Common use of RIGHT OF FIRST REFUSAL, SPECIAL DILUTION PROTECTION Clause in Contracts

RIGHT OF FIRST REFUSAL, SPECIAL DILUTION PROTECTION. (i) The Company covenants and agrees that if during the period from the date hereof through and including the date which is one hundred twenty (120) days after the Effective Date of the First Registration Statement, the Company offers to enter into any transaction (a "New Transaction") for the sale of securities convertible into Company's Common Stock (or issues shares of Common Stock with a "reset" provision whereby the Company issues additional Common Stock depending on the future per share price of the Common Stock), the Company shall notify the Buyer in writing of all of the terms of such offer (a "New Transaction Offer"). The Buyer shall have the right (the "Right of First Refusal"), exercisable by written notice given to the Company by the close of business on the fifth business day after the Buyer's receipt of the New Transaction Offer (the "Right of First Refusal Expiration Date"), to participate in all or any part of the New Transaction Offer on the terms so specified. (ii) If, and only if, the Buyer does not exercise the Right of First Refusal in full, the Company may consummate the remaining portion of the New Transaction with any New Investor on the terms specified in the New Transaction Offer within thirty (30) days of the Right of First Refusal Expiration Date. (iii) If the terms of the New Transaction to be consummated with such other party differ from the terms specified in the New Transaction Offer so that the terms are more beneficial in any respect to the New Investor, the Company shall give the Buyer a New Transaction Offer relating to the terms of the New Transaction, as so changed, and the Buyer's Right of First Refusal and the preceding terms of this paragraph (l) shall apply with respect to such changed terms. (iv) If there is more than one Buyer signatory to this Agreement, the preceding provisions of this paragraph (l) shall apply pro rata among them (based on their relative Buyer's Allocable Shares), except that, to the extent any such Buyer does not exercise its Right of First Refusal in full (a "Declining Buyer"), the remaining Buyer or Buyers who or which have exercised their own Right of First Refusal in full, shall have the right (pro rata among them based on their relative Buyer's Allocable Shares, if more than one) to exercise all or a portion of such Declining Buyer's unexercised Right of Refusal. Nothing in this paragraph (l) shall be deemed to permit a transaction not otherwise permitted by subparagraph (g)(i), as modified by the provisions of subparagraph (g)(ii). (v) In the event the New Transaction is consummated with such other third party on terms providing for (x) either a sale price equal to or computed based on, or a determination of a conversion price based on, a lower percentage of the then current market price (howsoever defined or computed) than provided in the Certificate of Designation for determining the Conversion Rate or a lower Base Price (howsoever defined or computed) and/or (y) the issuance of warrants at an exercise price lower than that provided in the Warrants, the terms of any unissued or unconverted Preferred Stock or any unissued or unexercised Warrants shall be modified to reduce the relevant Conversion Rate, Base Price or Warrant exercise price to be equal to that provided in the New Transaction as so consummated.

RIGHT OF FIRST REFUSAL, SPECIAL DILUTION PROTECTION. (i) The Company covenants and agrees that that, if during the period from commencing on the date hereof of this Agreement and continuing through and including the date which is one hundred twenty eighty (120180) days after the Effective Date of the First Registration StatementDate, the Company offers to enter into any transaction (a "New Transaction") for the sale of Common Stock or securities convertible into Company's Common Stock (or issues shares of Common Stock with a collectively, "reset" provision whereby the Company issues additional Common Stock depending on the future per share price of the New Common Stock"), the Company shall notify the Buyer Lender in writing of all of 16 the terms of such offer (a "New Transaction Offer"). The Buyer Lender shall have the right (the "Right of First Refusal"), exercisable by written notice given to the Company by the close of business on the fifth third business day after the BuyerLender's receipt of the New Transaction Offer (the "Right of First Refusal Expiration Date"), to participate participate, pro rata with the holders of the shares of the Series A Convertible Preferred Stock (the "Series A Preferred Holders"), the Series B Convertible Preferred Stock (the "Series B Preferred Holders") and the Series C Convertible Preferred Stock (the "Series C Preferred Holders"), in all or any part of the New Transaction Offer on the terms so specified. To the extent that any Preferred Holders do not elect to participate in the New Transaction, the Right of First Refusal offered to them shall be offered pro rata to the Lenders and the Preferred Holders who have elected to exercise their own Right of First Refusal in full. (ii) If, and only if, the Buyer Lender does not exercise the Right of First Refusal in full, the Company may consummate the remaining portion of the New Transaction with any third party (a "New Investor Investor") on the terms specified in the New Transaction Offer within thirty (30) days of the Right of First Refusal Expiration Date. If the New Transaction is not so consummated by such thirtieth day, the provisions of Section 4(m)(i) shall apply again before the Company can consummate a New Transaction with any New Investor. (iii) If the terms of the New Transaction to be consummated with such other party differ in a material respect from the terms specified in the New Transaction Offer so that the terms are more beneficial in any respect to the New Investor, the Company shall give the Buyer Lender a New Transaction Offer relating to the terms of the New Transaction, as so changed, and the BuyerLender's Right of First Refusal and the preceding terms of this paragraph (lSection 4(m) shall apply with respect to such changed terms. (iv) If there is more than one Buyer Lender signatory to this Agreement, the preceding provisions of this paragraph (lSection 4(m) shall apply pro rata among them (based on their relative BuyerLender's Allocable Shares), except that, to the extent any such Buyer Lender does not exercise