Common use of Right of First Refusal to Significant Holders Clause in Contracts

Right of First Refusal to Significant Holders. The Company hereby grants to each Significant Holder the right of first refusal to purchase its pro rata share of New Securities (as defined in this Section 4.1(a)) which the Company may, from time to time, propose to sell and issue after the date of this Agreement. A Significant Holder’s pro rata share, for purposes of this right of first refusal, is equal to the ratio of (a) the number of shares of Common Stock owned by such Significant Holder immediately prior to the issuance of New Securities (assuming full conversion of the Shares and exercise of all outstanding convertible securities, rights, options and warrants, directly or indirectly, into Common Stock held by said Significant Holder) to (b) the total number of shares of Common Stock outstanding immediately prior to the issuance of New Securities (assuming full conversion of the Shares and exercise of all outstanding convertible securities, rights, options and warrants, directly or indirectly). Each Significant Holder shall have a right of over-allotment such that if any Significant Holder fails to exercise its right hereunder to purchase its pro rata share of New Securities, the other Significant Holders may purchase the non-purchasing Significant Holder’s portion on a pro rata basis until all such New Securities as to which the Significant Holders had a right of first refusal have been subscribed for. This right of first refusal shall be subject to the following provisions:

Right of First Refusal to Significant Holders. The Company hereby grants to (i) R.H. “Xxxx” Xxxxx, III (or at his election, an affiliate of R.H. “Xxxx” Xxxxx, III or RHS Investments) (collectively, “Xxxx Xxxxx”) and (ii) each Major Investor (collectively, the “Significant Holder Holders”), the right of first refusal to purchase its pro rata share of all shares of, or securities convertible into or exchangeable or exercisable for any shares of or any class of its capital stock (the “New Securities (as defined in this Section 4.1(a)Securities”) which the Company may, from time to time, propose to sell and or issue after the date of this Agreement. A Significant Holder’s pro rata share, for purposes of this right of first refusal, is equal to the ratio of (a) the number of shares of Common Stock owned by such Significant Holder immediately prior to the issuance of New Securities (assuming full conversion of the Shares and exercise of all outstanding convertible securities, rights, options and warrants, directly or indirectly, into Common Stock held by said Significant Holder) to (b) the total number of shares of Common Stock outstanding immediately prior to the issuance of New Securities (assuming full conversion of the Shares and exercise of all outstanding convertible securities, rights, options and warrants, directly or indirectly)) and held by such Significant Holders. Each Significant Holder shall have a right of over-allotment such that if any Significant Holder fails to exercise its right hereunder to purchase its pro rata share of New Securities, the other Significant Holders may purchase the non-purchasing Significant Holder’s portion on a pro rata basis until all such New Securities as to which the Significant Holders had a right of first refusal have been subscribed forbasis. This right of first refusal shall be subject to the following provisions: (a) In the event the Company proposes to undertake an issuance of New Securities, it shall give each Significant Holder written notice (the “ROFR Notice”) of its intention, describing the type of New Securities, and their price and the general terms upon which the Company proposes to issue the same. Each Significant Holder shall have twenty (20) business days after any such notice is delivered (the “Election Period”) to agree to purchase such Significant Holder’s pro rata share of such New Securities and to indicate whether such Holder desires to exercise its over-allotment option for the price and upon the terms specified in the notice by giving written notice to the Company, in substantially the form attached hereto as Schedule 1, and stating therein the quantity of New Securities to be purchased. The closing of each sale of New Securities pursuant to this Section 4.1 shall take place at the offices of the Company as soon as practicable. Each such sale shall be effected by the Company’s delivery to the participating Significant Holders of an original certificate or certificates evidencing the New Securities to be purchased by them against payment in immediately available funds to the Company of the subscription price therefore by the relevant purchaser of the New Securities. (b) In the event the Significant Holders fail to exercise fully the right of first refusal and over-allotment rights, if any, within the Election Period, the Company shall have ninety (90) days thereafter to sell or enter into an agreement (pursuant to which the sale of New Securities covered thereby shall be closed, if at all, within ninety (90) days from the date of said agreement) to issue that portion of the New Securities with respect to which the Significant Holders’ right of first refusal option set forth in this Section 4.1 was not exercised, at a price and upon terms no more favorable to the purchasers thereof than specified in the Company’s notice to Significant Holders delivered pursuant to Section 4.1(a). In the event the Company has not sold within such ninety (90) day period following the Election Period, or such ninety (90) day period following the date of said agreement, the Company shall not thereafter issue or sell any New Securities, without first again offering such securities to the Significant Holders in the manner provided in this Section 4.1. (c) The right of first refusal in this Section 4.1 shall not be applicable to (i) the sale of shares of Series C Preferred Stock pursuant to the Purchase Agreement; (ii) the issuance of shares of Common Stock upon the conversion of Preferred Stock in accordance with the Company’s Certificate of Incorporation, as amended and then in effect; (iii) the issuance of securities to vendors or customers or to other persons in similar commercial situations with the Company if such issuance is for other than primarily equity financing purposes and that has been approved by the Board of Directors, including two Senior Directors; (iv) the issuance or sale of securities in a public offering of the Company’s securities; (v) the issuance of securities in connection with any stock split, stock dividend, recapitalization or similar transaction of the Company or its subsidiaries; (vi) the issuance of securities in connection with corporate partnering transactions and that has been approved by the Board of Directors, including two Senior Directors; (vii) the issuance or sale of shares of Common Stock (or options therefor) to employees, directors and consultants pursuant to a stock option or purchase plan that has been approved by the Board of Directors, including two of the Senior Directors; (viii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities; (ix) the issuance of securities in connection with a bona fide business acquisition of or by the Company or its subsidiaries, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise and that has been approved by the Board of Directors, including two Senior Directors; (x) the issuance of stock, warrants or other securities or rights to banks, equipment lessors, guarantors or equipment vendors pursuant to lease or financing arrangements provided such issuances are for other than primarily equity financing purposes and that has been approved by the Board of Directors, including two Senior Directors; or (xi) the issuance of any right, option or warrant to acquire any security convertible into the securities excluded from the right of first refusal in Section 4.1 pursuant to subsection (i) through (x) above; provided, however, that any issuance of securities pursuant to subsections (iii), (vi), (ix) and (x) above to (A) any affiliate of RHS Investments or any affiliate or family member of R.H. “Xxxx” Xxxxx, III or any employee, director or consultant of the Company or any of its subsidiaries or (B) in excess of 10% of Company’s outstanding capital stock, in the aggregate with all such issuances, as of the date hereof, in each case shall not be excluded from the right of first refusal in this Section 4.1. (d) Notwithstanding anything in this Agreement to the contrary, each of Xxxxx Street Partners, LLC and Battery Ventures IX, L.P. and each of the funds affiliated therewith or managed thereby may assign all or part of its rights pursuant to this Section 4 to any fund or funds affiliated therewith.

