Common use of Private Placement Right Clause in Contracts

Private Placement Right. Notwithstanding the provisions of Section ----------------------- 2.3, in the event that (i) the Qualified IPO occurs within one (1) year from the date of this Agreement, or (ii) the rights of participation in the Qualified IPO of the IPO Holders has been waived in accordance with Section 2.3(b) hereof, then the Company agrees to sell to the IPO Holders securities of the Company at fair market value at the time of their issuance (as determined in the good faith judgment of the Board of Directors) in a private placement that as closely as practicable approximates the economic benefit of the rights of participation in the Qualified IPO (the "Private Placement Right"). In the event that the exercise of the Private Placement Right results in the IPO Holders purchasing restricted securities, no illiquidity discount shall be applied in determining the economic benefit provided and the Company shall not be required to register the resale of such restricted securities other than pursuant to the registration rights granted in Section 1.5, 1.6 and 1.7 of this Agreement; provided, however, that such securities shall be deemed Registrable Securities hereunder. Notwithstanding the foregoing, if for any reason the Company is advised by legal counsel, the SEC, the National Association of Securities Dealers, Inc., the Nasdaq Stock Market, Inc. or any other regulatory body, or any of their staffs, that the offering or sale of securities to the IPO Holders as described in this Section 2.5 is contrary to any federal or state securities laws or the rules or regulations of the SEC, the National Association of Securities Dealers, Inc., the Nasdaq Stock Market, Inc. or any other regulatory body or their staffs, the IPO Holders agree that their Private Placement Right shall be deemed waived without any further action by the IPO Holders.

Private Placement Right. Notwithstanding the provisions of Section ----------------------- 2.3, in In the event that (i) Investor is not entitled to purchase a number of shares of Common Stock in the Qualified IPO occurs within one that is equal to or greater than the number of Investor Allocated Shares (1determined in accordance with Section 2.2) year from the date because any such purchase is prevented, in whole or in part, by operation of this AgreementSection 2.6 above, or (ii) the rights number of participation Adjusted Investor Allocated Shares is less than the Investor Allocated Shares, then in either case, Investor shall instead have the right, but not the obligation (so long as Investor is an “accredited investor” within the meaning of Rule 501 under the Securities Act) to purchase from the Company, in a separate and contemporaneous private placement transaction exempt from registration with the SEC (a “Private Placement”), a number of shares of Common Stock as shall equal the difference between (x) the number of Investor Allocated Shares and (y) the number of shares of Common Stock that Investor is actually provided the opportunity to purchase (provided such number is lesser than the number of Investor Allocated Shares) in the Qualified IPO of the IPO Holders has been waived in accordance with Section 2.3(b) hereof, then the Company agrees to sell to the IPO Holders securities of the Company at fair market value at the time of their issuance (as determined in the good faith judgment of the Board of Directors) in a private placement that as closely as practicable approximates the economic benefit of the rights of participation in the Qualified IPO (the "“Private Placement Right"Shares”), at a price per share equal to the price to the public in the IPO. In the event that any such right of Investor to purchase shares in the exercise Private Placement arises, the Company shall deliver written notice to Investor containing all of the information required to be included in an Offering Notice pursuant to Section 2.3 hereto, as well as, in the event such right arose pursuant to clause (i) of Section 2.6, a summary of the basis for the Company’s conclusion that there would be any conflict with any Securities Laws and Regulations or other legal impediment or legal requirement which would prevent or materially delay the consummation of or unreasonably interfere with either the IPO or the purchase shares of Common Stock as contemplated in Sections 2.1 through 2.5 hereof (the “Private Placement Notice”). Investor shall inform the Company in writing of its desire to purchase any or all of the Private Placement Right results Shares (which indication of interest may be expressly made dependent on valuation and the pricing of the offering) or not to participate in the IPO Holders purchasing restricted securitiesPrivate Placement at all. If Investor does not so inform the Company within ten (10) business days following the date of the Private Placement Notice, no illiquidity discount then the Private Placement shall be applied in determining the economic benefit provided not occur and the Company Company, on the one hand, and Investor, on the other hand, shall not be required have no liability or obligation to register the resale of such restricted securities other than pursuant one another in connection therewith. Notwithstanding anything to the registration rights granted contrary contained in Section 1.5, 1.6 and 1.7 of this Agreement; provided, howeverin the event that any such Private Placement would, that such in the Company’s reasonable judgment, based on the advice of securities shall counsel for the Company and concurred in by counsel for the managing underwriters, be deemed Registrable invalid as a private placement under Section 4(a)(2) of the Securities hereunder. Notwithstanding the foregoing, if Act for any reason (including but not limited to by reason of the Company is advised by legal counsel, doctrine of “integration” with the SEC, the National Association of IPO) or would otherwise conflict with any Securities Dealers, Inc., the Nasdaq Stock Market, Inc. Laws and Regulations or give rise to any other regulatory bodylegal impediment or legal requirement that would prevent or materially delay the consummation of or unreasonably interfere with the IPO, then the Private Placement shall not occur and the Company, on the one hand, and Investor, on the other hand, shall have no liability or any of their staffs, that obligation to one another in connection therewith. Investor shall be entitled to apportion the offering or sale of securities rights granted pursuant to the IPO Holders as described in this Section 2.5 is contrary to any federal or state securities laws or the rules or regulations of the SEC, the National Association of Securities Dealers, Inc., the Nasdaq Stock Market, Inc. or any other regulatory body or their staffs, the IPO Holders agree that their Private Placement Right shall be deemed waived without any further action by the IPO Holders2.7 among itself and its Affiliates in such proportions as it deems appropriate.

