same terms and conditions) that such other Persons are required to purchase. The Right may be exercised by Executive at any time by written notice to the Company received by the Company within 15 days after receipt by Executive of the notice from the Company referred to above. The closing of the purchase and sale pursuant to the exercise of the Right will occur at least 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, Executive may, at his election, pay the purchase price for such additional shares or other securities in such property or solely in cash. In the event that Executive elects to pay cash, the amount thereof will be determined based on the fair value of the consideration received or receivable by the Company in connection with the Issuance. Notwithstanding the foregoing, the Right will 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 or (ii) issuances of Common Stock upon conversion of any shares of the Company's Series A Preferred Stock, or (iii) the issuance of shares of Common Stock pursuant (or securities convertible into or exchangeable for, or options to purchase, Common Stock) in connection with the provision by the Investors or their Affiliates of debt financing to the Employment Agreement and the Warrants Company or (iv) an issuance of Securities in consideration for and upon consummation of (x) a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority of the issued and outstanding shares of Voting Stock of the surviving entity or (y) an acquisition of assets or stock by the Company so long as, in either the case of (x) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations pursuant to this Section 3 shall terminate upon an Initial Public Offeringits Subsidiaries. For purposes The provisions of this Section 3, "Voting Stock" shall mean stock 10 will terminate upon the consummation of the Company of any class or series entitled to vote generally in the election of directors of the Companya Public Offering.

Preemptive Rights. (a) If the Company proposes LLC authorizes the issuance or sale of any equity security, or any rights, options, warrants or convertible or exchangeable securities entitling the holders thereof to issue subscribe for or purchase or otherwise Transfer acquire any Securities to any Personequity security (“Share Equivalents”), then the Company LLC shall make the first offer to sell to each Member a portion of such equity securities or Share Equivalents equal to (a) the number of Vested Shares (as hereinafter defined) and otherwise comply with Vested Share Equivalents directly owned and held by such Member divided by (b) the requirements set forth total number of Vested Shares and Vested Share Equivalents directly owned and held by all Members. In order to accept an offer under this Section 2.09, each Member must, within 10 days after receipt of written notice from the LLC describing in reasonable detail the equity securities or Share Equivalents being offered, the purchase price thereof, the payment terms and such holder’s percentage allotment, deliver a written notice accepting such offer. (b) If one or more Members elect not to accept such offer for the full amount of securities which they are entitled to purchase pursuant to this Section 2.09, the other participating Members shall have a right to purchase their pro rata share (based on Vested Shares and Vested Share Equivalents of such participating Members) of any securities which were not so purchased, and such other Members shall have an additional five (5) days from the date upon which they are notified of such opportunity in which to increase the number of securities offered hereunder to be purchased by them. During the 90 days following the expiration of such additional five day period, the LLC shall be entitled to sell any such shares or any such Share Equivalents which the Members have not elected to purchase on terms and conditions no more favorable to the purchasers thereof than those offered to such Members. Notwithstanding anything in this Section 3. Notwithstanding Agreement to the foregoingcontrary, (A) the Company may Transfer Securities, and any right, title or interest therein, without making the offer to sell set forth in provisions of this Section 3 in connection with 2.09 shall not apply to (i) an Initial Public Offering, (ii) the issuance of up equity securities or options to 200,000 shares purchase equity securities or Share Equivalents approved by the Board of Common Stock Directors and issued in connection with: (a) grants to management and employees employees, directors, advisors, consultants or other service providers of the Company LLC pursuant to an equity incentive plan, unit purchase agreement or similar compensation arrangement adopted by the Company's 1997 Equity and Performance Incentive Plan Board of Directors; or (b) acquisitions, partnership arrangements or strategic alliances approved by the Board of Directors; (c) debt financings from banks, equipment lenders or other similar financial institutions approved by the Board of Directors, or (d) a firm commitment underwritten offering of securities of the LLC or any other incentive plan successor registered under the Securities and Exchange Commission in which provides the per share price is at least $3.00 (as adjusted for stock splits, dividends, recapitalizations and the issuance of Securities exclusively to directors, officers or employees of the Company, (iiilike) the issuance of shares of Common Stock pursuant and gross proceeds to the Employment Agreement LLC and the Warrants or selling Members (ivbefore underwriting discounts, commissions and fees) an issuance of Securities in consideration for and upon consummation of at least $10,000,000 (x) a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority of the issued and outstanding shares of Voting Stock of the surviving entity or (y) an acquisition of assets or stock by the Company so long as, in either the case of (x“Qualified IPO”) or (y)ii) any equity securities, such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and the approval Common Shares or Share Equivalents issued upon exercise of the transaction by such director is required pursuant to Section 5 hereof options described in (a "Qualifying Acquisition"i)(a) and (B) any rights or obligations pursuant to this Section 3 shall terminate upon an Initial Public Offering. For purposes of this Section 3, "Voting Stock" shall mean stock of the Company of any class or series entitled to vote generally in the election of directors of the Companyabove.

Preemptive Rights. (a) If the Company proposes to issue engages in any transaction involving the direct or otherwise Transfer any indirect sale or issuance of Covered Securities to any Person, then by the Company shall make after six months from the offer date of this Agreement, PEAK6 will be afforded the opportunity to sell acquire from the Company, for the same price and otherwise comply with on the requirements set forth in this Section 3. Notwithstanding same terms as such Covered Securities are offered, up to an amount (the foregoing, (A“Amount”) the Company may Transfer Securities, and any right, title or interest therein, without making the offer equal to sell set forth in this Section 3 in connection with (i) an Initial Public Offering, the total number of shares or other units of Covered Securities being offered multiplied by (ii) the issuance of up PEAK6’s Aggregate Ownership Percentage at such time. Aggregate Ownership Percentage” means a fraction (expressed as a percentage) equal to 200,000 shares of Common Stock to management and employees of the Company pursuant to the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides for the issuance of Securities exclusively to directors, officers or employees of the Company, (iiii) the issuance aggregate number of shares of Common Stock held by PEAK6 and its Affiliates at such time (which, for the avoidance of doubt, shall exclude any Warrant Shares, whether or not vested, to the extent the Warrant is unexercised with respect to such Warrant Shares) divided by (ii) the aggregate number of shares of Common Stock outstanding at such time. “Covered Securities” means any Equity Securities (as defined below) other than any securities that are issued by the Company (i) pursuant to any employment contract, employee or benefit plan, stock purchase plan, stock ownership plan, stock option or equity compensation plan or other similar plan where stock is being issued or offered to a trust, other entity or otherwise, to or for the Employment benefit of any employees, potential employees, officers or directors of the Company or any of its Subsidiaries, (ii) as consideration in a business combination or other merger or acquisition transaction, (iii) pursuant to this Agreement or the Warrant (including the Warrant itself and shares of Common Stock issuable upon the Warrants or exercise of the Warrant); (iv) an issuance of Securities in consideration for and upon consummation of (x) pursuant to a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority split or subdivision of the issued and outstanding shares of Voting Common Stock of the surviving entity or (y) an acquisition of assets or stock by the Company so long as, in either the case of (x) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and a dividend or other distribution payable in additional shares of Common Stock or other securities or rights convertible into, or entitling the approval holder thereof to receive directly or indirectly, additional shares of the transaction Common Stock (hereinafter referred to as “Common Stock Equivalents”) without payment of any consideration by such director is required pursuant to Section 5 hereof holder for the additional shares of Common Stock or the Common Stock Equivalents (a "Qualifying Acquisition") including the additional shares of Common Stock issuable upon conversion or exercise thereof); and (B) any rights or obligations pursuant to this Section 3 shall terminate upon an Initial Public Offering. For purposes of this Section 3, "Voting Stock" shall mean stock of the Company of any class or series entitled to vote generally in the election of directors of the Company.v)

