Common use of Pro Rata Right Clause in Contracts

Pro Rata Right. The Company hereby grants to each Investor, for so long as the Investors as a class are holders of shares of Preferred Stock convertible into at least five percent (5%) of the outstanding Common Stock on a fully diluted basis, or own, as a class, at least five percent (5%) of the outstanding Common Stock on a fully diluted basis, the right of first refusal to purchase, pro rata, all New Securities (as defined in Section 8.2 below) which the Company may, from time to time, propose to sell and/or issue. An Investor's pro rata share is a ratio (A) the numerator of which is the number of shares of Common Stock issued or issuable upon conversion of the shares of Preferred Stock held by such Investor, and (B) the denominator of which is the total number of shares of Common Stock outstanding immediately prior to the issuance of the New Securities assuming the conversion or exercise of all then outstanding convertible securities (including the shares of Preferred Stock), options, warrants or similar rights to acquire Common Stock and assuming the issuance of all then unissued permitted employee shares (consistent with Article Fourth of the Restated Certificate of Incorporation of the Company, as in effect on the date hereof) (the "Pro Rata Share"). For purposes of this Section 8.1, the number of shares of Preferred Stock held by such Investor shall be determined as of the date of the Company's written notice pursuant to Section 8.3 below. Each Investor shall have a right of over-allotment such that if any other Investor or any holder of Common Stock having rights of first refusal with respect to New Securities (together with the Investors, the "Holders") fails to exercise its rights hereunder to purchase its Pro Rata Share of New Securities, the other Holders may purchase each non-purchasing Holder's portion on a pro rata basis within fifteen (15) days from the date such non-purchasing Holder fails to exercise its right. This right of first refusal shall be subject to all of the provisions of this Section 8.

Pro Rata Right. The Company hereby grants to each Investor, for so long as the Investors as a class are holders holder of shares of Series B Preferred Stock convertible into at least five percent (5%) of the outstanding Common Stock on a fully diluted basis, or own, as a class, at least five percent (5%) of the outstanding Common Stock on a fully diluted basis, the right of first refusal to purchase, pro rata, rata all New Securities (as defined in Section 8.2 below8.2) which the Company may, from time to time, propose to sell and/or issue. An Investor's pro rata share share, for purposes of this right of first refusal, is a ratio of (A) the numerator of which is the aggregate of the number of shares of Common Stock (i) issued or issuable upon conversion of the shares of Series B Preferred Stock held by such InvestorInvestor on the date of the Company's written notice pursuant to Section 8.3; or (ii) otherwise held by such Investor on the date of the Company's written notice pursuant to Section 8.3, and (B) the denominator of which is the total number of shares of Common Stock outstanding immediately prior to the issuance of the New Securities Securities, assuming the conversion or exercise of all then outstanding convertible securities (including the shares of Preferred Stock)securities, options, warrants or similar rights to acquire Common Stock (including without limitation the Series A Preferred Stock and Series B Preferred Stock) and assuming the issuance of all then unissued permitted employee shares (consistent with Article Fourth of the Restated Certificate of Incorporation of the Company, as in effect on the date hereof) (the "Pro Rata Share"). For purposes of this Section 8.1, the number of shares of Series B Preferred Stock and Common Stock held by such Investor shall be determined as of the date of the Company's written notice pursuant to Section 8.3 below8.3. Each Investor shall have a right of over-allotment such that if any other Investor or any holder of Common Stock having rights of first refusal with respect to New Securities (together with the Investors, the "Holders") fails to exercise its rights or his right hereunder to purchase its or his Pro Rata Share of New Securities, the other Holders such holders may purchase each non-purchasing Holderholder's portion on a pro rata basis within fifteen (15) 15 days from the date such non-purchasing Holder holder fails to exercise its right. This pre-emptive right of first refusal shall be subject to all of the provisions of this Section 8.

