Common use of RIGHT OF FIRST REFUSAL ON NEW ISSUANCES Clause in Contracts

RIGHT OF FIRST REFUSAL ON NEW ISSUANCES. (a) If, at any time prior to the termination of this right of first refusal pursuant to subsection 2.8(f), the Company should desire to issue in a transaction not registered under the Securities Act in reliance upon a claimed exemption thereunder, any Equity Securities (as hereinafter defined), it shall give each Holder the first right to purchase such Holder's pro rata share (or any part thereof) of all of such privately offered Equity Securities on the same terms as the Company is willing to sell such Equity Securities to any other person. Each Holder's pro rata share of the Equity Securities shall be equal to that percentage of the outstanding Common Stock of the Company held by such Holder on the date hereof. For purposes of this subsection 2.8, the outstanding Common Stock of the Company shall consist of (i) outstanding shares of Common Stock, and (ii) shares of Common Stock issued or issuable upon conversion of any then outstanding Preferred Stock of the Company. (b) Prior to any sale or issuance by the Company of any Equity Securities, the Company shall notify each Holder in writing of its intention to sell and issue such securities, setting forth the terms under which it proposes to make such sale. Within thirty (30) days after receipt of such notice, each Holder shall notify the Company whether such Holder desires to exercise the option to purchase such Holder's pro rata share (or any part thereof) of the Equity Securities so offered. If a Holder elects to purchase such Holder's pro rata share, then such Holder shall have a right of over-allotment such that if any other Holder fails to purchase such Holder's pro rata share of the Equity Securities, such Holder(s) who have elected to purchase their pro rata shares may purchase, on a pro rata basis, that portion of the Equity Securities which such other Holders elected not to purchase. (c) After termination of the thirty (30) day period specified in subsection 2.8(b) above, the Company may, during a period of sixty (60) days following the end of such thirty (30) day period, sell and issue such Equity Securities as to which the Holders do not indicate a desire to purchase to another person as well as those additional shares of Equity Securities it originally intended to issue to other persons, upon the same terms and conditions as those set forth in the notice to the Holders. In the event the Company has not sold the Equity Securities, or has not entered into an agreement to sell the Equity Securities, within said sixty (60) day period, the Company shall not thereafter issue or sell any Equity Securities without first offering such securities to the Holders in the manner provided above. (d) If a Holder gives the Company notice that such Holder desires to purchase any of the Equity Securities offered by the Company, payment for the Equity Securities shall be by check, or wire transfer, against delivery of the Equity Securities at the executive offices of the Company within ten (10) days after giving the Company such notice, or, if later, the closing date for the sale of such Equity Securities. The Company shall take all such action as may be required by any regulatory authority in connection with the exercise by a Holder of the right to purchase Equity Securities as set forth in this subsection 2.8. (e) The right of first refusal contained in this Section 2 shall not apply to the issuance by the Company of Equity Securities (i) of up to 2,647,807 shares of Common Stock reserved for issuance to employees, consultants, directors or officers of the Company pursuant to stock grant, stock purchase and/or stock option plans or any other stock incentive program, agreement or arrangement approved by the Board of Directors (including approval by the Series A, Series B and Series C Preferred designees), (ii) as part of an acquisition by the Company of all or substantially all of the assets or shares of another company or entity whether through a merger, exchange, reorganization or the like approved by Board of Directors (including approval by the Series A, Series B and Series C Preferred designees), (iii) pursuant to equipment financing or leasing arrangements or in connection with strategic partnering transactions approved by the Company's Board of Directors (including approval by the Series A, Series B and Series C Preferred designees), (iv) shares of Series C Preferred Stock sold pursuant to the Series C Agreement after the Initial Closing (as defined therein), (v) issued upon conversion of the Preferred Shares, (vi) issued in connection with any stock split, stock dividend, recapitalization or similar event approved by Board of Directors (including approval by the Series A, Series B and Series C Preferred designees) or (vii) issued in connection with the IPO (as defined in subsection 1.2 above) approved by Board of Directors. (f) The right of first refusal contained in this subsection 2.8 shall terminate upon the closing of the IPO (as defined in subsection 1.2 above). (g) The term "Equity Securities" shall mean (i) Common Stock, rights, options or warrants to purchase Common Stock; (ii) any security other than Common Stock having voting rights in the election of the Board of Directors, not contingent upon a failure to pay dividends; (iii) any security convertible into or exchangeable for any of the foregoing; and (iv) any agreement or commitment to issue any of the foregoing.