Preemptive Rights. The Company shall not issue (aan “Issuance”) If additional equity interests to any Principal or any Related Party of any Principal unless (i) such issuance was pursuant to the terms of the 2004 Stock Incentive Plan of the Company, or other incentive plan of PCFC, in each case with such issuance being approved by a compensation committee comprised solely of independent directors or approved by a majority of the independent directors of the full board of directors of PCFC or (ii) prior to such Issuance, the Company proposes notifies each Tag-Along investor in writing of the Issuance and grants to issue such Tag-Along Investor the right (the “Right”) to subscribe for and purchase such additional equity interests of the same class so issued at the same price and on the same terms and conditions as issued in the Issuance such that, after giving effect to the Issuance and exercise of the Right (including, for purposes of this calculation, equity interests issuable upon conversion, exchange or otherwise Transfer exercise of any Securities security so convertible, exchangeable or exercisable issued in the Issuance or subject to the Right), the Shares owned by such Tag-Along Investor (rounded, in each case, to the newest whole Share) shall represent the same percentages of the outstanding Common Stock as were owned by such Tag-Along Investor prior to the Issuance relative to the Principal or Related Party, as the case may be. The Right may be exercised by such Tag-Along Investor at any Person, then time by written notice to the Company received by the Company within 15 days after receipt of notice from the Company of the Issuance, and the closing of the purchase and sale pursuant to the exercise of the Right shall make occur at least 10 days after the offer Company receives notice of the exercise of the Right and prior to sell and otherwise comply or concurrently with the requirements set forth in this Section 3closing of the Issuance. Notwithstanding the foregoing, (A) the Company may Transfer Securities, and any right, title or interest therein, without making the offer to sell set forth in this Section 3 in connection with Right shall not apply (i) an Initial Public Offeringprior to the exercise of the Warrants by the Buyer, (ii) to any issuance, pro rata to all holders of Common Stock (or securities convertible into or exchangeable for, or options to purchase, Common Stock) as a dividend on, subdivision of, or other distribution in respect of; the Common Stock; (iii) to the conversion or exchange of securities convertible or exchangeable for Common Stock outstanding on the date hereof; (iv) to the issuance of up Common Stock upon the exercise of options, rights or warrants issued to 200,000 shares the holders of Common Stock to management and employees of outstanding on the Company pursuant to the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides for date hereof (including the issuance of Securities exclusively to directors, officers or employees of the Company, (iii) the issuance of shares of Common Stock pursuant upon the exercise of options contributed to the Employment Agreement and the Warrants 123 by Xxxxx Xxxxxx or (iv) an issuance of Securities in consideration for and upon consummation of (x) a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority of the issued and outstanding shares of Voting Stock of the surviving entity or (y) an acquisition of assets or stock by the Company so long as, in either the case of (x) or (yXxxxx Xxxxxxx), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations pursuant to this Section 3 shall terminate upon an Initial Public Offering. For purposes of this Section 3, "Voting Stock" shall mean stock of the Company of any class or series entitled to vote generally in the election of directors of the Company.

Preemptive Rights. Subject to the terms and conditions specified in this Section 2.1, the Company hereby grants to each Investor a right to participate in future issuances by the Company of its Shares (aas hereinafter defined) If in accordance with this Section 2.1. Nothing contained in this Section 2.1 shall limit the Company's ability to negotiate the terms and conditions of such future issuances with third parties so long as the transactions relating to such issuances are not consummated until the Company has complied with the provisions set forth herein. Each time the Company proposes to issue offer or otherwise Transfer sell any Securities to shares of, or securities convertible into or exercisable for any Personshares of, then any class of its capital stock ("Shares"), the Company shall make the offer such Shares to sell and otherwise comply each Investor in accordance with the requirements set forth in this Section 3. Notwithstanding the foregoing, following provisions: (Aa) the The Company may Transfer Securities, and any right, title or interest therein, without making the offer shall deliver a notice by certified mail (a "Notice") to sell set forth in this Section 3 in connection with each Investor stating (i) an Initial Public Offeringits bona fide intention to offer or sell such Shares, (ii) the issuance number of up such Shares to 200,000 shares of Common Stock to management be offered or sold, and employees of the Company pursuant to the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides for the issuance of Securities exclusively to directors, officers or employees of the Company, (iii) the issuance price and terms, if any, upon which it proposes to offer or sell such Shares. (b) Within five (5) Business Days after delivery of the Notice, each Investor may elect to purchase or obtain, at the price and on the terms specified in the Notice, up to that portion of such Shares which equals the proportion that the sum of the number of shares of Common Stock pursuant plus the number of shares of Common Stock issuable upon exercise of the Warrants, in each case, then held by such Investor bears to the Employment Agreement total number of shares of Common Stock then outstanding (assuming full conversion and exercise of all convertible or exercisable securities). (c) The Company may, during the Warrants ninety (90) day period following the expiration of the period provided in Section 2.1(b) hereof, offer the remaining unsubscribed portion of the Shares to any Person or (iv) an issuance of Securities in consideration for Persons at a price not less than, and upon consummation of (x) a merger with respect terms no more favorable to which the holders of Voting Stock immediately prior to such merger beneficially own offeree than those specified in the Notice. If the Company does not less than a majority enter into an agreement for the sale of the issued and outstanding shares of Voting Stock Shares within such period, or if such agreement is not consummated within ninety (90) days of the surviving entity or (y) an acquisition of assets or stock by the Company so long asexecution thereof, in either the case of (x) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right provided hereunder shall be deemed to nominate directors pursuant be revived and such Shares shall not be sold unless reoffered to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof each Investor in accordance herewith. (a "Qualifying Acquisition"d) and (B) any The preemptive rights or obligations pursuant to in this Section 3 2.1 shall terminate upon an Initial Public Offering. For purposes of this Section 3, "Voting Stock" shall mean stock of not be applicable (i) to the issuance or sale by the Company of any class of its capital stock pursuant to any benefit, option, restricted stock, stock purchase or series entitled similar plans or arrangements, including pursuant to vote generally or upon the exercise of option rights, warrants or other securities or agreements, (ii) to or after consummation of any underwritten public offering or any other public offering by the Company in which shares are offered at market price, (iii) to the election issuance of directors securities pursuant to the conversion or exercise of convertible or exercisable securities, (iv) to the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, (v) to the issuance of securities to financial institutions or lessors in connection with commercial credit arrangements, equipment financings, or similar transactions, which issuances are primarily for other than equity financing purposes, or (vi) to any issuance in connection with a stock split, reverse stock split, reclassification, recapitalization, consolidation, merger or similar event. (e) The agreements and covenants contained in this Section 2 shall terminate on the Cessation Date.