its Right of First Refusal in full (a "Declining BuyerLender"), the remaining Buyer Lender or Buyers Lenders who or which have exercised their own Right of First Refusal in full, shall have the right (pro rata among them based on their relative BuyerLender's Allocable Shares, if more than one) to exercise all or a portion of such Declining BuyerLender's unexercised Right of Refusal. Nothing in this paragraph (l) shall be deemed to permit a transaction not otherwise permitted by subparagraph (g)(i), as modified by the provisions of subparagraph (g)(ii). (v) In the event the New Transaction is consummated offered for the sale of New Common Stock or the issuance of warrants or other rights to purchase New Common Stock with such other third party at any time prior to the expiration of the Specified Period on terms providing for (x) either a sale price equal to or computed based on, or a determination of a conversion price based on, a lower percentage of the then current market price (howsoever defined or computed) than provided in the Certificate of Designation Debentures for determining the Conversion Rate Price or a lower Base Fixed Conversion Price (howsoever defined or computedcomputed in the New Transaction documents) and/or (y) the issuance of warrants at an exercise price lower than that provided in the WarrantsWarrants and/or for a greater number of shares per dollar paid or invested by such third party to or in the Company, the terms of any unissued the Debentures (or unconverted Preferred Stock 17 other documentation affecting the terms of the Debentures) and the Warrants (whether previously issued and/or converted or any unissued or unexercised Warrants not) shall be modified to (i) reduce the relevant Conversion RatePrice, Base Fixed Conversion Price or Warrant exercise price and/or (ii) increase the number of shares covered by the Warrants, in each instance to be equal to that provided in the New Transaction as so consummatedconsummated (provided, however, that such increased Warrants shall have the same exercise price formula as the New Transaction warrants). (vi) Except and subject to the extent provided in this subparagraph (vi), the Right of First Refusal provided herein does not apply to warrants issued to a New Senior Lender. Notwithstanding the foregoing, the provisions of subparagraph (v) of this Section 4(m) shall apply as if such issuance were a New Transaction for which the Right of First Refusal had not been exercised. This subparagraph (vi) does not apply if any of the Series A Preferred Holders and the Series B Preferred Holders (each such holder, an "Other Preferred Holder") has a right of first refusal, which right has not been waived by such Other Preferred Holder, with respect to the warrants issued to a New Senior Lender.

RIGHT OF FIRST REFUSAL, SPECIAL DILUTION PROTECTION. (i) The In addition to, and not in limitation of the provisions of Section 6.14 the Company covenants and agrees that if during the period from the date hereof through and including the later of (a) fifteen (15) months from delivery of the first Put Notice, or (b) twelve (12) months from the date which is one hundred twenty (120) days after the Effective Date of the First Registration StatementDate, the Company offers to enter into any transaction (a "New Transaction") for the sale of securities convertible into Company's Common Stock (other than in connection with an acquisition, merger or issues shares of Common Stock with a "reset" provision whereby the Company issues additional Common Stock depending on the future per share price of the Common Stockother business combination not involving cash consideration), the Company shall notify the Buyer Investor in writing of all of the terms of such offer (a "New Transaction Offer"). The Buyer Investor shall have the right (the "Right of First Refusal"), exercisable by written notice given to the Company by the close of business on the fifth business day after the BuyerInvestor's receipt of the New Transaction Offer (the "Right of First Refusal Expiration Date"), to participate in all or any part of the New Transaction Offer on the terms so specified. (ii) If, and only if, the Buyer Investor does not exercise the Right of First Refusal in full, the Company may consummate the remaining portion of the New Transaction with any New Investor on the terms specified in the New Transaction Offer within thirty ninety (3090) days of the Right of First Refusal Expiration Date. (iii) If the terms of the New Transaction to be consummated with such other party differ from the terms specified in the New Transaction Offer so that the terms are more beneficial in any respect to the New Investor, the Company shall give the Buyer Investor a New Transaction Offer relating to the terms of the New Transaction, as so changed, and the BuyerInvestor's Right of First Refusal and the preceding terms of this paragraph (l) shall apply with respect to such changed terms. (iv) If there is more than one Buyer signatory to this Agreement, the preceding provisions of this paragraph (l) shall apply pro rata among them (based on their relative Buyer's Allocable Shares), except that, to the extent any such Buyer does not exercise its Right of First Refusal in full (a "Declining Buyer"), the remaining Buyer or Buyers who or which have exercised their own Right of First Refusal in full, shall have the right (pro rata among them based on their relative Buyer's Allocable Shares, if more than one) to exercise all or a portion of such Declining Buyer's unexercised Right of Refusal. Nothing in this paragraph (l) shall be deemed to permit a transaction not otherwise permitted by subparagraph (g)(i), as modified by the provisions of subparagraph (g)(ii). (v) In the event the New Transaction is consummated with such other third party on terms providing for (x) either a sale price equal to or computed based on, or a determination of a conversion price based on, a lower percentage of the then current market price (howsoever defined or computed) than provided in the Certificate of Designation for determining the Conversion Rate or a lower Base Price (howsoever defined or computed) and/or (y) the issuance of warrants at an exercise price lower than that provided in the Warrants, the terms of any unissued or unconverted Preferred Stock or any unissued or unexercised Warrants shall be modified to reduce the relevant Conversion Rate, Base Price or Warrant exercise price to be equal to that provided in the New Transaction as so consummated.