Pro Rata Right. The Company hereby grants to each Investorholder of Preferred Stock, for so long as such holder is a Substantial Holder, and hereby also grants to the Investors Founder, so long as he is a class are holders of shares of Preferred Stock convertible into at least five percent (5%) of the outstanding Common Stock on a fully diluted basis, or own, as a class, at least five percent (5%) of the outstanding Common Stock on a fully diluted basisSubstantial Holder, the right of first refusal to purchase, pro rata, all New Securities (as defined in Section 8.2 below8.2) which the -------- ----------- Company may, from time to time, propose to sell and/or issue. An Investor's or the Founder's pro rata share share, for purposes of this right of first refusal, is a --- ---- ratio (A) the numerator of which is the aggregate of the number of shares of Common Stock (i) issued or issuable upon conversion of the shares of Series A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock held by such Investor, or the Founder, as the case may be, on the date of the Company's written notice pursuant to Section 8.3; or (ii) otherwise held by such Investor or the Founder, ----------- as the case may be, on the date of the Company's written notice pursuant to Section 8.3, and (B) the denominator of which is the total number of shares of ----------- Common Stock outstanding immediately prior to the issuance of the New Securities Securities, assuming the conversion or exercise of all then outstanding convertible securities (including the shares of Preferred Stock)securities, options, warrants or similar rights to acquire Common Stock (including without limitation to Series A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock) and assuming the issuance of all then unissued permitted employee shares (consistent with Article Fourth FOURTH 4.5(b) of the Restated Certificate of Incorporation of the Company, as in effect on the date hereof) (the "Pro Rata Share"). For purposes of this Section 8.1, the number ----------- of shares of Series C Preferred Stock, Series B Preferred Stock, Series A Preferred Stock and Common Stock held by such Investor or the Founder, as the case may be, shall be determined as of the date of the Company's written notice pursuant to Section 8.3 below8.3. Each Investor or the Founder, as the case may be, ----------- shall have a right of over-allotment such that if any other Investor or any holder of Common Stock having the Founder rights of first refusal with respect to New Securities (together with the Investors, the "Holders") fails to exercise its rights or his right hereunder to purchase its or his Pro Rata Share of New Securities, the other Holders such holders may purchase each non-purchasing Holderholder's portion on a pro rata --- ---- basis within fifteen (15) days from the date such non-purchasing Holder holder fails to exercise its right. This pre-emptive right of first refusal shall be subject to all of the provisions of this Section 8.. ---------

Pro Rata Right. The Company hereby grants to each Investor, for so long as the Investors as a class are holders holder of shares of Series C Preferred Stock convertible into at least five percent (5%) of the outstanding Common Stock on a fully diluted basis, or own, as a class, at least five percent (5%) of the outstanding Common Stock on a fully diluted basis, the right of first refusal to purchase, pro rata, rata all New Securities (as defined in Section 8.2 below8.2) which the Company may, from time to time, propose to sell and/or issue. An Investor's pro rata share share, for purposes of this right of first refusal, is a ratio of (A) the numerator of which is the aggregate of the number of shares of Common Stock (i) issued or issuable upon conversion of the shares of Series C Preferred Stock held by such InvestorInvestor on the date of the Company's written notice pursuant to Section 8.3; or (ii) otherwise held by such Investor on the date of the Company's written notice pursuant to Section 8.3 assuming the conversion or exercise of all then outstanding con vertible securities, options, warrants or similar rights to acquire Common Stock (including with out limitation the Series A Preferred Stock and Series B Preferred Stock), and (B) the denominator of which is the total number of shares of Common Stock outstanding immediately prior to the issuance of the New Securities Securities, assuming the conversion or exercise of all then outstanding convertible securities (including the shares of Preferred Stock)con vertible securities, options, warrants or similar rights to acquire Common Stock (including with out limitation the Series A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock) and assuming the issuance of all then unissued permitted employee shares (consistent with Article Fourth of the Restated Certificate of Incorporation of the Company, as in effect on the date hereof) (the "Pro Rata ShareShares"). For purposes of this Section 8.18.1 , the number of shares of Series C Preferred Stock and Common Stock held by such Investor shall be determined as of the date of the Company's written writ ten notice pursuant to Section 8.3 below8.3. Each Investor shall have a right of over-allotment such that if any other Investor or any holder of Common Stock having rights of first refusal with respect to New Securities (together with the Investors, the "Holders") fails to exercise its rights or his right hereunder to purchase its or his Pro Rata Share of New Securities, the other Holders such holders may purchase each non-purchasing Holderholder's portion on a pro rata basis within fifteen (15) 15 days from the date such non-purchasing Holder holder fails to exercise its right. This pre-emptive right of first refusal shall be subject to all of the provisions of this Section 8.