Preemptive Rights. (a) If the Company proposes a Member intends to issue or otherwise Transfer any Securities to any Person, then the Company shall make the offer to sell and otherwise comply with the requirements set forth in this Section 3. Notwithstanding the foregoing, (A) the Company may Transfer Securities, and any right, title or interest therein, without making the offer to sell set forth in this Section 3 in connection with (i) an Initial Public Offering, (ii) the issuance of up to 200,000 shares of Common Stock to management and employees of the Company pursuant to the Company's 1997 Equity and Performance Incentive Plan all or any other incentive plan which provides for the issuance part of Securities exclusively its Ownership Interest, or an Affiliate of a Member intends to directors, officers or employees Transfer Control of the Company, such Member (iii) the issuance of shares of Common Stock pursuant to the Employment Agreement and the Warrants or (iv) an issuance of Securities in consideration for and upon consummation of (x) a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority of the issued and outstanding shares of Voting Stock of the surviving entity or (y) an acquisition of assets or stock by the Company so long as, in either the case of (x) or (y"Transferring Entity"), such transaction has been approved Member shall promptly notify each other Member of such intentions. The notice shall state the price and all other pertinent terms and conditions of the intended Transfer, and shall be accompanied by a copy of the affirmative vote offer or the contract for sale. If the consideration for the intended transfer is, in whole or in part, other than monetary, the notice shall describe such consideration and its monetary equivalent (based upon the fair market value of at least one director appointed by Nu-Tech ifthe nonmonetary consideration and stated in terms of cash or currency). The other Member or Members, as applicable, shall have sixty (60) days from the date such notice is delivered to notify the Transferring Entity (and the Member if its Affiliate is the Transferring Entity) whether it elects to acquire the offered interest at the time such merger is consummatedsame price (or its monetary equivalent in cash or currency) and on the same terms and conditions as stated in the notice. If there are more than two (2) Members, Nuthe non-Tech has Transferring Entity Members shall have the right to nominate directors pursuant acquire the offered interest pro rata, and if a non-Transferring Entity Member elects not to Section 4 hereof acquire its proportionate share of the offered interest, the other non-Transferring Entity Members shall have the right to do so. If the non-Transferring Entity Members elect to acquire the offered interest, their acquisition of the offered interest shall be consummated promptly. 1.1 If the non-Transferring Entity Member or Members, as applicable, fail to so elect within the period provided for above, the Transferring Entity shall have ninety (90) days following the expiration of such period to consummate the Transfer to a third party at a price and on xxxxx no less favorable to the Transferring Entity than those offered by the Transferring Entity to the non-Transferring Entity Member or Members, as applicable, in the aforementioned notice. 1.2 If the Transferring Entity fails to consummate the Transfer to a third party within the period stated above, the preemptive right and the approval correlative obligation of the transaction by Transferring Entity in respect of such director is required pursuant offered interest shall be deemed to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations pursuant be revived. Any subsequent proposal to this Section 3 Transfer such interest shall terminate upon an Initial Public Offering. For purposes of this Section 3, "Voting Stock" shall mean stock be conducted in accordance with all of the Company of any class or series entitled to vote generally procedures stated in the election of directors of the Companythis Section.

Preemptive Rights. (a) If The Royalty Purchasers will have the Company proposes to issue or otherwise Transfer any Securities to any Person, then the Company shall make the offer to sell and otherwise comply with the requirements preemptive rights set forth in this Section 3. Notwithstanding the foregoing, (A) 9.13 with respect to any issuance of any Common Stock or Equity-based Securities by the Company may Transfer Securities, or any of its Subsidiaries that are issued from and after the date of the Original Agreement through the Closing (any right, title or interest therein, without making the offer to sell set forth such issuance other than those described in this Section 3 in connection with clauses (i) an Initial Public Offering), (ii) and (iii) below, a "Preemptive Rights Issuance"), except for (i) issuances to employees, directors and consultants pursuant to and in accordance with stock incentive plans of the issuance Company that were publicly filed with the SEC prior to the date of up the Original Agreement (provided that any such issuances are made in accordance with the terms, conditions and limitations of such plans as they existed as of the date of the Original Agreement and without effect to 200,000 any amendments or other modifications thereof after the date of the Original Agreement unless approved by the Majority Purchasers) or in accordance with written agreements set forth in Schedule 9.13 (provided that any such issuances are made in accordance with the terms, conditions and limitations of such agreements as they existed as of the date of the Original Agreement and without effect to any amendments or other modifications thereof after the date of the Original Agreement unless approved by the Majority Purchasers), (ii) issuances of shares of Common Stock to management and employees of the Company as consideration in any merger approved pursuant to the Company's 1997 Equity and Performance Incentive Plan Section 9.1, or any other incentive plan which provides for the issuance of Securities exclusively to directors, officers or employees of the Company, (iii) the issuance issuances of shares of Common Stock pursuant to and in accordance with warrant agreements entered into (and publicly filed with the Employment SEC) prior to the date of the Original Agreement and previously disclosed to the Warrants Purchasers (provided that any such issuances are made in accordance with the terms, conditions and limitations of such warrant agreements as they existed as of the date of the Original Agreement and without effect to any amendments or other modifications thereof after the date of the Original Agreement unless approved by the Majority Purchasers). (ivb) If the Company or any of its Subsidiaries at any time or from time to time, from and after the date of the Original Agreement through the Closing, effects one or more Preemptive Rights Issuance, the Company shall give written notice to each Royalty Purchaser a reasonable period in advance of each such issuance (but in no event later than ten (10) days prior to such issuance), which notice shall set forth the number and type of the securities to be issued, the issuance date, the offerees or transferees, the price per security, and all of the other terms and conditions of such issuance, which shall be deemed updated by delivery of the final documentation for such issuance to each Royalty Purchaser. With respect to each such Preemptive Rights Issuance, the Royalty Purchasers shall have the right, exercisable (by written notice to the Company (the "Preemptive Rights Notice")) at any time at or within thirty (30) days following the Closing, to elect to purchase (or designate an Affiliate thereof (including, without limitation, another Royalty Purchaser) to purchase) a number of securities specified in such Preemptive Rights Notice (which number may be any number up to but not exceeding such Royalty Purchaser's pro rata portion of the Preemptive Rights Cap Amount applicable to such Preemptive Rights Issuance), on the same terms and conditions as such Preemptive Rights Issuance (it being understood and agreed that (i) the price per security that the Royalty Purchasers shall pay shall be the same as the price per security set forth in the Preemptive Rights Notice, and (ii) the Royalty Purchasers shall not be required to comply with any terms, conditions, obligations or restrictions (including, without limitation, any non-compete, standstill or other limitations but excluding any remaining period of a transfer or lock-up restriction applicable at such time to other purchasers in such Preemptive Rights Issuance) not directly necessary for the effectuation of the sale or issuance of Securities in consideration for and upon consummation of such securities). The Royalty Purchasers shall, by notice to the Company, within thirty (x30) a merger days after the Closing, indicate which pre-Closing Preemptive Rights Issuances the Royalty Purchasers are electing to exercise their preemptive rights with respect to which and the holders number of Voting Stock immediately prior securities the Royalty Purchasers are electing to purchase with respect to such merger beneficially own not less than a majority of pre-Closing Preemptive Rights Issuances. If the issued and outstanding shares of Voting Stock of the surviving entity Royalty Purchasers exercise their preemptive rights hereunder with respect to one or (y) an acquisition of assets or stock by more Preemptive Rights Issuances, the Company so long asshall (or shall cause such Subsidiary to) issue to the Royalty Purchasers (or their designated Affiliates) the number of securities specified in the applicable Preemptive Rights Notices as soon as reasonably practicable thereafter. For the avoidance of doubt, in either the case event that the issuance of (x) Common Stock or (y)Equity-based Securities in a Preemptive Rights Issuance involves the purchase of a package of securities that includes Common Stock or Equity-based Securities and other securities in the same Preemptive Rights Issuance, such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has each Royalty Purchaser shall have the right to nominate directors pursuant acquire its applicable pro rata portion of such other securities, together with its applicable pro rata portion of such Common Stock or Equity-based Securities, in the same manner described above (as to Section 4 hereof amount, price and other terms). (c) The election by the approval Royalty Purchasers not to exercise its preemptive rights hereunder with respect to any Preemptive Rights Issuance shall not affect its right (other than in respect of a reduction in the transaction by such director is required pursuant Purchaser Percentage Interest) as to Section 5 hereof (a "Qualifying Acquisition") any other Preemptive Rights Issuances. Each Royalty Purchaser shall be entitled to deliver its own notices and (B) any rights or obligations pursuant to this Section 3 shall terminate upon an Initial Public Offering. For make its own elections for purposes of this Section 39.13, "Voting Stock" and the non-exercise by any Royalty Purchaser shall mean stock of not affect the Company rights of any class or series entitled to vote generally in the election of directors of the Companyother Royalty Purchaser under this Section 9.13.