RIGHT OF FIRST REFUSAL, SPECIAL DILUTION PROTECTION. (i) The Company covenants and agrees that that, except as provided in Section 4(l)(v) hereof, if during the period from the date hereof through and including the date which is one hundred twenty (120) days after the Effective Date of the First Registration Statement, the Company offers to enter into any transaction (a "_New Transaction"_) for the sale of securities convertible into Company's Common Stock (or issues shares of Common Stock with a "reset" provision whereby the Company issues additional Common Stock depending on the future per share price of the New Common Stock), the Company shall notify the Buyer in writing of all of the terms of such offer (a "_New Transaction Offer"_). The Buyer shall have the right (the "_Right of First Refusal"_), exercisable by written notice given to the Company by the close of business on the fifth business day after the Buyer's Buyer_s receipt of the New Transaction Offer (the "_Right of First Refusal Expiration Date"_), to participate in all or any part of the New Transaction Offer on the terms so specified. (ii) If, and only if, the Buyer does not exercise the Right of First Refusal in full, the Company may consummate the remaining portion of the New Transaction with any New Investor on the terms specified in the New Transaction Offer within thirty (30) days of the Right of First Refusal Expiration Date. (iii) If the terms of the New Transaction to be consummated with such other party differ from the terms specified in the New Transaction Offer so that the terms are more beneficial in any respect to the New Investor, the Company shall give the Buyer a New Transaction Offer relating to the terms of the New Transaction, as so changed, and the Buyer's Buyer_s Right of First Refusal and the preceding terms of this paragraph (l) shall apply with respect to such changed terms. (iv) If there is more than one Buyer signatory to this Agreement, the preceding provisions of this paragraph (l) shall apply pro rata among them (based on their relative Buyer's Allocable Shares), except that, to the extent any such Buyer does not exercise its Right of First Refusal in full (a "Declining Buyer"), the remaining Buyer or Buyers who or which have exercised their own Right of First Refusal in full, shall have the right (pro rata among them based on their relative Buyer's Allocable Shares, if more than one) to exercise all or a portion of such Declining Buyer's unexercised Right of Refusal. Nothing in this paragraph (l) shall be deemed to permit a transaction not otherwise permitted by subparagraph (g)(i), as modified by the provisions of subparagraph (g)(ii). (v) In the event the New Transaction is consummated with such other third party on terms providing for (x) either a sale or exercise price equal to or computed based on, or a determination of a conversion or exercise price based on, a lower percentage of the then current market price (howsoever defined or computed) than provided in the Certificate of Designation Debentures for determining the Conversion Rate or a lower Base Price (howsoever defined or computed) and/or (y) the issuance of warrants at an exercise price lower than that provided in the Warrants), the terms of any unissued or unconverted Preferred Stock or any unissued or unexercised Warrants Debentures shall be modified to reduce the relevant Conversion Rate, Base Rate or Fixed Conversion Price or Warrant exercise price to be equal to that provided in the New Transaction as so consummated. (v) The Buyer's Right of First Refusal shall not apply to the QVC Transaction.

RIGHT OF FIRST REFUSAL, SPECIAL DILUTION PROTECTION. (i) The Company covenants and agrees that if during the period from the date hereof through and including the date which is one hundred twenty thirty (12030) days after the Effective Date first closing of the First Registration Statementpurchase of Common Stock pursuant to the Letter of Intent dated December 27, 1999 between the Company and the Buyer, the Company offers to enter enters into any transaction (a "New Transaction") for the sale of securities convertible into Company's Common Stock (or issues shares of Common Stock with a "reset" provision whereby the Company issues additional Common Stock depending on the future per share price of the New Common Stock), the Company shall notify the Buyer in writing of all of the terms of such offer (a "New Transaction Offer"). The Buyer shall have the right (the "Right of First Refusal"), exercisable by written notice given to the Company by the close of business on the fifth business day after the Buyer's receipt of the New Transaction Offer (the "Right of First Refusal Expiration Date"), to participate in all or any part of the New Transaction Offer on the terms so specified. (ii) If, and only if, the Buyer does not exercise the Right of First Refusal in full, the Company may consummate the remaining portion of the New Transaction with any New Investor on the terms specified in the New Transaction Offer within thirty (30) days of the Right of First Refusal Expiration Date. (iii) If the terms of the New Transaction to be consummated with such other party differ from the terms specified in the New Transaction Offer so that the terms are more beneficial in any respect to the New Investor, the Company shall give the Buyer a New Transaction Offer relating to the terms of the New Transaction, as so changed, and the Buyer's Right of First Refusal and the preceding terms of this paragraph (l) shall apply with respect to such changed terms. (iv) If there is more than one Buyer signatory to this Agreement, the preceding provisions of this paragraph (l) shall apply pro rata among them (based on their relative Buyer's Allocable Shares), except that, to the extent any such Buyer does not exercise its Right of First Refusal in full (a "Declining Buyer"), the remaining Buyer or Buyers who or which have exercised their own Right of First Refusal in full, shall have the right (pro rata among them based on their relative Buyer's Allocable Shares, if more than one) to exercise all or a portion of such Declining Buyer's unexercised Right of Refusal. Nothing in this paragraph (l) shall be deemed to permit a transaction not otherwise permitted by subparagraph (g)(i), as modified by the provisions of subparagraph (g)(ii). (v) In the event the New Transaction is consummated with such other third party on terms providing for (x) either a sale price equal to or computed based on, or a determination of a conversion price based on, a lower percentage of the then current market price (howsoever defined or computed) than provided in the Certificate of Designation Designations for determining the Conversion Rate or a lower Base Price (howsoever defined or computed) and/or (y) the issuance of warrants at an exercise price lower than that provided in the Warrants, the terms of any unissued or unconverted Preferred Stock or any unissued or unexercised Warrants shall be modified to reduce the relevant Conversion Rate, Base Price or Warrant exercise price to be equal to that provided in the New Transaction as so consummated.