RIGHT OF FIRST REFUSAL ON NEW ISSUANCES. (a) If, at any time prior to the termination of this right of first refusal pursuant to subsection 2.8(fSection 2.6(f), the Company should desire to issue in a transaction not registered under the Securities Act in reliance upon a claimed exemption thereunder, any Equity Securities (as hereinafter defined), it shall give each Holder of at least 500,000 Preferred Shares (as adjusted for any Recapitalization Event) (each, a "Qualified First Refusal Holder") the first right to purchase such Qualified First Refusal Holder's pro rata share (or any part thereof) of all of such privately offered Equity Securities on the same terms as the Company is willing to sell such Equity Securities to any other person. Each Qualified First Refusal Holder's pro rata share of the Equity Securities shall be equal to that percentage of the outstanding Common Stock of the Company held by such Qualified First Refusal Holder on the date hereof. For purposes of this subsection 2.8Section 2.6, the outstanding Common Stock of the Company shall consist of include (i) outstanding shares of Common Stock, Stock and (ii) shares of Common Stock issued or issuable upon conversion of any then outstanding Preferred Stock of the Company. (b) Prior to any sale or issuance by the Company of any Equity Securities, the Company shall notify each Qualified First Refusal Holder in writing of its intention to sell and issue such securities, setting forth the terms under which it proposes to make such sale. Within thirty (30) days after receipt of such notice, each Qualified First Refusal Holder shall notify the Company whether such Qualified First Refusal Holder desires to exercise the option to purchase such Qualified First Refusal Holder's pro rata share (or any part thereof) of the Equity Securities so offered. If a Qualified First Refusal Holder elects to purchase such Qualified First Refusal Holder's pro rata share, then such Qualified First Refusal Holder shall have a right of over-allotment such that if any other Qualified First Refusal Holder fails to purchase such Qualified First Refusal Holder's pro rata share of the Equity Securities, Securities the Company shall provide notice to each Qualified First Refusal Holder of such right and any such Qualified First Refusal Holder(s) who have elected to purchase their pro rata shares may will have ten (10) days to give notice of its intent to purchase, on a pro rata basis, that portion of the Equity Securities which such other Holders Qualified First Refusal Holder elected not to purchase. (c) After termination of the thirty forty (3040) day period specified in subsection 2.8(bSection 2.6(b) above, the Company may, during a period of sixty (60) days following the end of such thirty forty (3040) day period, sell and issue such Equity Securities as to which the Qualified First Refusal Holders do not indicate a desire to purchase to another person as well as those additional shares of Equity Securities it originally intended to issue to other persons, upon the same terms and conditions as those set forth in the notice to the Qualified First Refusal Holders. In the event the Company has not sold the Equity Securities, or has not entered into an agreement to sell the Equity Securities, within said sixty (60) day period, the Company shall not thereafter issue or sell any Equity Securities without first offering such securities to the Qualified First Refusal Holders in the manner provided above. (d) If a Qualified First Refusal Holder gives the Company notice that such Qualified First Refusal Holder desires to purchase any of the Equity Securities offered by the Company, payment for the Equity Securities shall be by check, or wire transfer, against delivery of the Equity Securities at the executive offices of the Company within ten fifteen (1015) business days after giving the Company such notice, or, if later, the closing date for the sale of such Equity Securities. The Company shall take all such action as may be required by any regulatory authority in connection with the exercise by a Qualified First Refusal Holder of the right to purchase Equity Securities as set forth in this subsection 2.8Section 2.6. (e) The right of first refusal contained in this Section 2 2.6 shall not apply to the issuance by the Company of Equity Securities (i) of up issued or granted to 2,647,807 shares of Common Stock reserved for issuance to employeesofficers, consultantsdirectors, directors employees or officers consultants of the Company and its subsidiaries pursuant to any stock grant, stock purchase and/or stock option plans or any other stock incentive program, agreement or arrangement approved by the Board of Directors (including approval by the Series A, Series B and Series C Preferred designees), (ii) as part of an acquisition by the Company of all or substantially all of the assets or shares of another company or entity whether through a merger, exchange, reorganization or the like approved by Board of Directors (including approval by the Series A, Series B and Series C Preferred designees), (iii) pursuant to equipment financing or leasing arrangements or in connection with strategic partnering transactions approved by the Company's Board of Directors not in excess of 6,297,197 shares in the aggregate, (including approval by ii) issued pursuant to