Preemptive Rights. (a) If at any time during the Standstill Period ----------------- The Company proposes to issue (whether for cash, property or otherwise Transfer services) any Equity Securities (as defined below) to any person or entity (including a Shareholder) (other than pro rata issuances of Equity Securities to all holders of the Company's common stock), the New Shareholder shall have the right (which it may exercise in whole or in part) to purchase, upon the same terms (but subject to the penultimate sentence of this section 4.1), a proportionate quantity of those Equity Securities (or Equity Securities as similar as practicable to those Equity Securities) in the proportion that the aggregate number of Shares then beneficially owned by Xxxxx XX and all direct and indirect majority-owned subsidiaries of Xxxxx Xx (including the New Shareholder and all direct and indirect majority-owned subsidiaries of the New Shareholder) (all such subsidiaries of Xxxxx Xx being collectively called the "Bayer Controlled subsidiaries") bears to the total number of Shares then outstanding. (For purposes of this agreement, Xxxxx Xx and the Bayer Controlled Subsidiaries shall not be deemed to own beneficially any PersonShares subject to the Voting Trust Agreement or held by any of the other Shareholders, then and none of the Continuing Shareholders shall be deemed to own beneficially any Shares held by any of the other Shareholders and, in each case, otherwise subject to the provisions of this agreement with respect to voting or disposition.) The Company shall give notice to the New Shareholder setting forth the identity of the purchaser and the time, which shall not be fewer than 60 days and not more than 90 days, within which, and the terms upon which, the New Shareholder may purchase the Equity Securities, which terms shall be the same as the terms upon which the purchaser may purchase the Equity Securities. Notwithstanding anything to the contrary in this section 4.1, however, in the case of any issuance of options, rights or securities convertible into, or exchangeable or exercisable for, Shares, the Company shall make not be deemed to have issued Equity Securities until the offer to sell and otherwise comply with issuance of the requirements set forth in this Section 3. Notwithstanding the foregoingShares underlying such options, (A) the Company may Transfer Securitiesrights or securities, and the New Shareholder's right to purchase Shares under this section 4.1 shall not become effective, unless the number of Shares the New Shareholder is entitled to purchase at the time under this section 4.1 is greater than 1% of the then outstanding Shares (but any rightentitlement to purchase Shares that is so suspended shall be carried forward and cumulated, title or interest thereinuntil the cumulative number of Shares so carried forward equals at least 1% of the then outstanding Shares, without making at which time the offer right that had been suspended shall cease to sell set forth in be suspended for 60 days, at which time the right shall terminate). Where the right to purchase Equity Securities under this Section 3 in connection with section 4.1 arises from an issuance of Equity Securities (i) an Initial Public Offeringto or for the benefit of employees or directors of the Company or any of its subsidiaries, (ii) the issuance of up to 200,000 shares of Common Stock to management and employees of the Company pursuant to the Company's 1997 Equity and Performance Incentive Plan in connection with an acquisition or any other incentive plan which provides for the issuance of Securities exclusively to directors, officers or employees of the Company, (iii) the issuance of shares of Common Stock pursuant to the Employment Agreement and the Warrants or (iv) an issuance of Securities in consideration for and upon consummation of (x) a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority of the issued and outstanding shares of Voting Stock of the surviving entity or (y) an acquisition of assets or stock by the Company so long as, in either the case of (x) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations pursuant to this Section 3 shall terminate upon an Initial Public Offering. For purposes of this Section 3, "Voting Stock" shall mean stock of the Company of any class or series entitled to vote generally in the election of directors of the Company.warrant or

Preemptive Rights. (a) If the Company proposes to issue and sell to any Investor or otherwise Transfer any other party (the "Proposed Purchasers") (i) any Securities or (ii) any securities containing options or rights to acquire any Personshares of Common Stock, then or (iii) any securities convertible into shares of Common Stock (such shares and other securities are hereinafter collectively referred to as "Newly Issued Securities"), the Company shall make the will first offer to sell each of the Major Stockholders other than the Proposed Purchasers (each a "Preemptive Investor") a portion of the number or amount of such securities proposed to be sold in any such transaction or series of related transactions equal to such Preemptive Investor's Ownership Percentage of the number of shares proposed to be issued and otherwise comply with sold by the requirements 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 in such transaction or series of transactions (such portion, the "Pro Rata Share"). The Major Stockholders shall have the same rights set forth in this Section 32.6 in regards to issuances of equity securities of any subsidiary of the Company other than to the Company. Notwithstanding the foregoing, the provisions of this Section 2.6 shall not be applicable to the issuance of securities (i) upon the conversion of shares of one class of Company capital stock into shares of another class; (ii) as a dividend or distribution on (or payment of accrued yield in respect of) the outstanding Securities or in connection with any ratable stock splits, reclassifications, recapitalizations, consolidations or similar events affecting the Securities, (iii) in any transaction in respect of a Security that offered by the Company to all holders of such Security on a pro rata basis, (iv) to financing sources of the Company in connection with the issuance of debt or restructuring or recapitalization of existing debt, on terms approved by the Board of Directors, after consultation with Centerbridge, and in accordance with this Agreement; provided, however, in no event may more than an aggregate of one percent (1%) of the outstanding shares of Common Stock be issued pursuant to this clause (iv), (v) to officers, directors or employees of the Company or any Subsidiary pursuant to stock option plans or other equity incentive compensation plans or arrangements, on terms approved by the Board of Directors, (vi) in a Public Offering, or (vii) as consideration in connection with a business acquisition by the Company pursuant to a bona fide sale, whether by merger, consolidation, sale of assets or sale or exchange of capital stock or otherwise, to the extent approved by the Board of Directors and otherwise in accordance with this Agreement, including