RIGHT OF FIRST REFUSAL, SPECIAL DILUTION PROTECTION. (i) The Company covenants and agrees that if during the period from the date hereof through and including the date which is one hundred twenty thirty (12030) days after the Effective Date of the First Registration StatementDate, the Company offers to enter into any transaction (a "_New Transaction"_) for the sale of securities convertible into Company's Common Stock (other than in connection with an acquisition, merger or issues shares of Common Stock with a "reset" provision whereby the Company issues additional Common Stock depending on the future per share price of the Common Stockother business combination), the Company shall notify the Buyer Investor in writing of all of the terms of such offer (a "_New Transaction Offer"_). The Buyer Investor shall have the right (the "_Right of First Refusal"_), exercisable by written notice given to the Company by the close of business on the fifth business day after the Buyer's Investor_s receipt of the New Transaction Offer (the "_Right of First Refusal Expiration Date"_), to participate in all or any part of the New Transaction Offer on the terms so specified. (ii) If, and only if, the Buyer Investor does not exercise the Right of First Refusal in full, the Company may consummate the remaining portion of the New Transaction with any New Investor on the terms specified in the New Transaction Offer within thirty ninety (3090) days of the Right of First Refusal Expiration Date. (iii) If the terms of the New Transaction to be consummated with such other party differ from the terms specified in the New Transaction Offer so that the terms are more beneficial in any respect to the New Investor, the Company shall give the Buyer Investor a New Transaction Offer relating to the terms of the New Transaction, as so changed, and the Buyer's Investor_s Right of First Refusal and the preceding terms of this paragraph (l) shall apply with respect to such changed terms. (iv) If there is more than one Buyer signatory to this Agreement, the preceding provisions of this paragraph (l) shall apply pro rata among them (based on their relative Buyer's Allocable Shares), except that, to the extent any such Buyer does not exercise its Right of First Refusal in full (a "Declining Buyer"), the remaining Buyer or Buyers who or which have exercised their own Right of First Refusal in full, shall have the right (pro rata among them based on their relative Buyer's Allocable Shares, if more than one) to exercise all or a portion of such Declining Buyer's unexercised Right of Refusal. Nothing in this paragraph (l) shall be deemed to permit a transaction not otherwise permitted by subparagraph (g)(i), as modified by the provisions of subparagraph (g)(ii). (v) In the event the New Transaction is consummated with such other third party on terms providing for (x) either a sale price equal to or computed based on, or a determination of a conversion price based on, a lower percentage of the then current market price (howsoever defined or computed) than provided in the Certificate of Designation for determining the Conversion Rate or a lower Base Price market price (howsoever defined or computed) and/or (y) the issuance of warrants at an exercise price lower than that provided in the Warrants, the terms of any unissued or unconverted Preferred Stock or any unissued or unexercised Warrants shall be modified to reduce the relevant Conversion Rate, Base Price or Warrant exercise price to be equal to that provided in the New Transaction as so consummated.

RIGHT OF FIRST REFUSAL, SPECIAL DILUTION PROTECTION. (i) The Company covenants and agrees that if during the period from the date hereof through and including the date which is one hundred twenty thirty (12030) days after the Effective Date first closing of the First Registration Statementpurchase of Common Stock pursuant to the Letter of Intent dated December 27, 1999 between the Company and the Buyer, the Company offers to enter enters into any transaction (a "New Transaction") for the sale of securities convertible into Company's Common Stock (or issues shares of Common Stock with a "reset" provision whereby the Company issues additional Common Stock depending on the future per share price of the New Common Stock), the Company shall notify the Buyer in writing of all of the terms of such offer (a "New Transaction Offer"). The Buyer shall have the right (the "Right of First Refusal"), exercisable by written notice given to the Company by the close of business on the fifth business day after the Buyer's receipt of the New Transaction Offer (the "Right of First Refusal Expiration Date"), to participate in all or any part of the New Transaction Offer on the terms so specified. (ii) If, and only if, the Buyer does not exercise the Right of First Refusal in full, the Company may consummate the remaining portion of the New Transaction with any New Investor on the terms specified in the New Transaction Offer within thirty (30) days of the Right of First Refusal Expiration Date. (iii) If the terms of the New Transaction to be consummated with such other party differ from the terms specified in the New Transaction Offer so that the terms are more beneficial in any respect to the New Investor, the Company shall give the Buyer a New Transaction Offer relating to the terms of the New Transaction, as so changed, and the Buyer's Right of First Refusal and the preceding terms of this paragraph (l) shall apply with respect to such changed terms. (iv) If there is more than one Buyer signatory to this Agreement, the preceding provisions of this paragraph (l) shall apply pro rata among them (based on their relative Buyer's