transactions described in Article IV Section 2(e)(1) of the Series ACompany's Amended and Restated Certificate of Incorporation, Series B and Series C as amended from time to time, (iii) issued upon conversion of the Company's Preferred designees)Stock, (iv) shares of Series C Preferred Stock sold pursuant issued (A) to the Series C Agreement after Company's vendors or service providers, (B) in conjunction with an equipment lease financing, debt financing, licensing or acquisition transaction that is approved by the Initial Closing Company's Board of Directors or (as defined thereinC) to companies or entities with whom the Company has business relationships, in any such case not to exceed in the aggregate twenty-five percent (25%) of the then current maximum number of shares reserved for issuance under the Company's option plan(s), (v) issued upon conversion of pursuant to the Preferred SharesExchange Agreement, (vi) up to 17,000,000 shares of Series B Preferred Stock issued in connection conjunction with the acquisition of Vpacket Communications, Inc. and any stock split, stock dividend, recapitalization or similar event approved by Board subsequent follow-on rights offering of Directors (including approval by the Series A, Series B and Series C Preferred designees) Stock or (vii) issued in connection with the IPO (as defined in subsection 1.2 above) approved by Board conversion of DirectorsEquity Securities not subject to this right of first refusal. (f) The right of first refusal contained in this subsection 2.8 Section 2.6 shall terminate upon the closing of the IPO (as defined in subsection 1.2 above)a Qualified IPO. (g) The term "Equity Securities" shall mean (i) Common Stock, Stock and rights, options or warrants to purchase Common Stock; , (ii) any security other than Common Stock having voting rights in the election of the Board of Directors, not contingent upon a failure to pay dividends; , (iii) any security convertible into or exchangeable for any of the foregoing; foregoing and (iv) any agreement or commitment to issue any of the foregoing.

RIGHT OF FIRST REFUSAL ON NEW ISSUANCES. (a) If, at any time prior to the termination of this right of first refusal pursuant to subsection 2.8(f2.6(f), the Company should desire to issue in a transaction not registered under the Securities Act in reliance upon a claimed exemption thereunder, any Equity Securities (as hereinafter defined), it shall give each Series B Holder that holds at least 375,000 Series B Shares or shares of Common Stock issued or issuable upon conversion of such Series B Shares (as adjusted for stock dividends, stock splits recapitalizations and the like), each Series C Holder that holds at least 375,000 Series C Shares or shares of Common Stock issued or issuable upon conversion of such Series C Shares (as adjusted for stock dividends, stock splits recapitalizations and the like), and each Series A Holder (each a "Qualified Participant") the first right to purchase such HolderQualified Participant's pro rata share (or any part thereof) of all of such privately offered Equity Securities on the same terms as the Company is willing to sell such Equity Securities to any other person. Each HolderQualified Participant's pro rata share of the Equity Securities shall be equal to that percentage of the outstanding Common Stock of the Company held by such Holder Qualified Participant on the date hereof. For purposes of this subsection 2.82.7, the outstanding Common Stock of the Company shall consist of include (i) outstanding shares of Common Stock, and (ii) shares of Common Stock issued or issuable upon conversion of any then outstanding Preferred Stock of the Company. (b) Prior to any sale or issuance by the Company of any Equity Securities, the Company shall notify each Holder Qualified Participant in writing of its intention to sell and issue such securities, setting forth the terms under which it proposes to make such sale. Within thirty (30) days after receipt of such notice, each Holder Qualified Participant shall notify the Company whether such Holder Qualified Participant desires to exercise the option to purchase such HolderQualified Participant's pro rata share (or any part thereof) of the Equity Securities so offered. If a Holder Qualified Participant elects to purchase such HolderQualified Participant's pro rata share, then such Holder Qualified Participant shall have a right of over-allotment such that if any other Holder Qualified Participant fails to purchase such HolderQualified Participant's pro rata share of the Equity Securities, such Holder(sQualified Participant(s) who have elected to purchase their pro rata shares may purchase, on a pro rata basis, that portion of the Equity Securities which such other Holders Qualified Participants elected not to purchase. (c) After termination of the thirty (30) day period specified in subsection 2.8(b2.7(b) above, the Company may, during a period of sixty (60) days following the end of such thirty (30) day period, sell and issue such Equity Securities as to which the Holders Qualified Participants do not indicate a desire to purchase to another person as well as those additional shares of Equity Securities it originally intended to issue to other persons, upon the same terms and conditions as those set forth in the notice to the HoldersQualified Participants. In the