Right of First Refusal to Significant Holders. The Company hereby grants to each Significant Holder Holder, the right of first refusal to purchase up to its pro rata share of New Securities (as defined in this Section 4.1(a)) which the Company may, from time to time, propose to sell and issue after the date of this Agreement. A Significant Holder’s pro rata share, for purposes of this right of first refusal, is equal to the ratio of (a) the number of shares of Common Stock owned by such Significant Holder immediately prior to the issuance of New Securities (assuming full conversion of the Shares and full conversion or exercise of all outstanding convertible securities, rights, options and warrants, directly or indirectly, into Common Stock warrants held by said Significant Holder) to (b) the total number of shares of Common Stock outstanding immediately prior to the issuance of New Securities (assuming full conversion of the Shares and full conversion or exercise of all outstanding convertible securities, rights, options and warrants, directly and excluding any shares of Common Stock issued or indirectlyissuable to employees or consultants of the Company upon exercise of stock options). Each Significant Holder shall have a right of over-allotment such that if any Significant Holder fails to exercise its right hereunder to purchase its pro rata share of New Securities, the other Significant Holders may purchase the non-purchasing Significant Holder’s portion on a pro rata basis until all such New Securities as to which the Significant Holders had a right of first refusal have been subscribed forbasis. This right of first refusal shall be subject to the following provisions:

Right of First Refusal to Significant Holders. The Company hereby grants to each Holder who owns at least (i) fifty percent (50%) of the Shares purchased by such Holder from the Company (as presently constituted and subject to subsequent adjustments for stock splits, stock dividends, reverse stock splits and the like) or (ii) five percent (5%) of the then outstanding Shares (as presently constituted and subject to subsequent adjustments for stock splits, stock dividends, reverse stock splits and the like) (the “Significant Holder Holders”), the right of first refusal to purchase its pro rata share of New Securities (as defined in this Section 4.1(a)) which the Company may, from time to time, propose to sell and issue after the date of this Agreement. A Significant Holder’s pro rata share, for purposes of this right of first refusal, is equal to the ratio of (a) the number of shares of Common Stock owned by such Significant Holder immediately prior to the issuance of New Securities (assuming full conversion of the Shares and exercise and/or conversion of all outstanding convertible securities, rights, options and warrants, directly or indirectly, into Common Stock held by said Significant Holder) to (b) the total number of shares of Common Stock outstanding immediately prior to the issuance of New Securities (assuming full conversion of the Shares and exercise and/or conversion of all outstanding convertible securities, rights, options and warrants, directly or indirectly, into Common Stock). Each Significant Holder shall have a right of over-allotment such that if any Significant Holder fails to exercise its right hereunder to purchase its pro rata share of New Securities, the other Significant Holders may purchase the non-purchasing Significant Holder’s portion on a pro rata basis until all such New Securities as to which the Significant Holders had a right of first refusal have been subscribed forbasis. This right of first refusal shall be subject to the following provisions:

Right of First Refusal to Significant Holders. The Company hereby grants to each Significant Holder the right of first refusal to purchase its pro rata share of New Securities (as defined in this Section 4.1(a)) which the Company may, from time to time, propose to sell and issue after the date of this Agreement. A Significant Holder’s pro rata share, for purposes of this right of first refusal, is equal to the ratio of (a) the number of shares of Common Stock owned by such Significant Holder immediately prior to the issuance of New Securities (assuming full conversion of the Shares and full conversion or exercise of all outstanding convertible securities, rights, options and warrants, directly or indirectly, into Common Stock warrants held by said such Significant Holder) to (b) the total number of shares of Common Stock outstanding immediately prior to the issuance of New Securities (assuming full conversion of the Shares and full conversion or exercise of all outstanding convertible securities, rights, options and warrants, directly or indirectlywarrants and all securities reserved for issuance under the Company’s stock plans). Each Significant Holder shall have a right of over-allotment such that if any Significant Holder fails to exercise its right hereunder to purchase its pro rata share of New Securities, the other Significant Holders may purchase the non-purchasing Significant Holder’s portion on a pro rata basis until all such New Securities as to which the Significant Holders had a right of first refusal have been subscribed forbasis. This right of first refusal shall be subject to the following provisions:

Right of First Refusal to Significant Holders. The Company hereby grants to each Holder who owns at least 10,000 Shares or Conversion Stock (as presently constituted and subject to subsequent adjustments for stock splits, stock dividends, reverse stock splits and the like) (the “Significant Holder Holders”), the right of first refusal to purchase its pro rata share of New Securities (as defined in this Section 4.1(a)) which the Company may, from time to time, propose to sell and issue after the date of this Agreement. A Significant Holder’s pro rata share, for purposes of this right of first refusal, is equal to the ratio of (a) the number of shares of Common Stock owned by such Significant Holder immediately prior to the issuance of New Securities (assuming full conversion of the Shares and full conversion or exercise of all outstanding convertible securities, rights, options and warrants, directly or indirectly, into Common Stock warrants held by said Significant Holder) to (b) the total number of shares of Common Stock outstanding immediately prior to the issuance of New Securities (assuming full conversion of the Shares and full conversion or exercise of all outstanding convertible securities, rights, options and warrants, directly or indirectly). Each Significant Holder shall have a right of over-allotment such that if any Significant Holder fails to exercise its right hereunder to purchase its pro rata share of New Securities, the other Significant Holders may purchase the non-purchasing Significant Holder’s portion on a pro rata basis until all such New Securities as to which the Significant Holders had a right of first refusal have been subscribed forbasis. This right of first refusal shall be subject to the following provisions:

Right of First Refusal to Significant Holders. The Company hereby grants to each Holder who owns at least 10,000 Shares or Conversion Stock (as presently constituted and subject to subsequent adjustments for stock splits, stock dividends, reverse stock splits and the like) (the “Significant Holder Holders”), the right of first refusal to purchase its pro rata share of New Securities (as defined in this Section 4.1(a)) which the Company may, from time to time, propose to sell and issue after the date of this Agreement. A Significant Holder’s pro rata share, for purposes of this right of first refusal, is equal to the ratio of (a) the number of shares of Common Preferred Stock owned by such Significant Holder immediately prior to the issuance of New Securities (assuming full conversion of the Shares and or exercise of all outstanding convertible securities, rights, options and warrants, directly or indirectly, into Common warrants for Preferred Stock held by said Significant Holder) to (b) the total number of shares of Common Preferred Stock outstanding immediately prior to the issuance of New Securities (assuming full conversion of the Shares and or exercise of all outstanding convertible securities, rights, options and warrants, directly or indirectlywarrants for Preferred Stock). Each Significant Holder shall have a right of over-allotment such that if any Significant Holder fails to exercise its right hereunder to purchase its pro rata share of New Securities, the other Significant Holders may purchase the non-purchasing Significant Holder’s portion on a pro rata basis until all such New Securities as to which the Significant Holders had a right of first refusal have been subscribed forbasis. This right of first refusal shall be subject to the following provisions:”