Section 3.6. The Company shall not be under any obligation to consummate any proposed issuance of Newly Issued Securities, nor shall there be any liability on the part of the Company to any Investor if the Company has not consummated any proposed issuance of Newly Issued Securities pursuant to this Section 2.6 for whatever reason, regardless of whether it shall have delivered a Preemptive Notice (as defined below) in respect of such proposed issuance. The Company will give to the Preemptive Investors a written notice setting forth the price, terms and conditions (including the proposed closing date on which the Newly Issued Securities will be purchased and sold) (the "New Issuance Closing Date") upon which the Preemptive Investors may purchase such shares or other securities in accordance with Section 2.6(a) (the "Preemptive Notice"). After receiving a Preemptive Notice, the Preemptive Investors must reply, in writing, within ten (10) days of the date of delivery of such Preemptive Notice that such Persons (or its designated Affiliate(s), who shall execute a Joinder) agree to purchase the shares or other securities offered pursuant to this Section 2.6 on the date of proposed sale (the "Preemptive Reply"). Each Preemptive Investor shall provide a copy of its Preemptive Reply to the other Preemptive Investor concurrently with its delivery of its Preemptive Reply to the Company. If any Preemptive Investor fails to exercise its rights under this Section 2.6 or elects to exercise such rights with respect to less than such Preemptive Investor's Pro Rata Share (the "Non-Electing Preemptive Investor"), the other Preemptive Investor that has exercised or elected to exercise its rights to purchase its entire Pro Rata Share (the "Electing Preemptive Investor") shall be entitled to purchase from the Company the number of Newly Issued Securities that the Non-Electing Preemptive Investor would have been entitled to purchase had it elected to purchase its entire Pro Rata Share or such number of Newly Issued Securities equal to the difference between the Non-Electing Preemptive Investor's Pro Rata Share and the number of Newly Issued Securities elected to be purchased by the Non-Electing Preemptive Investor (all such unpurchased securities, the "Excess Shares"), as the case may be. An Electing Preemptive Investor shall deliver written notice to the Company and the Non-Electing Preemptive Investor of the Electing Preemptive Investor's decision to purchase the Excess Shares within 5 days after the earlier of (i) the Non-Electing Preemptive Investor's delivery of its Preemptive Reply to the Company and (ii) the end of the ten (10) day period referred to above. If the Preemptive Investors fail to deliver a Preemptive Reply or if all Newly Issued Securities are not purchased by the Preemptive Investors in accordance with this Section 2.6, shares or other securities offered to the Preemptive Investors may thereafter, for a period not exceeding six (6) months following the date of the Preemptive Notice, be issued, sold or subjected to rights or options to the proposed original investors at a price and on terms no less than that at which they were offered to the Preemptive Investors. The purchase and sale shall take place on the New Issuance Closing Date or such other date as the parties may agree. Notwithstanding the requirements of this Section 2.6, the Company may make an issuance of Newly Issued Securities at any time without complying with the requirements of Section 2.6(a) and (c) (a "Delayed Issuance")so long as within three (3) business days after the date of the issuance of the Newly Issued Securities, the Company delivers a "Preemptive Escrow Notice" to the Preemptive Investors and otherwise complies with this Section 2.6(d). Such Preemptive Escrow Notice shall set forth the price, terms and conditions upon which the Preemptive Investors may purchase shares of Newly Issued Securities (which shall be the same price, terms and conditions with respect to which the Newly Issued Securities were issued), the amount of Newly Issued Securities that such Preemptive Investor is entitled to receive (such amount to equal the amount of Newly Issued Securities that such Preemptive Investor would have been entitled to receive if such Preemptive Investor had the opportunity to participate in the issuance of the Newly Issued Securities on a pro rata basis in accordance with Section 2.6(a)). A Preemptive Investor may exercise the preemptive right by delivery to the Company and the other Preemptive Investor, within twenty (20) days of the date the Company mailed or caused to be mailed the Preemptive Escrow Notice, of a written notice specifying the number of shares of Newly Issued Securities such Preemptive Investor proposes to purchase of the number of shares of Newly Issued Securities such Preemptive Investor is entitled to purchase (the "Preemptive Election"). If there is a Non-Electing Preemptive Investor, the other Electing Preemptive Investor shall be entitled to purchase the Excess Shares and shall deliver written notice thereof to the Company within five (5) days after the earlier of (i) the delivery of the Non-Electing Preemptive Investor's Preemptive Election and (ii) the end of such twenty (20) day period referred to above. Promptly after the expiration of the twentieth (20th) day after the Company has given the Preemptive Escrow Notice, (A) the Company may Transfer Securities, and any right, title or interest therein, without making the offer shall sell to sell set forth in this Section 3 in connection with (i) an Initial Public Offering, (ii) the issuance of up to 200,000 shares of Common Stock to management and employees of the Company pursuant to the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides for the issuance of Securities exclusively to directors, officers or employees of the Company, (iii) the issuance each Preemptive Investor that number of shares of Common Stock Newly Issued Securities that each such Preemptive Investor proposed to purchase pursuant to the Employment Agreement and the Warrants or (iv) an issuance of Securities in consideration for and upon consummation of (x) a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority of the issued and outstanding shares of Voting Stock of the surviving entity or (y) an acquisition of assets or stock by the Company so long as, in either the case of (x) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") its Preemptive Election and (B) any rights or obligations pursuant when such shares have been issued to this Section 3 shall terminate upon an Initial Public Offering. For purposes of this Section 3such Preemptive Investors, "Voting Stock" shall mean stock of the Company of any class or series all remaining Newly Issued Securities which Preemptive Investors were entitled to vote generally purchase but for which they did not deliver a Preemptive Election may be sold to the original proposed investors upon the terms and conditions set forth in the election Preemptive Escrow Notice for a period not exceeding six (6) months after the original issuance of directors of the CompanyNewly Issued Securities to such investors.