Allocable Shares), except that, to the extent any such Buyer does not exercise its Right of First Refusal in full (a "Declining Buyer"), the remaining Buyer or Buyers who or which have exercised their own Right of First Refusal in full, shall have the right (pro rata among them based on their relative Buyer's Allocable Shares, if more than one) to exercise all or a portion of such Declining Buyer's unexercised Right of Refusal. Nothing in this paragraph (l) shall be deemed to permit a transaction not otherwise permitted by subparagraph (g)(i), as modified by the provisions of subparagraph (g)(ii). (v) In the event the New Transaction is consummated with such other third party on terms providing for (x) either a sale price equal to or computed based on, or a determination of a conversion price based on, a lower percentage of the then current market price (howsoever defined or computed) than provided in the Certificate of Designation for determining the Conversion Rate or a lower Base Price (howsoever defined or computed) and/or (y) the issuance of warrants at an exercise price lower than that provided in the Warrants, the terms of any unissued or unconverted Preferred Stock or any unissued or unexercised Warrants shall be modified to reduce the relevant Conversion Rate, Base Price or Warrant exercise price to be equal to that provided in the New Transaction as so consummated.based

RIGHT OF FIRST REFUSAL, SPECIAL DILUTION PROTECTION. (i) The Company covenants and agrees that that, if during the period from the date hereof through and including the date which is one two hundred twenty forty (120240) days after the Effective Date of the First Registration StatementDate, the Company offers to enter into any transaction other than an underwritten public offering (a "New Transaction") for the sale of securities convertible into Company's Common Stock (or issues shares of Common Stock with a "reset" provision whereby the Company issues additional Common Stock depending on the future per share price of the New Common Stock), the Company shall notify the Buyer in writing of all of the terms of such offer (a "New Transaction Offer"). The Buyer shall have the right (the "Right of First Refusal"), exercisable by written notice given to the Company by the close of business on the fifth third business day after the Buyer's receipt of the New Transaction Offer (the "Right of First Refusal Expiration Date"), to participate in all or any part of the New Transaction Offer on the terms so specified. (ii) If, and only if, the Buyer does not exercise the Right of First Refusal in full, the Company may consummate the remaining portion of the New Transaction with any New Investor on the terms specified in the New Transaction Offer within thirty twenty (3020) days of the Right of First Refusal Expiration Date. (iii) If the terms of the New Transaction to be consummated with such other party differ from the terms specified in the New Transaction Offer so that the terms are more beneficial in any respect to the New Investor, the Company shall give the Buyer a New Transaction Offer relating to the terms of the New Transaction, as so changed, and the Buyer's Right of First Refusal and the preceding terms of this paragraph (lSection 4(j) shall apply with respect to such changed terms. (iv) If there is more than one Buyer signatory to this Agreement, the preceding provisions of this paragraph (lSection 4(j) shall apply pro rata among them (based on their relative Buyer's Allocable Shares), except that, to the extent any such Buyer does not exercise its Right of First Refusal in full (a "Declining Buyer"), the remaining Buyer or Buyers who or which have exercised their own Right of First Refusal in full, shall have the right (pro rata among them based on their relative Buyer's Allocable Shares, if more than one) to exercise all or a portion of such Declining Buyer's unexercised Right of Refusal. Nothing in this paragraph (l) shall be deemed to permit a transaction not otherwise permitted by subparagraph (g)(i), as modified by the provisions of subparagraph (g)(ii). (v) In the event the New Transaction is consummated for the sale of New Common Stock or the issuance of warrants or other rights to purchase New Common Stock with such other third party at any time prior to the expiration of two hundred forty (240) days after the Effective Date on terms providing for (x) either a sale price equal to or computed based on, or a determination of a conversion price based on, a lower percentage of the then current market price (howsoever defined or computed) than provided in the Certificate of Designation Designations for determining the Conversion Rate or a lower Base Fixed Price (as defined in the Certificate of Designations, but howsoever defined or computedcomputed in the New Transaction documents) and/or (y) the issuance of warrants at an exercise price lower than that provided in the WarrantsWarrants and/or for a greater number of shares per dollar paid or invested by such third party to or in the Company, the terms of any unissued the Certificate of Designations (or unconverted other documentation affecting the terms of the Preferred Stock Stock) and the Warrants (whether previously issued and/or converted or any unissued or unexercised Warrants not) shall be modified to (i) reduce the relevant Conversion Rate, Base Fixed Price or Warrant exercise price and/or (ii) increase the number of shares covered by the Warrants, in each instance to be equal to that provided in the New Transaction as so consummatedconsummated (provided, however, that such increased Warrants shall have the same exercise price formula as the New Transaction warrants).