event the Company has not sold the Equity Securities, or has not entered into an agreement to sell the Equity Securities, within said sixty (60) day period, the Company shall not thereafter issue or sell any Equity Securities without first offering such securities to the Holders Qualified Participants in the manner provided above. (d) If a Holder Qualified Participant gives the Company notice that such Holder Qualified Participant desires to purchase any of the Equity Securities offered by the Company, payment for the Equity Securities shall be by check, or wire transfer, against delivery of the Equity Securities at the executive offices of the Company within ten (10) days after giving the Company such notice, or, if later, the closing date for the sale of such Equity Securities. The Company shall take all such action as may be required by any regulatory authority in connection with the exercise by a Holder Qualified Participant of the right to purchase Equity Securities as set forth in this subsection 2.82.7. (e) The right of first refusal contained in this Section 2 shall not apply to the issuance by the Company of Equity Securities (i) of up to 2,647,807 1,285,691 shares of Common Stock reserved for issuance to employees, consultants, directors or officers of the Company pursuant to stock grant, stock purchase and/or stock option plans or any other stock incentive program, agreement or arrangement approved by the Board of Directors (including approval by the Series A, Series B and Series C Preferred designees)Directors, (ii) of up to 7,514,309 shares of Common Stock reserved for the exercise of outstanding options to purchase Common Stock issued pursuant to stock option plans, (iii) as part of an acquisition by the Company of all or substantially all of the assets or shares of another company or entity whether through a merger, exchange, reorganization or the like approved by Board of Directors (including approval by the Series A, Series B and Series C Preferred designees)like, (iiivi) pursuant to equipment financing or leasing arrangements or in connection with strategic partnering transactions approved by the Company's Board of Directors (including approval by the Series A, Series B and Series C Preferred designees), (iv) shares of Series C Preferred Stock sold pursuant to the Series C Agreement after the Initial Closing (as defined therein)Directors, (v) issued upon conversion of the Preferred Series A Shares, Series B Shares or Series C Shares (vi) issued in connection with any stock split, stock dividend, recapitalization or similar event approved by Board of Directors (including approval by the Series A, Series B and Series C Preferred designees) or (vii) issued in connection with the IPO (as defined in subsection 1.2 above) approved by Board of Directors). (f) The right of first refusal contained in this subsection 2.8 2.7 shall terminate upon the closing of the IPO (as defined in subsection 1.2 above). (g) The term "Equity Securities" shall mean (i) Common Stock, rights, options or warrants to purchase Common Stock; (ii) any security other than Common Stock having voting rights in the election of the Board of Directors, not contingent upon a failure to pay dividends; (iii) any security convertible into or exchangeable for any of the foregoingforegoing except that Equity Securities shall not include the Series A Shares, Series B Shares or Series C Shares issued as of the date hereof; and (iv) any agreement or commitment to issue any of the foregoing.

RIGHT OF FIRST REFUSAL ON NEW ISSUANCES. (a) If, at any time prior to the termination of this right of first refusal pursuant to subsection 2.8(fSection 2.7(f), the Company should desire to issue in a transaction not registered under the Securities Act in reliance upon a claimed exemption thereunder, any Equity Securities (as hereinafter defined), it shall give each Holder who continues to hold at least fifty percent (50%) of the Preferred Shares purchased by such Holder pursuant to a Preferred Stock Purchase Agreement (a "Qualified First Refusal Holder") the first right to purchase such Qualified First Refusal Holder's pro rata share (or any part thereof) of all of such privately offered Equity Securities on the same terms as the Company is willing to sell such Equity Securities to any other person. Each Qualified First Refusal Holder's pro rata share of the Equity Securities shall be equal to that percentage of the outstanding Common Stock of the Company held by such Qualified First Refusal Holder on the date hereof. For purposes of this subsection 2.8Section 2.7, the outstanding Common Stock of the Company shall consist of include (i) outstanding shares of Common Stock, Stock and (ii) shares of Common Stock issued or issuable upon conversion of any then outstanding Preferred Stock of the Company. (b) Prior to any sale or issuance by the Company of any Equity Securities, the Company shall notify each Qualified First Refusal Holder in writing of its intention to sell and issue such securities, setting forth the terms under which it proposes to make such sale. Within thirty (30) days after receipt of such notice, each Qualified First Refusal Holder shall notify the Company whether such Qualified First Refusal Holder desires to exercise the option to purchase such Qualified First Refusal Holder's pro rata share (or any part