Right of First Refusal Unless it shall have first delivered to the Buyer, at least seventy two (72) hours prior to the closing of such Future Offering (as defined herein), written notice describing the proposed Future Offering, including the terms and conditions thereof, and providing the Buyer an option during the seventy two (72) hour period following delivery of such notice to purchase the securities being offered in the Future Offering on the same terms as contemplated by such Future Offering (the limitations referred to in this sentence and the preceding sentence are collectively referred to as the “Right of First Refusal”) (and subject to the exceptions described below), the Company will not conduct any equity financing (including debt with an equity component) (“Future Offerings”) during the period beginning on the Closing Date and ending twelve (12) months following the Closing Date. In the event the terms and conditions of a proposed Future Offering are amended in any respect after delivery of the notice to the Buyer concerning the proposed Future Offering, the Company shall deliver a new notice to the Buyer describing the amended terms and conditions of the proposed Future Offering and the Buyer thereafter shall have an option during the seventy two (72) hour period following delivery of such new notice to purchase its pro rata share of the securities being offered on the same terms as contemplated by such proposed Future Offering, as amended. The foregoing sentence shall apply to successive amendments to the terms and conditions of any proposed Future Offering. The Right of First Refusal shall not apply to any transaction involving (i) issuances of securities in a firm commitment underwritten public offering (excluding a continuous offering pursuant to Rule 415 under the 1933 Act), (ii) issuances to employees, officers, directors, contractors, consultants or other advisors approved by the Board, (iii) issuances to strategic partners or other parties in connection with a commercial relationship, or providing the Company with equipment leases, real property leases or similar transactions approved by the Board (iv) issuances of securities as consideration for a merger, consolidation or purchase of assets, or in connection with any strategic partnership or joint venture (the primary purpose of which is not to raise equity capital), or in connection with the disposition or acquisition of a business, product or license by the Company. The Right of First Refusal also shall not apply to the issuance of securities upon exercise or conversion of the Company’s options, warrants or other convertible securities outstanding as of the date hereof or to the grant of additional options or warrants, or the issuance of additional securities, under any Company stock option or restricted stock plan approved by the shareholders of the Company.
Right of First Offer In the event a Member desires to Transfer all or any part of its Interest, such Members (the “Selling Member”) shall first deliver a written notice (the “Section 11.1 Notice”) to the other Member (the “Second Member”) which notice shall specify the portion of the Selling Member’s Interest to be sold (the “Offered Interest”). Within thirty (30) days after its receipt of the Section 11.1 Notice, the Second Member shall have the right to offer to purchase (the “First Offer”) all, but not less than all, the Offered Interest at a price payable only in case (the “First Offer Price”) and on such other terms and conditions as shall be set forth in the First Offer. Within thirty (30) days after its receipt of the First Offer, the Selling Members shall either accept or reject the First Offer. If the Selling Member accepts the First Offer, the Selling Member shall sell, and the Second Member shall purchase, the Offered Interest at a closing to be held at a time not later than sixty (60) days (or such longer period, if any, pending any necessary Regulatory Approval or removal of Liens) after the Selling Member’s acceptance of the First Offer and at such location as may be mutually agreed upon, at which time the Offered Interest shall be delivered, free and clear of all Liens which may have been imposed on the Offered Interest and are not connected with the financing or operation of the Company itself, against payment of the First Offer Price. In order to comply with applicable regulatory requirements, the purchasing Member may designate (i) a third party to purchase any portion of the Offered Interest which the purchasing Member has committed to purchase hereunder if the Offered Interest constitutes all of the Selling Member’s equity and debt interest in the Company, or (ii) a third party reasonably acceptable to the Selling Member to purchase any portion of the Offered Interest which the purchasing Member has committed to purchase hereunder if the Offered Interest constitutes less than all of the Selling Member’s equity and debt interest in the Company. If the Selling Member rejects or does not timely accept the First Offer, then the Selling Member shall have one hundred and twenty (120) days (or such longer period, if any, required to obtain any necessary Regulatory Approval or to remove any Liens) following such rejection within which to consummate the sale of the Offered Interest at a price per share in cash greater than the First Offer Price and in all other respects upon terms and conditions no less favorable than those specified in the First Offer. If no such sale occurs within such 120-day period (or longer period as described above), the Offered Interest shall again be subject to all of the restrictions set forth in this Section 11.1(b).