Private Placement Right. Notwithstanding the provisions of Section ----------------------- 2.3, in In the event that (i) the Investor is not entitled to purchase a number of shares of Common Stock in the Qualified IPO occurs within one Initial Public Offering that is equal to or greater than the number of Adjusted Investor Maximum Allocated Shares (1determined in accordance with Section 1.2) year from the date because any such purchase is prevented, in whole or in part, by operation of this AgreementSection 1.6 above, or (ii) the rights number of participation Adjusted Investor Maximum Allocated Shares is less than the Allocation Minimum, then in either case, the Investor shall instead have the right, but not the obligation (so long as the Investor is an “accredited investor” within the meaning of Rule 501 under the Act) to purchase from the Company, in a separate and contemporaneous private placement transaction exempt from registration with the SEC (a “Private Placement”), a number of shares of Common Stock as shall equal the difference between (x) the number of Investor Maximum Allocated Shares and (y) the number of shares of Common Stock that the Investor actually purchases in the Qualified IPO of Initial Public Offering (the IPO Holders has been waived in accordance with Section 2.3(b) hereof“Private Placement Shares”), then the Company agrees to sell at a price per share equal to the IPO Holders securities of price to the Company at fair market value at the time of their issuance (as determined in the good faith judgment of the Board of Directors) in a private placement that as closely as practicable approximates the economic benefit of the rights of participation public in the Qualified IPO (the "Private Placement Right")Initial Public Offering. In the event that any such right of the exercise Investor to purchase shares in the Private Placement arises, the Company shall deliver written notice to the Investor containing all of the information required to be included in an Offering Notice pursuant to Section 1.3 hereto, as well as, in the event such right arose pursuant to clause (i) of Section 1.6, a summary of the basis for the Company’s conclusion that there would be any conflict with any Securities Laws and Regulations or other legal impediment or legal requirement which would prevent or materially delay the consummation of or unreasonably interfere with either the Qualified Initial Public Offering or the purchase shares of Common Stock as contemplated in Sections 1.1 through 1.5 hereof (the “Private Placement Notice”). The Investor shall inform the Company in writing of its desire to purchase all of the Private Placement Right results Shares or not to participate in the IPO Holders purchasing restricted securitiesPrivate Placement at all. If the Investor does not so inform the Company within five business days following the date of the Private Placement Notice, no illiquidity discount then the Private Placement shall be applied in determining the economic benefit provided not occur and the Company Company, on the one hand, and the Investor, on the other hand, shall not be required have no liability or obligation to register the resale of such restricted securities other than pursuant one another in connection therewith. Notwithstanding anything to the registration rights granted contrary contained in Section 1.5, 1.6 and 1.7 of this Agreement; provided, howeverin the event that any such Private Placement would, that such in the Company’s reasonable judgment, based on the advice of securities shall counsel for the Company and concurred in by counsel for the managing underwriters, be deemed Registrable Securities hereunder. Notwithstanding invalid as a private placement under the foregoing, if Act for any reason (including but not limited to by reason of the Company is advised by legal counsel, doctrine of “integration” with the SEC, the National Association of Qualified Initial Public Offering) or would otherwise conflict with any Securities Dealers, Inc., the Nasdaq Stock Market, Inc. Laws and Regulations or give rise to any other regulatory bodylegal impediment or legal requirement that would prevent or materially delay the consummation of or unreasonably interfere with the Qualified Initial Public Offering, then the Private Placement shall not occur and the Company, on the one hand, and the Investor, on the other hand, shall have no liability or any of their staffs, that obligation to one another in connection therewith. The Investor shall be entitled to apportion the offering or sale of securities rights granted pursuant to the IPO Holders as described in this Section 2.5 is contrary to any federal or state securities laws or the rules or regulations of the SEC1.7 among itself and its partners, the National Association of Securities Dealers, Inc., the Nasdaq Stock Market, Inc. or any Affiliates and other regulatory body or their staffs, the IPO Holders agree that their Private Placement Right shall be deemed waived without any further action by the IPO Holdersaforementioned persons in such proportions as it deems appropriate.