RIGHT OF FIRST REFUSAL, SPECIAL DILUTION PROTECTION. (i) The Company covenants and agrees that if during the period from the date hereof through and including the date which is one hundred twenty thirty (12030) days after the Effective Date of the First Registration StatementDate, the Company offers to enter enters into any transaction (a "New Transaction") for the sale of securities convertible into Company's Common Stock (or issues shares of Common Stock with a "reset" provision whereby the Company issues additional Common Stock depending on the future per share price of the New Common Stock), the Company shall notify the Buyer in writing of all of the terms of such offer (a "New Transaction Offer"). The Buyer shall have the right (the "Right of First Refusal"), exercisable by written notice given to the Company by the close of business on the fifth business day after the Buyer's receipt of the New Transaction Offer (the "Right of First Refusal Expiration Date"), to participate in all or any part of the New Transaction Offer on the terms so specified. (ii) If, and only if, the Buyer does not exercise the Right of First Refusal in full, the Company may consummate the remaining portion of the New Transaction with any New Investor on the terms specified in the New Transaction Offer within thirty (30) days of the Right of First Refusal Expiration Date. (iii) If the terms of the New Transaction to be consummated with such other party differ from the terms specified in the New Transaction Offer so that the terms are more beneficial in any respect to the New Investor, the Company shall give the Buyer a New Transaction Offer relating to the terms of the New Transaction, as so changed, and the Buyer's Right of First Refusal and the preceding terms of this paragraph (l) shall apply with respect to such changed terms. (iv) If there is more than one Buyer signatory to this Agreement, the preceding provisions of this paragraph (l) shall apply pro rata among them (based on their relative Buyer's Allocable Shares), except that, to the extent any such Buyer does not exercise its Right of First Refusal in full (a "Declining Buyer"), the remaining Buyer or Buyers who or which have exercised their own Right of First Refusal in full, shall have the right (pro rata among them based on their relative Buyer's Allocable Shares, if more than one) to exercise all or a portion of such Declining Buyer's unexercised Right of Refusal. Nothing in this paragraph (l) shall be deemed to permit a transaction not otherwise permitted by subparagraph (g)(i), as modified by the provisions of subparagraph (g)(ii). (v) In the event the New Transaction is consummated with such other third party on terms providing for (x) either a sale price equal to or computed based on, or a determination of a conversion price based on, a lower percentage of the then current market price (howsoever defined or computed) than provided in the Certificate of Designation Designations for determining the Conversion Rate or a lower Base Price (howsoever defined or computed) and/or (y) the issuance of warrants at an exercise price lower than that provided in the Warrants, the terms of any unissued or unconverted Preferred Stock or any unissued or unexercised Warrants shall be modified to reduce the relevant Conversion Rate, Base Price or Warrant exercise price to be equal to that provided in the New Transaction as so consummated.

RIGHT OF FIRST REFUSAL, SPECIAL DILUTION PROTECTION. (i) The Company covenants and agrees that that, if during the period from the date hereof through and including the date which is one hundred twenty (120) days after the Effective Date of the First Registration StatementSpecified Period, the Company offers to enter into any transaction (a "New Transaction") for the sale of securities convertible into Company's Common Stock (or issues shares of Common Stock with a "reset" provision whereby the Company issues additional Common Stock depending on the future per share price of the New Common Stock), the Company shall notify the Buyer in writing of all of the terms of such offer (a "New Transaction Offer"). The Buyer shall have the right (the "Right of First Refusal"), exercisable by written notice given to the Company by the close of business on the fifth third business day after the Buyer's receipt of the New Transaction Offer (the "Right of First Refusal Expiration Date"), to participate participate, pro rata with the holders of the shares of the Series A and Series B Convertible Preferred Stock (the "Other Preferred Holders"), in all or any part of the New Transaction Offer on the terms so specified. To the extent that any Other Preferred Holders do not elect to participate in the New Transaction, the Right of First Refusal offered to them shall be offered pro rata to the Buyers and the Other Preferred Holders who have elected to exercise their own Right of First Refusal in full. (ii) If, and only if, the Buyer does not exercise the Right of First Refusal in full, the Company may consummate the remaining portion of the New Transaction with any third party (a "New Investor Investor") on the terms specified in the New Transaction Offer within thirty (30) days of the Right of First Refusal Expiration Date. If the New Transaction is not so consummated by such thirtieth day, the provisions of Section 4(m)(i) shall apply again before the Company can consummate a New Transaction with any New Investor. (iii) If the terms of the New Transaction to be consummated with such other party differ in a material respect from the terms specified in the New Transaction Offer so that the terms are more beneficial in any respect to the New Investor, the Company shall give the Buyer a New Transaction Offer relating to the terms of the New Transaction, as so changed, and the Buyer's Right of First Refusal and the preceding terms of this paragraph (lSection 4(m) shall apply with respect to such changed terms. (iv) If there is more than one Buyer signatory to this Agreement, the preceding provisions of this paragraph (lSection 4(m) shall apply pro rata among them (based on their relative Buyer's Allocable Shares), except that, to the extent any such Buyer does not exercise its Right of First Refusal in full (a "Declining a"Declining Buyer"), the remaining Buyer or Buyers who or which have exercised their own Right of First Refusal in full, shall have the right (pro rata among them based on their relative Buyer's Allocable Shares, if more than one) to exercise all or a portion of such Declining Buyer's unexercised Right of Refusal. Nothing in this paragraph (lSection 4(m) shall be deemed to permit a transaction not otherwise permitted by subparagraph (g)(i), as modified by the provisions of subparagraph (g)(ii). (v) In the event the New Transaction is consummated offered for the sale of New Common Stock or the issuance of warrants or other rights to purchase New Common Stock with such other third party at any time prior to the expiration of the Specified Period on terms providing for (x) either a sale price equal to or computed based on, or a determination of a conversion price based on, a lower percentage of the then current market price (howsoever defined or computed) than provided in the Certificate of Designation Designations for determining the Conversion Rate Price or a lower Base Initial Conversion Price (howsoever defined or computedcomputed in the New Transaction documents) and/or (y) the issuance of warrants at an exercise price lower than that provided in the WarrantsWarrants and/or for a greater number of shares per dollar paid or invested by such third party to or in the Company, the terms of any unissued the Certificate of Designations (or unconverted other documentation affecting the terms of the Preferred Stock Stock) and the Warrants (whether previously issued and/or converted or any unissued or unexercised Warrants not) shall be modified to (i) reduce the relevant Conversion RatePrice, Base Initial Conversion Price or Warrant exercise price and/or (ii) increase the number of shares covered by the Warrants, in each instance to be equal to that provided in the New Transaction as so consummatedconsummated (provided, however, that such increased Warrants shall have the same exercise price formula as the New Transaction warrants).