Right of First Refusal to Significant Holders. The Company hereby grants to each Significant Holder Holder, the right of first refusal to purchase its pro rata share of New Securities (as defined in this Section 4.1(a)) which the Company may, from time to time, propose to sell and issue after the date of this Agreement. For the purposes of this Section 4.1(a), “Significant Holder” shall include any general partners and affiliates of a Significant Holder. A Significant Holder shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and affiliates in such proportions as it deems appropriate. A Significant Holder’s pro rata share, for purposes of this right of first refusal, is equal to the ratio of (a) the number of shares of Common Stock Ordinary Shares owned by such Significant Holder immediately prior to the issuance of New Securities (assuming full conversion of the Shares and exercise of all outstanding convertible securities, rights, options and warrants, directly or indirectly, into Common Stock Ordinary Shares held by said Significant Holder) to (b) the total number of shares of Common Stock Ordinary Shares outstanding immediately prior to the issuance of New Securities (assuming full conversion of the Shares and exercise of all outstanding convertible securities, rights, options and warrants, directly or indirectly). Each Significant Holder shall have a right of over-allotment such that if any Significant Holder fails to exercise its right hereunder to purchase its pro rata share of New Securities, the other Significant Holders who exercise their purchase rights hereunder may purchase the non-purchasing Significant Holder’s Holder(s)’ portion on a pro rata basis until all or on such New Securities other basis as to which they may mutually agree (the Significant Holders had a right of first refusal have been subscribed for. This right of first refusal shall be subject to the following provisions:“Over-Allotment Option”).

Right of First Refusal to Significant Holders. The Company hereby grants to each Significant Holder Holder, the right of first refusal to purchase its pro rata share of New Securities (as defined in this Section 4.1(a)) which the Company may, from time to time, propose to sell and issue after the date of this Agreement. A Significant Holder’s pro rata share, for purposes of this right of first refusal, is equal to the ratio of (a) the number of shares of Common Stock Registrable Securities owned by such Significant Holder immediately prior to the issuance of New Securities (assuming full conversion of the Shares and exercise of all outstanding convertible securities, rights, options and warrants, directly or indirectly, into Common Stock held by said Significant Holder) to (b) the total number of shares of Common Stock Registrable Securities outstanding immediately prior to the issuance of New Securities (assuming full conversion of the Shares and exercise of all outstanding convertible securities, rights, options and warrants, directly or indirectly, held by all of the Significant Holders). Each Significant Holder shall have a right of over-allotment such that if any Significant Holder fails to exercise its right hereunder to purchase its pro rata share of New Securities, the other Significant Holders may purchase the non-purchasing Significant Holder’s portion on a pro rata basis until all such New Securities as to which the Significant Holders had a right of first refusal have been subscribed for. This right of first refusal shall be subject to the following provisions:basis.

Right of First Refusal to Significant Holders. The Company hereby grants to each Holder who owns at least 1,000,000 Series A Shares or Series A Conversion Stock (as presently constituted and subject to subsequent adjustments for stock splits, stock dividends, reverse stock splits and the like) (the “Significant Holder Holders”), the right of first refusal to purchase its pro rata share of New Securities (as defined in this Section 4.1(a)) which the Company may, from time to time, propose to sell and issue after the date of this Agreement. A Significant Holder’s pro rata share, for purposes of this right of first refusal, is equal to the ratio of (a) the number of shares of Common Stock Registrable Securities owned by such Significant Holder immediately prior to the issuance of New Securities (assuming full conversion of the Shares and exercise of all outstanding convertible securities, rights, options and warrants, directly or indirectly, into Common Stock held by said Significant Holder) to (b) the total number of shares of Common Stock outstanding [ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. immediately prior to the issuance of New Securities (assuming full conversion of the Shares and exercise of all outstanding convertible securities, rights, options and warrants, directly or indirectly). Each Significant Holder shall have a right of over-allotment such that if any Significant Holder fails to exercise its right hereunder to purchase its pro rata share of New Securities, the other Significant Holders may purchase the non-purchasing Significant Holder’s portion on a pro rata basis until based upon the number of Registrable Securities held by such Significant Holder as compared to the Registrable Securities held by all such New Securities as to which the Significant Holders had a exercising such over-allotment right. A Significant Holder who chooses to exercise the right of first refusal have been subscribed formay designate as purchasers under such right itself or its partners or affiliates in such proportions as it deems appropriate. This right of first refusal shall be subject to the following provisions:

Right of First Refusal to Significant Holders. The Company hereby grants to each Holder who owns at least 500,000 Shares or Conversion Stock (as presently constituted and subject to subsequent adjustments for stock splits, stock dividends, reverse stock splits and the like) (the “Significant Holder Holders”), the right of first refusal to purchase its pro rata share of New Securities (as defined in this Section 4.1(a)) which the Company may, from time to time, propose to sell and issue after the date of this Agreement. A Significant Holder’s pro rata share, for purposes of this right of first refusal, is equal to the ratio of (a) the number of shares of Common Stock owned by such Significant Holder immediately prior to the issuance of New Securities (assuming full conversion of the Shares and full conversion or exercise of all outstanding convertible securities, rights, options and warrants, directly or indirectly, into Common Stock warrants held by said such Significant Holder) to (b) the total number of shares of Common Stock outstanding immediately prior to the issuance of New Securities (assuming full conversion of the Shares and full conversion or exercise of all outstanding convertible securities, rights, options and warrants, directly or indirectlywarrants and all securities reserved for issuance under the Company’s stock plans). Each Significant Holder shall have a right of over-allotment such that if any Significant Holder fails to exercise its right hereunder to purchase its pro rata share of New Securities, the other Significant Holders may purchase the non-purchasing Significant Holder’s portion on a pro rata basis until all such New Securities as to which the Significant Holders had a right of first refusal have been subscribed forbasis. This right of first refusal shall be subject to the following provisions:

Right of First Refusal to Significant Holders. The Company hereby grants to each Investor who owns at least 10,000 Shares or shares of the Company’s Common Stock issued upon conversion of the Shares (the “Conversion Stock”) (as presently constituted and subject to subsequent adjustments for stock splits, stock dividends, reverse stock splits and the like) (the “Significant Holder Holders”), the right of first refusal to purchase its pro rata share of New Securities (as defined in this Section 4.1(a1.1(a)) which the Company may, from time to time, propose to sell and issue after the date of this Agreement. A Significant Holder’s pro rata share, for purposes of this right of first refusal, is equal to the ratio of (a) the number of shares of Common Stock owned by such Significant Holder immediately prior to the issuance of New Securities (assuming full conversion of the Shares and exercise of all outstanding convertible securities, rights, options and warrants, directly or indirectly, into Common Stock held by said Significant Holder) to (b) the total number of shares of Common Stock outstanding immediately prior to the issuance of New Securities (assuming full conversion of the Shares and exercise of all outstanding convertible securities, rights, options and warrants, directly or indirectly, held by all of the Significant Holders). Each Significant Holder (a) “New Securities” shall have a right mean any capital stock (including Common Stock and/or Preferred Stock) of over-allotment such that if any Significant Holder fails to exercise its right hereunder the Company whether now authorized or not, and rights, convertible securities, options or warrants to purchase its pro rata share such capital stock, and securities of any type whatsoever that are, or may become, exercisable or convertible into capital stock; provided that the term “New Securities, the other Significant Holders may purchase the non-purchasing Significant Holder’s portion on a pro rata basis until all such New Securities as to which the Significant Holders had a right of first refusal have been subscribed for. This right of first refusal shall be subject to the following provisions” does not include:

Right of First Refusal to Significant Holders. The Company hereby grants to each Holder who owns at least 10,000 Shares or Conversion Stock (as presently constituted and subject to subsequent adjustments for stock splits, stock dividends, reverse stock splits and the like) (the “Significant Holder Holders”), the right of first refusal to purchase its pro rata share of New Securities (as defined in this Section 4.1(a)) which the Company may, from time to time, propose to sell and issue after the date of this Agreement. A Significant Holder’s pro rata share, for purposes of this right of first refusal, is equal to the ratio of (a) the number of shares of Common Preferred Stock owned by such Significant Holder immediately prior to the issuance of New Securities (assuming full conversion of the Shares and or exercise of all outstanding convertible securities, rights, options and warrants, directly or indirectly, into Common warrants for Preferred Stock held by said Significant Holder) to (b) the total number of shares of Common Preferred Stock outstanding immediately prior to the issuance of New Securities (assuming full conversion of the Shares and or exercise of all outstanding convertible securities, rights, options and warrants, directly or indirectlywarrants for Preferred Stock). Each Significant Holder shall have a right of over-allotment such that if any Significant Holder fails to exercise its right hereunder to purchase its pro rata share of New Securities, the other Significant Holders may purchase the non-purchasing Significant Holder’s portion on a pro rata basis until all such New Securities as to which the Significant Holders had a right of first refusal have been subscribed forbasis. This right of first refusal shall be subject to the following provisions:

Right of First Refusal to Significant Holders. The Company hereby grants to each Significant Holder and to each Licensor the right of first refusal to purchase its pro rata share of New Securities (as defined in this Section 4.1(a)) below) which the Company may, from time to time, propose to sell and issue after the date of this Agreement. A Significant Holder’s The pro rata shareshare for each Significant Holder and each Licensor, for purposes of this right of first refusal, is equal to the ratio of (a) the number of shares of Common Stock owned by such Significant Holder or Licensor immediately prior to the issuance of New Securities (assuming full conversion of the Shares and full conversion or exercise of all outstanding convertible securities, rights, options and warrants, directly or indirectly, into Common Stock warrants held by said such Significant HolderHolder or Licensor) to (b) the total number of shares of Common Stock outstanding immediately prior to the issuance of New Securities (assuming full conversion of the Shares and full conversion or exercise of all outstanding convertible securities, rights, options and warrants, directly or indirectlywarrants and including any shares of Common Stock reserved for issuance under the Company’s 2013 Equity Incentive Plan). Each Significant Holder and each Licensor shall have a right of over-allotment such that if any Significant Holder or Licensor fails to exercise its right hereunder to purchase its pro rata share of New Securities, the other Significant Holders and other Licensors may purchase that portion of the non-purchasing Significant Holder’s portion Holder or non-purchasing Licensor on a pro rata basis until all such New Securities as to which the Significant Holders had a right of first refusal have been subscribed forbasis. This right of first refusal shall be subject to the following provisions:

Right of First Refusal to Significant Holders. The Company hereby grants to each Significant Holder the right of first refusal to purchase its pro rata share of New Securities (as defined in this Section 4.1(a)) which the Company may, from time to time, propose to sell and issue after the date of this AgreementAgreement if (A) such New Securities are being offered to the Investors or any of their Affiliates or (B) such New Securities are being sold to one or more third parties not including the Investors or any of their Affiliates for cash at a pre-money equity valuation that values the common stock (on a fully-diluted basis) at less than $5.61178 (as adjusted for any stock split, combination of shares, reorganization, recapitalization, reclassification or other similar event). A Significant Holder’s pro rata share, for purposes of this right of first refusal, is equal to the ratio of of: (ax) the number of shares of Common Stock owned by such Significant Holder immediately prior to the issuance of New Securities (assuming full conversion of the Shares and exercise of all outstanding convertible securities, rights, options and warrants, directly or indirectly, into Common Stock held by said Significant Holder) to (by) the total number of shares of Common Stock outstanding immediately prior to the issuance of New Securities (assuming full conversion of the Shares and exercise of all outstanding convertible securities, rights, options and warrants, directly or indirectly). Each Significant Holder shall have a right of over-allotment such that if any Significant Holder fails to exercise its right hereunder to purchase its pro rata share of New Securities, the other Significant Holders who exercise their purchase rights hereunder may purchase the non-purchasing Significant Holder’s Holder(s)’ portion on a pro rata basis until all such New Securities as to which (the Significant Holders had a right of first refusal have been subscribed for. This right of first refusal shall be subject to the following provisions:“Over-Allotment Option”).

Right of First Refusal to Significant Holders. The Except as provided in Section 4.1(d), the Company hereby grants to each Significant Holder the right of first refusal to purchase its all or a portion of such Holder’s pro rata share of New Securities (as defined in this Section 4.1(a)) which the Company may, from time to time, propose to sell and issue after the date of this Agreement. A Significant Holder’s pro rata share, for purposes of this right of first refusal, is equal to the ratio of (a) the number of shares of Common Stock (including shares of Common Stock issued or issuable upon conversion of Preferred Stock and any other securities exercisable or convertible, directly or indirectly into shares of Common Stock) owned by such Significant Holder immediately prior to the issuance of New Securities (assuming full conversion of the Shares and exercise of all outstanding convertible securities, rights, options and warrants, directly or indirectly, into Common Stock held by said Significant Holder) to (b) the total number of shares of Common Stock (including shares of Common Stock issued or issuable upon conversion of Preferred Stock and any other securities exercisable or convertible, directly or indirectly into shares of Common Stock) outstanding immediately prior to the issuance of New Securities Securities, less, in the case of clause (assuming full conversion b), the shares of the Shares and exercise of all outstanding convertible securities, rights, options and warrants, Common Stock issued or issuable directly or indirectly)indirectly in connection with the issuance of $1,245,000 of convertible subordinated promissory notes issued on April 7, 2008, pursuant to the second closing under that certain Note Purchase Agreement dated as of March 7, 2008. Each Significant Holder that elects to purchase or acquire its full pro rata share (each, a “Fully Exercising Significant Holder”) shall have a right of over-allotment such that if any Significant Holder fails to exercise its right hereunder to purchase its full pro rata share of New Securities, the other each Fully Exercising Significant Holder may purchase up to that portion of New Securities for which Significant Holders may purchase the non-purchasing Significant Holder’s portion on a pro rata basis until all were entitled to subscribe but that were not subscribed for by such New Securities as to which the Significant Holders had a right which is equal to the ratio of first refusal have been subscribed for(a) the number of shares of Common Stock (including shares of Common Stock issued or issuable upon conversion of Preferred Stock and any other securities exercisable or convertible, directly or indirectly into shares of Common Stock) then owned by such Fully Exercising Significant Holder to (b) the number of shares of Common Stock (including shares of Common Stock issued or issuable upon conversion of Preferred Stock and any other securities exercisable or convertible, directly or indirectly into shares of Common Stock) then owned by all Fully Exercising Significant Holders who wish to purchase such undersubscribed shares (such option, an “Overallotment Option”). This right of first refusal shall be is subject to the following provisions:

Right of First Refusal to Significant Holders. The Company hereby grants to each Significant Holder Holder, the right of first refusal to purchase its a pro rata share of New Securities (as defined in this Section 4.1(a)3.1) which the Company may, from time to time, propose to sell and issue after the date of this Agreementissue. A Significant Holder’s 's pro rata share, for purposes of this the right of first refusal, is equal to the ratio of (a) the number of shares of Common Stock owned by such Significant Holder immediately prior to the issuance of New Securities (Securities, assuming full conversion of the Shares and exercise of any option or warrant held by said Significant Holder, to the total number of shares of Common Stock outstanding immediately prior to the issuance of New Securities, assuming full conversion of the Shares and exercise of all outstanding convertible securities, rights, options and warrants, directly or indirectly, into warrants to acquire Common Stock held by said Significant Holder) to (b) the total number of shares of Common Stock outstanding immediately prior to the issuance of New Securities (assuming full conversion of the Shares and exercise of all outstanding convertible securities, rights, options and warrants, directly or indirectly)Company. Each Significant Holder shall have a right of over-allotment such that if any Significant Holder fails to exercise its right hereunder to purchase its pro rata share of New Securities, the other Significant Holders may purchase the non-purchasing Significant Holder’s 's portion on a pro rata basis until all within ten (10) days from the date such non-purchasing Significant Holder fails to exercise its right hereunder to purchase its pro rata share of New Securities as to which the Significant Holders had a right of first refusal have been subscribed forSecurities. This right of first refusal shall be subject to the following provisions:: (a) "NEW SECURITIES" shall mean any capital stock (including Common Stock and/or Preferred Stock) of the Company whether now authorized or not, and rights, options or warrants to purchase such capital stock, and securities of any type whatsoever that are, or may become, convertible into capital stock; provided that the term "New Securities" does not include: (i) shares of Common Stock issued or issuable to key employees and other persons (including, without limitation, directors, officers, consultants and scientific collaborators) employed or engaged by the Company pursuant to stock grants, option plans, purchase plans or other employee stock incentive programs or arrangements approved by the Board of Directors of the Company, or upon exercise of options or warrants granted to such parties pursuant to any such plan, program or arrangement; (ii) shares of Common Stock issued or issuable upon the exercise or conversion of options or convertible securities of the Company (including, without limitation, any Preferred Stock); (iii) shares of Common Stock issued or issuable as a dividend or distribution on the Company's securities or pursuant to any event for which adjustment is made pursuant to paragraph 4(e), 4(f) or 4(g) of the Third Amended and Restated Certificate of Incorporation of the Company; (iv) shares of Common Stock issued or issuable pursuant to the acquisition of another corporation by the Company by merger, purchase of substantially all of the assets or other reorganization or to a joint venture agreement, provided that such issuances are approved by the Board of Directors of the Company, including the directors which the holders of Series C Preferred Stock are entitled to elect pursuant to paragraph 5(d) of Article IV of the Third Amended and Restated Certificate of Incorporation of the Company; and (v) shares of Common Stock or Preferred Stock of the Company which are otherwise excluded by the affirmative vote or consent of the holders of a majority of the shares of Series C Preferred Stock then outstanding. -15- <PAGE> (b) In the event the Company proposes to undertake an issuance of New Securities, it shall give each Significant Holder written notice of its intention, describing the type of New Securities, and the price and the general terms upon which the Company proposes to issue the same. Each Significant Holder shall have ten (10) days after any such notice is mailed or delivered to agree to purchase such Significant Holder's pro rata share of such New Securities (which pro rata share, in the case of HP I, may include up to all of the New Securities) for the price and upon the terms specified in the notice by giving written notice to the Company and stating therein the quantity of New Securities to be purchased.

Right of First Refusal to Significant Holders. The Company hereby grants to each Significant Holder the right of first refusal to purchase its pro rata share of New Securities (as defined in this Section 4.1(a)) which the Company may, from time to time, propose to sell and issue after the date of this Agreement. For purposes of this Section 4.1, the term “Significant Holder” includes any Affiliates of a Significant Holder and with respect to any Permitted Founders Fund Entity shall include any other Permitted Founders Fund Entity. A Significant Holder shall be entitled to apportion the right of first refusal hereby granted it among itself and its Affiliates in such proportions as it deems appropriate. A Significant Holder’s pro rata share, for purposes of this right of first refusal, is equal to the ratio of (a) the number of shares of Common Stock owned by such Significant Holder immediately prior to the issuance of New Securities (assuming full conversion of the Shares and full conversion or exercise of all outstanding convertible securities, rights, options and warrants, directly or indirectly, into Common Stock warrants held by said Significant Holder) to (b) the total number of shares of Common Stock outstanding immediately prior to the issuance of New Securities (assuming full conversion of the Shares and full conversion or exercise of all outstanding convertible securities, rights, options and warrants, directly or indirectly). Each Significant Holder shall have a right of over-allotment such that if any Significant Holder fails to exercise its right hereunder to purchase its pro rata share of the New Securities, the other Significant Holders may purchase the non-purchasing Significant Holder’s portion on a pro rata basis until all such New Securities as to which the Significant Holders had a right of first refusal have been subscribed forbasis. This right of first refusal shall be subject to the following provisions:

Right of First Refusal to Significant Holders. The Company hereby grants to each Significant Holder Holder, the right of first refusal to purchase its pro rata share of New Securities (as defined in this Section 4.1(a)4.1) which the Company may, from time to time, propose to sell and issue after the date of this Agreement. A Significant Holder’s pro rata share, for purposes of this right of first refusal, is equal to the ratio of (a) the number of shares of Common Stock owned by such Significant Holder immediately prior to the issuance of New Securities (assuming full conversion of all the Shares Preferred Stock and full conversion or exercise of all outstanding convertible securities, rights, options and warrants, directly or indirectly, into Common Stock warrants held by said Significant Holder) to (b) the total number of shares of Common Stock of the Company then outstanding immediately prior to the issuance of New Securities (assuming full conversion of the Shares Preferred Stock and full conversion or exercise of all outstanding convertible securities, rights, options and warrants, directly or indirectly). Each Significant Holder shall have a right of over-allotment such that if any Significant Holder fails to exercise its right hereunder to purchase its pro rata share of New Securities, the other Significant Holders may purchase the non-purchasing Significant Holder’s portion on a pro rata basis until all basis. “New Securities” shall mean any capital stock (including Common Stock and/or Preferred Stock) of the Company whether now authorized or not, and rights, convertible securities, options or warrants to purchase such capital stock, and securities of any type whatsoever that are, or may become, exercisable or convertible into capital stock; provided that the term “New Securities” does not include (i) Exempted Securities (as to which such term is defined in the Significant Holders had a right of first refusal have been subscribed for. This right of first refusal shall be subject Restated Certificate) and (ii) any shares issued pursuant to the following provisions:Purchase Agreement.

Right of First Refusal to Significant Holders. The Company hereby grants to each Holder who owns at least 500,000 Shares or Conversion Stock (as presently constituted and subject to subsequent adjustments for stock splits, stock dividends, reverse stock splits and the like) (the “Significant Holder Holders”), the right of first refusal to purchase its pro rata share of New Securities (as defined in this Section 4.1(a)) which the Company may, from time to time, propose to sell and issue after the date of this Agreement. A Significant Holder’s pro rata share, for purposes of this right of first refusal, is equal to the ratio of (a) the number of shares of Common Stock owned by such Significant Holder immediately prior to the issuance of New Securities (assuming full conversion of the Shares and full conversion or exercise of all outstanding convertible securities, rights, options and warrants, directly or indirectly, into Common Stock warrants held by said such Significant Holder) to (b) the total number of shares of Common Stock outstanding immediately prior to the issuance of New Securities (assuming full conversion of the Shares and full conversion or exercise of all outstanding convertible securities, rights, options and warrants, directly or indirectly). Each Significant Holder shall have a right of over-allotment such that if any Significant Holder fails to exercise its right hereunder to purchase its pro rata share of New Securities, the other Significant Holders may purchase the non-purchasing Significant Holder’s portion on a pro rata basis until all such New Securities as to which the Significant Holders had a right of first refusal have been subscribed forbasis. This right of first refusal shall be subject to the following provisions:

Right of First Refusal to Significant Holders. (a) The Company hereby grants to each Significant Holder the right of first refusal to purchase its pro rata share of New Securities (as defined in this Section 4.1(a4.1(a)(i)) which the Company may, from time to time, propose to sell and issue after the date of this Agreement. A Significant Holder’s pro rata share, for purposes of this right of first refusal, is equal to the ratio of (ax) the number of shares of Common Stock owned by such Significant Holder immediately prior to the issuance of New Securities (assuming full conversion of the Shares and full conversion or exercise of all outstanding convertible securities, rights, options and warrants, directly or indirectly, into Common Stock warrants held by said Significant Holder) to (by) the total number of shares of Common Stock outstanding immediately prior to the issuance of New Securities (assuming full conversion of the Shares and full conversion or exercise of all outstanding convertible securities, rights, options and warrants, directly or indirectly). Each Significant Holder shall have a right of over-allotment such that if any Significant Holder fails to exercise its right hereunder to purchase its pro rata share of New Securities, the other Significant Holders may purchase the non-purchasing Significant Holder’s portion on a pro rata basis until all such New Securities as to which the Significant Holders had a right of first refusal have been subscribed for. This right of first refusal shall be subject to the following provisions:basis.