Private Placement Right. Notwithstanding the foregoing, in the event that, (i) by reason of the provisions of Section ----------------------- 2.31 above, there would be any conflict with any Securities Laws or other legal impediment or requirement which would prevent or materially delay the consummation of or unreasonably interfere with either the IPO or the purchase of Directed Shares as contemplated in the event that (i) the Qualified IPO occurs within one (1) year from the date of this Agreement, Section 1 above or (ii) the rights of participation in the Qualified IPO shall occur within one year of the IPO Holders has been waived in accordance with Section 2.3(b) date hereof, then neither Crosslink nor TCV shall have any rights under Section 1 above and each of Crosslink and TCV (so long as such Investor is an "accredited investor" within the Company agrees meaning of Rule 501 under the Securities Act of 1933, as amended (the "Securities Act")) shall be entitled to sell purchase or direct to the IPO Holders securities any of the Company at fair market value at Investor Affiliates (so long as each of such Investor Affiliates to whom Crosslink or TCV, respectively, so directs any shares is an "accredited investor" within the time meaning of their issuance (as determined in Rule 501 under the good faith judgment of the Board of Directors) Securities Act), in a separate private placement that as closely as practicable approximates may be conducted, in whole or in part, concurrently with the economic benefit of the rights of participation in the Qualified IPO (the "Private Placement RightPlacement"), up to a number of shares of Common Stock (the "Private Placement Shares"), at the same net price (net of underwriting discounts and commissions in the IPO) as shall equal the number of Directed Shares. In The Private Placement Shares shall be deemed to be "Restricted Stock" pursuant to the terms of the Registration Rights Agreement. Anything herein to the contrary notwithstanding, (i) in the event that the exercise of the such a Private Placement Right results in the IPO Holders purchasing restricted securities, no illiquidity discount shall be applied in determining the economic benefit provided and the Company shall not be required to register the resale of such restricted securities other than pursuant to the registration rights granted in Section 1.5, 1.6 and 1.7 of this Agreement; provided, however, that such securities shall would be deemed Registrable invalid as a private placement under the Securities hereunder. Notwithstanding the foregoing, if Act for any reason (including but not limited to by reason of the doctrine of "integration" with the IPO) or would otherwise conflict with any Securities Laws or give rise to any other legal impediment or requirement that would prevent or materially delay the consummation of or unreasonably interfere with the IPO, then the Company, Crosslink and TCV shall negotiate in good faith and agree to an alternative private placement of securities of the Company, with such alternative private placement to be for such securities, to close at such time and to be on such other terms and conditions as shall carry out to the extent reasonably practicable the intended purpose and intent of this Section 2 without being invalid as a private placement under the Securities Act for any reason (including but not limited to by reason of the doctrine of "integration" with the IPO) or otherwise conflicting with any Securities Laws or giving rise to any other legal impediment or requirement that would prevent or materially delay the consummation of or unreasonably interfere with the IPO; (ii) the closing of any Private Placement or any alternative private placement under this Section 2 shall be conditioned, in any event, upon the completion of the IPO; and (iii) the Company is advised by legal counsel, the SEC, the National Association of Securities Dealers, Inc., the Nasdaq Stock Market, Inc. or may withdraw any other regulatory body, or registration statement for an IPO at any time without thereby incurring any liability to any of their staffsCrosslink, that the offering or sale of securities to the IPO Holders as described in this Section 2.5 is contrary to any federal or state securities laws TCV or the rules or regulations of the SEC, the National Association of Securities Dealers, Inc., the Nasdaq Stock Market, Inc. or any other regulatory body or their staffs, the IPO Holders agree that their Private Placement Right shall be deemed waived without any further action by the IPO HoldersInvestor Affiliates.