thereof) of the Equity Securities so offered. If a Qualified First Refusal Holder elects to purchase such Qualified First Refusal Holder's pro rata share, then such Qualified First Refusal Holder shall have a right of over-allotment such that if any other Qualified First Refusal Holder fails to purchase such Qualified First Refusal Holder's pro rata share of the Equity Securities, Securities the Company shall provide notice to each Qualified First Refusal Holder of such right and any such Qualified First Refusal Holder(s) who have elected to purchase their pro rata shares may will have ten (10) days to give notice of its intent to purchase, on a pro rata basis, that portion of the Equity Securities which such other Holders Qualified First Refusal Holder elected not to purchase. (c) After termination of the thirty forty (3040) day period specified in subsection 2.8(bSection 2.7(b) above, the Company may, during a period of sixty (60) days following the end of such thirty forty (3040) day period, sell and issue such Equity Securities as to which the Qualified First Refusal Holders do not indicate a desire to purchase to another person as well as those additional shares of Equity Securities it originally intended to issue to other persons, upon the same terms and conditions as those set forth in the notice to the Qualified First Refusal Holders. In the event the Company has not sold the Equity Securities, or has not entered into an agreement to sell the Equity Securities, within said sixty (60) day period, the Company shall not thereafter issue or sell any Equity Securities without first offering such securities to the Qualified First Refusal Holders in the manner provided above. (d) If a Qualified First Refusal Holder gives the Company notice that such Qualified First Refusal Holder desires to purchase any of the Equity Securities offered by the Company, payment for the Equity Securities shall be by check, or wire transfer, against delivery of the Equity Securities at the executive offices of the Company within ten fifteen (1015) business days after giving the Company such notice, or, if later, the closing date for the sale of such Equity Securities. The Company shall take all such action as may be required by any regulatory authority in connection with the exercise by a Qualified First Refusal Holder of the right to purchase Equity Securities as set forth in this subsection 2.8Section 2.7. (e) The right of first refusal contained in this Section 2 2.7 shall not apply to the issuance by the Company of Equity Securities (i) of up issued or granted to 2,647,807 shares of Common Stock reserved for issuance to employees, consultantsofficers, directors employees or officers consultants of the Company and its subsidiaries pursuant to any stock grant, stock purchase and/or stock option plans or any other stock incentive program, agreement or arrangement approved by the Board of Directors (including approval by the Series A, Series B and Series C Preferred designees), (ii) as part of an acquisition by the Company of all or substantially all of the assets or shares of another company or entity whether through a merger, exchange, reorganization or the like approved by Board of Directors (including approval by the Series A, Series B and Series C Preferred designees), (iii) pursuant to equipment financing or leasing arrangements or in connection with strategic partnering transactions approved by the Company's Board of Directors (including approval by not in excess of 50,000,000 shares in the Series A, Series B and Series C Preferred designees)aggregate, (ivii) shares of Series C Preferred Stock sold issued pursuant to transactions described in Article III Section 2(e)(1) of the Series C Agreement after the Initial Closing (Company's Amended and Restated Certificate of Incorporation, as defined therein)amended from time to time, (viii) issued upon conversion of the Company's Preferred SharesStock, (viiv) convertible or exchangeable for capital stock issued (A) to the Company's vendors or service providers, (B) in connection conjunction with any stock splitan equipment lease financing, stock dividenddebt financing, recapitalization licensing or similar event acquisition transaction that is approved by the Company's Board of Directors or (including approval by C) to companies or entities with whom the Series ACompany has business relationships, Series B and Series C Preferred designeesin any such case not to exceed in the aggregate twenty-five percent (25%) of the then current maximum number of shares reserved for issuance under the Company's option plan(s) or (viiv) issued in connection with the IPO (as defined in subsection 1.2 above) approved by Board conversion of Directorsshares not subject to this right of first refusal. (f) The right of first refusal contained in this subsection 2.8 Section 2.7 shall terminate upon the closing of the IPO (as defined in subsection 1.2 above)a Qualified IPO. (g) The term "Equity Securities" shall mean (i) Common Stock, rights, options or warrants to purchase Common Stock; (ii) any security other than Common Stock having voting rights in the election of the Board of Directors, not contingent upon a failure to pay dividends; (iii) any security convertible into or exchangeable for any of the foregoing; and (iv) any agreement or commitment to issue any of the foregoing.