RIGHT OF FIRST REFUSAL, SPECIAL DILUTION PROTECTION. (i) The Company covenants and agrees that if during the period from the date hereof through and including the date which is one hundred twenty thirty (12030) days after the Effective Date of the First Registration StatementDate, the Company offers to enter into any transaction (a "_New Transaction"_) for the sale of securities convertible into Company's Common Stock (other than in connection with an acquisition, merger or issues shares of Common Stock with a "reset" provision whereby the Company issues additional Common Stock depending on the future per share price of the Common Stockother business combination), the Company shall notify the Buyer Investor in writing of all of the terms of such offer (a "_New Transaction Offer"_). The Buyer Investor shall have the right (the "_Right of First Refusal"_), exercisable by written notice given to the Company by the close of business on the fifth business day after the Buyer's Investor_s receipt of the New Transaction Offer (the "_Right of First Refusal Expiration Date"_), to participate in all or any part of the New Transaction Offer on the terms so specified. (ii) If, and only if, the Buyer Investor does not exercise the Right of First Refusal in full, the Company may consummate the remaining portion of the New Transaction with any New Investor on the terms specified in the New Transaction Offer within thirty ninety (3090) days of the Right of First Refusal Expiration Date. (iii) If the terms of the New Transaction to be consummated with such other party differ from the terms specified in the New Transaction Offer so that the terms are more beneficial in any respect to the New Investor, the Company shall give the Buyer Investor a New Transaction Offer relating to the terms of the New Transaction, as so changed, and the Buyer's Investor_s Right of First Refusal and the preceding terms of this paragraph (l) shall apply with respect to such changed terms. (iv) If there is more than one Buyer Investor signatory to this Agreement, the preceding provisions of this paragraph (l) shall apply pro rata among them (based on their relative Buyer's Investor_s Allocable Shares), except that, to the extent any such Buyer Investor does not exercise its Right of First Refusal in full (a "_Declining Buyer"Investor_), the remaining Buyer Investor or Buyers Investors who or which have exercised their own Right of First Refusal in full, shall have the right (pro rata among them based on their relative Buyer's Investor_s Allocable Shares, if more than one) to exercise all or a portion of such Declining Buyer's Investor_s unexercised Right of Refusal. Nothing in this paragraph (l) shall be deemed to permit a transaction not otherwise permitted by subparagraph (g)(i), as modified by the provisions of subparagraph (g)(ii). (v) In the event the New Transaction is consummated with such other third party on terms providing for (x) either a sale price equal to or computed based on, or a determination of a conversion price based on, a lower percentage of the then current market price (howsoever defined or computed) than provided in the Certificate of Designation for determining the Conversion Rate or a lower Base Price market price (howsoever defined or computed) and/or (y) the issuance of warrants at an exercise price lower than that provided in the Warrants, the terms of any unissued or unconverted Preferred Stock or any unissued or unexercised Warrants shall be modified to reduce the relevant Conversion Rate, Base Price or Warrant exercise price to be equal to that provided in the New Transaction as so consummated.