Preemptive Rights. (a) If The Shareholders shall be entitled to the Company proposes to issue or otherwise Transfer any Securities to any Person, then the Company shall make the offer to sell and otherwise comply with the requirements preemptive rights set forth in this Section 3. Notwithstanding the foregoing, (A) 2.1 with respect to any issuance of Common Stock or Equity-based Securities by the Company may Transfer Securitiesother than a Permitted Issuance (a “Preemptive Rights Issuance”) to maintain the voting interest in the Company that they had prior to such Preemptive Rights Issuance, and any rightprovided, title that (x) in the event that the Percentage Interest does not equal or interest thereinexceed ten percent (10%) on August 19, without making 2015, the offer to sell preemptive rights as set forth in this Section 3 2.1 will immediately be suspended, and (y) from and after August 19, 2015, in connection with the event that the Percentage Interest is equals or exceeds ten percent (10%), the Shareholders shall be entitled to the preemptive rights in this Section 2.1 at such times (and only at such times) that the Percentage Interest equals or exceeds ten percent (10%). (b) If any Group Company at any time or from time to time effects a Preemptive Rights Issuance, such Group Company shall give written notice to the Shareholders a reasonable period in advance of such issuance (but in no event later than ten (10) days prior to such issuance), which notice shall set forth the number and type of the securities to be issued, the issuance date, the offerees or transferees, the price per security, and all of the other terms and conditions of such issuance, which shall be deemed updated by delivery of the final documentation for such issuance to the Shareholder. The Shareholders may, by written notice to such Group Company (a “Preemptive Rights Notice”) delivered no later than twenty (20) calendar days after the consummation of such Preemptive Rights Issuance, elect to purchase (or designate an Affiliate thereof to purchase) a number of securities specified in such Preemptive Rights Notice, on the same terms and conditions as such Preemptive Rights Issuance (it being understood and agreed that (i) an Initial Public Offeringthe price per security that the Shareholders shall pay shall be the same as the price per security set forth in the Preemptive Rights Notice, and (ii) the Shareholders shall not be required to comply with any terms, conditions, obligations or restrictions (including any non-compete, standstill or other limitations but excluding any remaining period of a transfer or lock-up restriction applicable at such time to other purchasers in such Preemptive Rights Issuance) not directly necessary for the effectuation of the sale or issuance of up such securities. If a Shareholder exercises its preemptive rights hereunder with respect to 200,000 shares such Preemptive Rights Issuance, the Company shall (or shall cause such subsidiary to) issue to such Shareholder (or its designated Affiliates) the number of securities specified in such Preemptive Rights Notice as soon as reasonably practicable thereafter. For the avoidance of doubt, in the event that the issuance of Common Stock to management and employees or Equity-based Securities in a Preemptive Rights Issuance involves the purchase of the Company pursuant to the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides for the issuance a package of Securities exclusively to directors, officers or employees of the Company, (iii) the issuance of shares of securities that includes Common Stock pursuant to or Equity-based Securities and other securities in the Employment Agreement and the Warrants or (iv) an issuance of Securities in consideration for and upon consummation of (x) a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority of the issued and outstanding shares of Voting Stock of the surviving entity or (y) an acquisition of assets or stock by the Company so long as, in either the case of (x) or (y)same Preemptive Rights Issuance, such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has Shareholder shall have the right to nominate directors pursuant to Section 4 hereof and the approval acquire its applicable pro rata portion of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights other securities, together with its applicable pro rata portion of such Common Stock or obligations pursuant to this Section 3 shall terminate upon an Initial Public Offering. For purposes of this Section 3Equity-based Securities, "Voting Stock" shall mean stock of the Company of any class or series entitled to vote generally in the same manner described above (as to amount, price and other terms). (c) The election of directors of the Companyby a Shareholder not to exercise its preemptive rights hereunder in any one instance shall not affect its right as to any future Preemptive Rights Issuances.

Preemptive Rights. (a) If Except for the issuance or sale of Equity Securities (i) to officers, employees, managers, directors or consultants of the Company proposes or its Subsidiaries or to issue TopCo or otherwise Transfer IncentiveCo pursuant to an incentive equity plan, agreement or arrangement approved by the Board, (ii) pursuant to an IPO, (iii) in connection with the reclassification, recapitalization, or conversion of any of the Company’s outstanding Equity Securities into another class of Equity Securities on terms made available to all holders of the same class of such outstanding Equity Securities, (iv) in connection with an acquisition of another company or business (whether by merger, recapitalization, consolidation, reorganization, combination or otherwise) by the Company or any of its Subsidiaries, (v) upon the exercise or conversion of any Options or Convertible Securities outstanding on the Effective Date or issued after the Effective Date in compliance with the provisions of this Section 9.8, (vi) any Unit split, Unit dividend or similar recapitalization, (vii) to a commercial lender or other financial institution in connection with a loan to the Company, or (viii) to any investment banking firm or placement agent for bona fide services rendered to the Company (collectively, “Exempt Equity Issuances” and each an “Exempt Equity Issuance”), if the Company authorizes the issuance or sale of any Equity Securities to any Person, then the Company shall make the offer to sell to each Rights Holder a portion of such Equity Securities equal to the quotient determined by dividing (x) the number of Class CO Units and otherwise comply Class CG Units then held by such Rights Holder by (y) the Fully-Diluted Unit Capitalization. Each Rights Holder shall be entitled to purchase such Equity Securities at the same price and on the same terms as such Equity Securities are to be offered to such Person. (b) In connection with the requirements set forth issuance or sale of any Equity Securities to which the preemptive rights described in this Section 3. Notwithstanding the foregoing9.8 apply, (A) the Company may Transfer Securitieswill deliver to each Rights Holder, and any right, title or interest therein, without making as soon as reasonably practicable under the offer circumstances giving rise to sell set forth the preemptive rights described in this Section 3 in connection with 9.8, a written notice (the “Preemptive Rights Notice”) describing (i) an Initial Public Offeringthe Equity Securities being offered, (ii) the issuance of up to 200,000 shares of Common Stock to management purchase price and employees the payment terms of the Equity Securities being offered (including the date the Company pursuant to the Company's 1997 Equity is requesting delivery of funds with respect thereto), and Performance Incentive Plan or any other incentive plan which provides for the issuance of Securities exclusively to directors, officers or employees of the Company, (iii) the issuance of shares of Common Stock pursuant such Rights Holder’s percentage allotment determined in accordance with Section 9.8(a). (c) In order to exercise its preemptive rights under this Section 9.8, each Rights Holder must deliver a written notice to the Employment Agreement and the Warrants or Company describing its election hereunder (iv) an issuance of Securities in consideration for and upon consummation of (x) a merger which election may be with respect to all or any portion of the Equity Securities it has a right to purchase hereunder) no later than ten (10) days after receipt of the Preemptive Rights Notice (the “Election Period”). (d) Notwithstanding anything to the contrary set forth herein, in lieu of offering to any Rights Holder any Equity Securities to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority of the issued and outstanding shares of Voting Stock of the surviving entity or (y) an acquisition of assets or stock by the Company so long as, preemptive rights described in either the case of (x) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, this Section 9.8 apply at the time such merger is consummatedEquity Securities are offered to any Person, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and Company may comply with the approval provisions of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights or obligations pursuant to this Section 3 shall terminate upon 9.8 by making an Initial Public Offeringoffer to sell to each such Rights Holder, at the same price and on the same terms as such Equity Securities were sold to such Person, the number of such Equity Securities that such Rights Holder would be entitled to purchase under Section 9.8(b) promptly after a sale to such Person is effected. For In such event, for all purposes of this Section 39.8, "Voting Stock" the number of such Equity Securities that each such Rights Holder shall mean stock be entitled to purchase under Section 9.8(b) shall be determined taking into consideration the actual number of Equity Securities sold to such Person so as to achieve the same economic effect as if such offer were made prior to such sale. In order to exercise its rights under this Section 9.8(d), the Company shall give notice to the Rights Holders within ten (10) days after the issuance of Equity Securities to such Person, describing (i) the Equity Securities being offered, (ii) the purchase price and the payment terms of the Equity Securities being offered (including the date the Company is requesting delivery of funds with respect thereto), and (iii) such Rights Holder’s percentage allotment determined in accordance with this Section 9.8(d). Each Rights Holder shall have twenty (20) days from the date such notice is given to elect to purchase all or any class or series portion of the Equity Securities so offered to such Rights Holder. (e) During the one hundred twenty (120)-day period following the expiration of the Election Period, the Company shall be entitled to vote generally in sell such Equity Securities which any Rights Holder has not elected to purchase prior to the election of directors expiration of the CompanyElection Period on terms and conditions (including price) no more favorable to the purchasers thereof than those offered to such Rights Holder. Any Equity Securities offered or sold by the Company to any Person after such one hundred twenty (120)-day period must be reoffered to each Rights Holder pursuant to the terms of this Section 9.8. (f) Each Rights Holder shall be entitled to assign (in whole or in part) its rights under this Section 9.8 to any Affiliate of such Rights Holder. The rights under this Section 9.8 will terminate upon the earlier to occur of (i) the consummation of an IPO and (ii) the consummation of an Approved Sale.