RIGHT OF FIRST REFUSAL, SPECIAL DILUTION PROTECTION. (i) The Company covenants and agrees that that, if during the period from the date hereof through and including the date which is one two hundred twenty forty (120240) days after the Effective Date of the First Registration StatementDate, the Company offers to enter into any transaction (a "New Transaction") for the sale of securities convertible into Company's New Common Stock (or issues shares of Common Stock other than in connection with a "reset" provision whereby the Company issues additional Common Stock depending on the future per share price of the Common Stocktransaction referred to in Section 4(g)(ii) hereof), the Company shall notify the Buyer in writing of all of the terms of such offer (a "New Transaction Offer"). The Buyer shall have the right (the "Right of First Refusal"), exercisable by written notice given to the Company by the close of business on the fifth third business day after the Buyer's receipt of the New Transaction Offer (the "Right of First Refusal Expiration Date"), to participate in all or any part of the New Transaction Offer on the terms so specified. (ii) If, and only if, the Buyer does not exercise the Right of First Refusal in full, the Company may consummate the remaining portion of the New Transaction with any third party (a "New Investor Investor") on the terms specified in the New Transaction Offer within thirty twenty (3020) days of the Right of First Refusal Expiration Date. If the New Transaction is not so consummated by such twentieth day, the provisions of Section 4(l)(i) shall apply again before the Company can consummate a New Transaction with any New Investor. (iii) If the terms of the New Transaction to be consummated with such other party differ in a material respect from the terms specified in the New Transaction Offer so that the terms are more beneficial in any respect to the New Investor, the Company shall give the Buyer a New Transaction Offer relating to the terms of the New Transaction, as so changed, and the Buyer's Right of First Refusal and the preceding terms of this paragraph (lSection 4(l) shall apply with respect to such changed terms. (iv) If there is more than one Buyer signatory to this Agreement, the preceding provisions of this paragraph (lSection 4(l) shall apply pro rata among them (based on their relative Buyer's Allocable Shares), except that, to the extent any such Buyer does not exercise its Right of First Refusal in full (a "Declining a"Declining Buyer"), the remaining Buyer or Buyers who or which have exercised their own Right of First Refusal in full, shall have the right (pro rata among them based on their relative Buyer's Allocable Shares, if more than one) to exercise all or a portion of such Declining Buyer's unexercised Right of Refusal. Nothing in this paragraph (lSection 4(l) shall be deemed to permit a transaction not otherwise permitted by subparagraph (g)(i), as modified by the provisions of subparagraph (g)(ii). (v) In the event the New Transaction is consummated for the sale of New Common Stock or the issuance of warrants or other rights to purchase New Common Stock with such other third party at any time prior to the expiration of two hundred forty (240) days after the Effective Date on terms providing for (x) either a sale price equal to or computed based on, or a determination of a conversion price based on, a lower percentage of the then current market price (howsoever defined or computed) than provided in the Certificate of Designation Designations for determining the Conversion Rate Price or a lower Base Fixed Conversion Price (as defined in the Certificate of Designations, but howsoever defined or computedcomputed in the New Transaction documents) and/or (y) the issuance of warrants at an exercise price lower than that provided in the WarrantsWarrants and/or for a greater number of shares per dollar paid or invested by such third party to or in the Company, the terms of any unissued the Certificate of Designations (or unconverted other documentation affecting the terms of the Preferred Stock Stock) and the Warrants (whether previously issued and/or converted or any unissued or unexercised Warrants not) shall be modified to (i) reduce the relevant Conversion RatePrice, Base Fixed Conversion Price or Warrant exercise price and/or (ii) increase the number of shares covered by the Warrants, in each instance to be equal to that provided in the New Transaction as so consummatedconsummated (provided, however, that such increased Warrants shall have the same exercise price formula as the New Transaction warrants).

RIGHT OF FIRST REFUSAL, SPECIAL DILUTION PROTECTION. (ia) The Company covenants and agrees that if during the period from the date hereof through and including the date which is one hundred twenty (1201) days after the Effective Date year payment in full of the First Registration StatementNote, , the Company offers to enter into any transaction (a "New Transaction") for the sale of Common Stock, or securities convertible into Company's Common Stock (other than in connection with an acquisition, merger or issues shares of Common Stock with a "reset" provision whereby the Company issues additional Common Stock depending on the future per share price of the Common Stockother business combination), the Company shall notify the Buyer Lender in writing of all of the terms of such offer (a "New Transaction Offer"). The Buyer Lender shall have the right (the "Right of First Refusal"), exercisable by written notice given to the Company by the close of business on the fifth tenth business day after the BuyerLender's receipt of the New Transaction Offer (the "Right of First Refusal Expiration Date"), to participate in all or any part of the New Transaction Offer on the terms so specified. (iib) If, and only if, the Buyer Lender does not exercise the Right of First Refusal in full, the Company may consummate the remaining portion of the New Transaction with any New Investor Lender on the terms specified in the New Transaction Offer within thirty sixty (3060) days of the Right of First Refusal Expiration Date. (iiic) If the terms of the New Transaction to be consummated with such other party differ from the terms specified in the New Transaction Offer so that the terms are more beneficial in any respect to the New InvestorLender, the Company shall give the Buyer Lender a New Transaction Offer relating to the terms of the New Transaction, as so changed, and the Buyer's Lender"s Right of First Refusal and the preceding terms of this paragraph (l) shall apply with respect to such changed terms. (iv) If there is more than one Buyer signatory to this Agreement, the preceding provisions of this paragraph (l) shall apply pro rata among them (based on their relative Buyer's Allocable Shares), except that, to the extent any such Buyer does not exercise its Right of First Refusal in full (a "Declining Buyer"), the remaining Buyer or Buyers who or which have exercised their own Right of First Refusal in full, shall have the right (pro rata among them based on their relative Buyer's Allocable Shares, if more than one) to exercise all or a portion of such Declining Buyer's unexercised Right of Refusal. Nothing in this paragraph (l) shall be deemed to permit a transaction not otherwise permitted by subparagraph (g)(i), as modified by the provisions of subparagraph (g)(ii). (v) In the event the New Transaction is consummated with such other third party on terms providing for (x) either a sale price equal to or computed based on, or a determination of a conversion price based on, a lower percentage of the then current market price (howsoever defined or computed) than provided in the Certificate of Designation for determining the Conversion Rate or a lower Base Price (howsoever defined or computed) and/or (y) the issuance of warrants at an exercise price lower than that provided in the Warrants, the terms of any unissued or unconverted Preferred Stock or any unissued or unexercised Warrants shall be modified to reduce the relevant Conversion Rate, Base Price or Warrant exercise price to be equal to that provided in the New Transaction as so consummated.