Preemptive Rights. (a) If Subject to Section 8.01, if the Company or AOL proposes to issue any new Equity Securities of the Company or otherwise Transfer any Securities AOL (“Proposed Issuance”) to any PersonPerson (including any Member), then the Company shall make deliver to each Member a written notice (a “Subscription Notice”) describing the offer terms of such Proposed Issuance (including a detailed description of the terms, amount and price of the Equity Securities proposed to sell be issued, and otherwise comply with other material terms, conditions and limitations of such Proposed Issuance) at least 60 calendar days prior to the requirements set forth in this Section 3closing date of such Proposed Issuance (the “Subscription Period”). Notwithstanding the foregoing, (A) the Company may Transfer Securities, and any right, title or interest therein, without making the offer no Member shall be entitled to sell set forth in exercise participation rights under this Section 3 in connection with 5.03 if the consideration for the Proposed Issuance is (i) all or substantially all of the assets of an Initial Public Offering, operating business or (ii) Equity Securities that in the issuance of up to 200,000 shares of Common Stock to management and employees of the Company pursuant to the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides for the issuance of Securities exclusively to directors, officers or employees of the Company, (iii) the issuance of shares of Common Stock pursuant to the Employment Agreement and the Warrants or (iv) an issuance of Securities in consideration for and upon consummation of (x) a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than aggregate convey a majority of the issued and outstanding shares ordinary voting power of Voting Stock an entity all or substantially all of the surviving entity or assets of which are utilized in an operating business. (yb) an acquisition Each Member shall have the option, exercisable at any time during the first 45 calendar days of assets or stock the Subscription Period by delivering a written notice (a “Participation Notice”) to the Company so long aswithin such 45 day period, to subscribe for any amount of such Equity Securities up to such Member’s existing Percentage Interest of the Equity Securities proposed to be issued in either the case Proposed Issuance on the same terms and conditions and subject to the same agreements and for the same consideration, as those of the Proposed Issuance (xsubject to the exceptions indicated in Sections 5.03(c) or and 5.03(d)). (yc) If, subject to the last sentence of Section 5.03(a), the consideration to be paid in the Proposed Issuance includes consideration other than cash, only the Google Entities shall be entitled to exercise participation rights under this Section 5.03 and may elect to pay the cash equivalent value of such transaction has been approved by non-cash consideration for the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and the approval Equity Securities. The cash equivalent value of the transaction by non-cash consideration will be determined as follows: (i) In the event that such director is required pursuant non-cash consideration consists of any publicly-traded securities, such securities shall be valued as follows: (A) if the securities are then traded on an Eligible Exchange (or a similar national quotation system), then the value of the securities shall be deemed to Section 5 hereof (a "Qualifying Acquisition") be the VWAP of the securities on such exchange or system over the 10 trading day period ending five trading days prior to the closing of the Proposed Issuance; and (B) any rights or obligations pursuant if the securities are actively traded over-the-counter, then the value of the securities shall be deemed to this Section 3 be the VWAP of the securities over the 10 trading day period ending five trading days prior to the closing of the Proposed Issuance. The Subscription Notice shall terminate upon contain an Initial Public Offering. For purposes estimate of the value to be determined in accordance with the terms of this Section 35.03(c)(i), "Voting Stock" which estimate shall mean stock be based on the same methodology described in this Section 5.03(c)(i), except that the references to “prior to the closing of the Company Proposed Issuance” shall be substituted with “prior to the date of the Subscription Notice” (and the Subscription Notice shall clearly state that such price is an estimate on that basis, and that any class participation decisions evidenced by Participation Notices shall be deemed to include an agreement to participate on the basis of a value determined in accordance with this Section 5.03(c)(i) rather than the estimate used for the Subscription Notice). (ii) Otherwise, the value of such non-cash consideration shall be determined by a nationally recognized investment banker or series entitled to vote generally in appraiser retained by the election Board of directors Managers of the Company. (d) Notwithstanding anything to the contrary contained herein, (i) if the terms and conditions of the Proposed Issuance include in any material respect any non financial requirements which would be impracticable for a Member to satisfy, then such Member will not be required to satisfy such terms and conditions; and (ii) if a Member delivers a Participation Notice within the 45 day period described in Section 5.03(b) electing to subscribe for any amount of the Equity Securities that are the subject of the Proposed Issuance, but due to required regulatory approvals or consents necessary to consummate the transaction such Member cannot lawfully purchase such Equity Securities by the date specified in the Subscription Notice, such Member and the Company shall use reasonable efforts to obtain all regulatory approvals and consents to consummate the closing of the purchase of the Equity Securities as soon as practicable and in any event within one year after receipt of the Subscription Notice. (e) Notwithstanding the foregoing, if one or more Members does not deliver a Participation Notice to the Company within the first 45 days of the Subscription Period, the Company may issue any such Equity Securities that are not subject to a Participation Notice to any Person on the same terms and conditions, subject to the same agreements and for the same consideration, as those set forth in the Subscription Notice. (f) This Section 5.03 shall terminate in the event of a Qualified Public Offering or a Qualified Distribution.

Preemptive Rights. (a) If the Company proposes to issue issue, grant or otherwise Transfer any Securities to any Personsell common stock, then preferred stock, other equity securities or Rights, the Company shall make first give to each Purchaser and any transferee of Shares from the offer Purchaser (each a "SECURITYHOLDER") written notice setting forth in reasonable detail the price and other terms on which such equity securities or Rights are proposed to sell be issued, granted or sold, the terms of any such Rights and otherwise comply with the requirements amount thereof proposed to be issued, granted or sold. Each Securityholder shall thereafter have the preemptive right, exercisable by written notice to the Company no later than 15 days after the Company's notice is given, to purchase the lesser of (i) such Securityholder's Proportionate Share of the number of such equity securities or Rights that are proposed to be issued, granted or sold and (ii) the product of: (x) the number of such equity securities or Rights that are proposed to be issued, granted or sold minus the number of such equity securities or Rights purchased by the parties to the Stockholders' Agreement pursuant to their respective preemptive rights contained in Sections 4.2 and 4.3 thereof and (y) a fraction equal to the number of Shares held by such Securityholder as of the date notice delivered pursuant to this section divided by the total number of issued and outstanding Shares held by all Securityholders. Any such purchase by any Securityholder shall be at the price and on the other terms set forth in the Company's notice. Any notice by a Securityholder exercising the right to purchase equity securities or Rights pursuant to this Section 5.1 shall constitute an irrevocable commitment to purchase from the Company the equity securities or Rights specified in such notice, subject to the maximum set forth in this paragraph. If the Securityholders exercise their preemptive rights set forth in this Section 3. Notwithstanding 5.1(a) to the foregoing, (A) the Company may Transfer Securities, and any right, title or interest therein, without making the offer to sell full extent of their rights set forth in this Section 3 in connection with (i) an Initial Public Offering5.1(a), (ii) then the issuance of up to 200,000 shares of Common Stock to management and employees closing of the purchase of equity securities or Rights by Securityholders shall take place on such date, no less than ten and no more than 60 days after the expiration of the 15-day period referred to above, as the Company pursuant may select, and the Company shall notify the Securityholders of such closing at least seven days prior thereto. If all Persons entitled thereto do not exercise their preemptive rights to the Company's 1997 Equity full extent of such preemptive rights and, as contemplated by Section 5.1(b), the Company shall issue, grant or sell equity securities or Rights to persons other than Securityholders and Performance Incentive Plan or any other incentive plan which provides for the issuance of Securities exclusively parties to directorsthe Stockholders Agreement, officers or employees then the closing of the Company, (iii) the issuance purchase of shares of Common Stock pursuant to the Employment Agreement and the Warrants such equity securities or (iv) an issuance of Securities in consideration for and upon consummation of (x) a merger with respect to which the holders of Voting Stock immediately prior to such merger beneficially own not less than a majority of the issued and outstanding shares of Voting Stock of the surviving entity or (y) an acquisition of assets or stock by the Company so long as, in either the case of (x) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, Rights shall take place at the same time as the closing of such merger is consummatedissuance, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant to Section 5 hereof (a "Qualifying Acquisition") and (B) any rights grant or obligations pursuant to this Section 3 shall terminate upon an Initial Public Offering. For purposes of this Section 3, "Voting Stock" shall mean stock of the Company of any class or series entitled to vote generally in the election of directors of the Companysale.

Preemptive Rights. (a) If In the event of any sale of equity securities of the Company proposes or any of its Subsidiaries, or any securities (including rights, options or warrants) convertible into or exchangeable or exercisable for equity securities of the Company or any of its Subsidiaries, at any time and from time to issue or otherwise Transfer any Securities to any Persontime after the date hereof, then the Company shall make first offer in writing, accompanied by a description of the offer purpose of such offering and intended uses of the proceeds from such offering, (the “Preemptive Rights Notice”) to sell and otherwise comply with to each Member in respect of its Class A Common Units a portion of such securities equal to the requirements quotient obtained by dividing (x) the sum of the number of Class A Common Units held by such Class A Common Unitholder, by (y) the sum of the total number of Class A Common Units. If all such securities are not subscribed to by Members in writing delivered to the Company within ten business days after the date of delivery of the Preemptive Rights Notice, the unsubscribed equity securities will be reoffered on the terms set forth above one or more times in writing (each, a “Reoffer Notice”) to the Members who subscribed to the maximum number to which they were entitled pursuant to the preceding offering round, and each such Member shall be entitled to purchase a pro rata share of such available securities by so notifying the Company in writing within three business days after the date of delivery of the applicable Reoffer Notice, until all such securities have been subscribed to or no Member desires to subscribe to the remaining offered securities. Each Member shall be entitled to purchase or receive such securities at the most favorable price and on the most favorable terms that such securities are to be offered to any other Person, and the Company may not offer any securities to any Person at a price or on terms more favorable to the offerees thereof than those on which such securities were offered to the Members unless such securities are first offered to the Members at such more favorable price and on such more favorable terms; provided that notwithstanding the foregoing, in the event that the Company is issuing more than one type or class of securities in connection with such issuance, each Member participating in such issuance shall be required to acquire such Member’s pro rata portion (as determined above) of all such types and classes of securities. Such securities specified in the Preemptive Rights Notice and the Reoffer Notice that are not purchased by Members pursuant to the terms of this Section 32.2(d) may be issued and sold by the Company to the offerees thereof (on terms no more favorable to the offerees than the terms offered in such Notices) within 90 days of the date of the Preemptive Rights Notice. Any securities not issued within such 90-day period will be subject to the provisions of this Section 2.2(d) upon subsequent issuance. Notwithstanding the foregoing, (A) if the Company may Transfer SecuritiesBoard determines that it should, and any right, title or interest therein, without making in the offer to sell set forth in this Section 3 in connection with (i) an Initial Public Offering, (ii) the issuance of up to 200,000 shares of Common Stock to management and employees of the Company pursuant to the Company's 1997 Equity and Performance Incentive Plan or any other incentive plan which provides for the issuance of Securities exclusively to directors, officers or employees best interests of the Company, issue equity securities that would otherwise be required to be offered under this Section 2.2(d) prior to their issuance, it may issue such equity securities without first complying with the foregoing paragraph; provided that, within thirty (iii30) days after such issuance, it offers each Member, in respect of its Class A Common Units the opportunity to purchase, on the same terms and at the same price as applicable to such issuance, the number of equity securities that would enable such Member to maintain the same Percentage Interest it had prior to the issuance of shares of Common Stock equity securities pursuant to this paragraph. If the Employment Agreement and the Warrants or (iv) an issuance of Securities in consideration for and upon consummation of (x) a merger Company makes any distribution with respect to which equity securities issued under this paragraph before the holders other Members have purchased such equity securities pursuant to this paragraph, then such other Members that purchase such equity securities shall be entitled to a proportionate distribution upon the closing of Voting Stock immediately prior to such merger beneficially own not less than a majority of the issued and purchase as if such equity securities were outstanding shares of Voting Stock of the surviving entity or (y) an acquisition of assets or stock by the Company so long as, in either the case of (x) or (y), such transaction has been approved by the affirmative vote of at least one director appointed by Nu-Tech if, at the time such merger is consummated, Nu-Tech has the right to nominate directors pursuant to Section 4 hereof and the approval of the transaction by such director is required pursuant original distribution. The Members agree that each Member shall have the right, in its, her or his sole discretion, to Section 5 hereof (a "Qualifying Acquisition") and (B) assign, on any one or more occasions, all or any portion of its, her or his rights or obligations pursuant to under this Section 3 shall terminate upon an Initial Public Offering. For purposes 2.2(d) to any one or more of this Section 3its, "Voting Stock" shall mean stock of the Company of any class her or series entitled to vote generally in the election of directors of the Companyhis Affiliates.