Common use of RIGHT OF FIRST REFUSAL UPON TRANSFER OF FIVE PERCENT STAKE Clause in Contracts

RIGHT OF FIRST REFUSAL UPON TRANSFER OF FIVE PERCENT STAKE. If the Investor (i) intends to sell Investor Securities (including the Investor Securities underlying any portion of the Warrants proposed to be sold) with Voting Power constituting five percent (5%) or more of the Total Voting Power of the Company, or (ii) intends to sell Investor Securities, (including the Investor Securities underlying any such portion of the Warrant) with Voting Power constituting less than five percent (5%) of the Total Voting Power of the Company to any person that beneficially owns five percent (5%) or more of the Total Voting Power of the Company, as indicated on a Schedule 13D or 13G filed with the SEC, in either case in a transaction other than in (a) a underwritten piggy-back offering in accordance with Section 2.4, above, (b) an underwritten public offering pursuant to Sections 2.2 of 2.3, above, (c) a tender offer, merger, reorganization, or consolidation of the Company, or (d) a sale of the Company Common Stock in a transaction where a majority of the Company Common Stock held by stockholders other than the Holders or a majority of Company Common Stock held by affiliates of the Company as defined in Rule 144 of the Securities Act is being sold, then Investor shall provide written notice thereof to the Company (the "Investor Notice") providing the Company with the first right to acquire the Company Common Stock the Holder intends to sell. The Investor Notice shall specify the number of Investor Securities involved, the name and address of the proposed purchaser, and the proposed price per share. For a period of seven (7) business days after delivery of the Investor Notice, the Company shall be entitled to elect to purchase all, but not less than all, of the Investor Securities described in the Investor Notice, at the price per share described in such notice. The Company may exercise such right by delivery of a written notice (a "Company Purchase Election") to the Investor, irrevocably electing to purchase such Investor Securities that the Holder intends to sell and shall have thirty (30) days to consummate said purchase from the Investor. In the event that the Company has not delivered a Company Purchase Election prior to the expiration of such seven (7) day period or has failed to purchase and pay for such Investor Securities within said thirty (30) day period, the Company's right to purchase such Investor Securities shall expire, and the Investor or its Majority Owned Subsidiary shall be entitled to sell the Investor Securities described in the Investor Notice for a period of one hundred twenty (120) days following the date of the Investor Notice, but only to the proposed purchaser set forth in the Investor Notice (or any Majority Owned Subsidiary thereof) and only for a purchase price of at least ninety-five (95%) of the purchase price set forth in the Investor Notice. In the event the Investor or Majority Owned Subsidiary has not sold such Investor Securities by the end of such 90-day period, the rights of the Company set forth above in this Section shall apply to any subsequent sale of the Company Stock in excess of the threshold amount by the Investor or its Majority Owned Subsidiary. Notwithstanding the foregoing, the provisions of this Section shall not apply to any sales or other transfers by the Investor to any of its Majority Owned Subsidiaries.

RIGHT OF FIRST REFUSAL UPON TRANSFER OF FIVE PERCENT STAKE. If the Investor (ia) intends to sell Investor Securities (including the Investor Securities underlying any portion of the Warrants proposed to be sold) with Voting Power constituting five percent (5%) or more of the Total Voting Power of the Company, or (iib) intends to sell Investor Securities, (including the Investor Securities underlying any such portion of the Warrant) with Voting Power constituting less than five percent (5%) of the Total Voting Power of the Company to any person that beneficially owns five percent (5%) or more of the Total Voting Power of the Company, as indicated on a Schedule 13D or 13G filed with the SEC, in either case in a transaction other than in (ai) a an underwritten piggy-back offering in accordance with Section 2.4, above, (bii) an underwritten public offering pursuant to Sections 2.2 of 2.3, or 2.3 above, (ciii) a tender offer, merger, reorganization, or consolidation of the Company, or (div) a sale of the Company Common Stock in a transaction where a majority of the Company Common Stock held by stockholders other than the Holders or a majority of Company Common Stock held by affiliates of the Company as defined in Rule 144 of the Securities Act is being sold, then Investor shall provide written notice thereof to the Company (the "Investor NoticeINVESTOR NOTICE") providing the Company with the first right to acquire the Company Common Stock the Holder intends to sell. The Investor Notice shall specify the number of Investor Securities involved, the name and address of the proposed purchaser, and the proposed price per share. For a period of seven (7) business days after delivery of the Investor Notice, the Company shall be entitled to elect to purchase all, but not less than all, of the Investor Securities described in the Investor Notice, at the price per share described in such notice. The Company may exercise such right by delivery of a written notice (a "Company Purchase ElectionCOMPANY PURCHASE ELECTION") to the Investor, irrevocably electing to purchase such Investor Securities that the Holder intends to sell and shall have thirty (30) days to consummate said purchase from the Investor. In the event that the Company has not delivered a Company Purchase Election prior to the expiration of such seven (7) day period or has failed to purchase and pay for such Investor Securities within said thirty (30) day period, the Company's right to purchase such Investor Securities shall expire, and the Investor or its Majority Owned Subsidiary shall be entitled to sell the Investor Securities described in the Investor Notice for a period of one hundred twenty (120) days following the date of the Investor Notice, but only to the proposed purchaser set forth in the Investor Notice (or any Majority Owned Subsidiary thereof) and only for a purchase price of at least ninety-five percent (95%) of the purchase price set forth in the Investor Notice. In the event the Investor or Majority Owned Subsidiary has not sold such Investor Securities by the end of such ninety (90-) day period, the rights of the Company set forth above in this Section shall apply to any subsequent sale of the Company Common Stock in excess of the threshold amount by the Investor or its Majority Owned Subsidiary. Notwithstanding the foregoing, the provisions of this Section shall not apply to any sales or other transfers by the Investor to any of its Majority Owned Subsidiaries.

RIGHT OF FIRST REFUSAL UPON TRANSFER OF FIVE PERCENT STAKE. If In circumstances other than those described in Section 8.2, if the Investor (i) intends to sell Investor Securities Voting Stock (including the Investor Securities Voting Stock underlying any portion of the Warrants proposed to be sold) with Voting Power constituting more than five percent (5%) or more of the Total Voting Power of the Company, (or (ii) intends to sell Investor Securities, Voting Stock (including the Investor Securities Voting Stock underlying any such portion of the Warrant) with Voting Power constituting less than five percent (5%) of the Total Voting Power of the Company to any person that which beneficially owns five percent (5%) or more of the Total Voting Power of the Company, as indicated on a Schedule 13D or 13G filed with the SEC), in either case in a transaction other than in (a) a underwritten piggy-back offering in accordance with Section 2.4, above, (b) an underwritten public offering pursuant to Sections 2.2 of 2.3, above, (c) a tender offer, merger, reorganization, or consolidation of the Company, or (d) a sale of the Company Common Stock in a transaction where a majority of the Company Common Stock held by stockholders other than the Holders or a majority of Company Common Stock held by affiliates of the Company as defined in Rule 144 of the Securities Act is being sold, then Investor shall provide written notice thereof to the Company (the "Investor Notice") providing the Company with the first right to acquire the Company Common Stock the Holder intends to sell). The Investor Notice shall specify the number of Investor Securities Shares involved, the name and address of the proposed purchaser, and the proposed price per shareShare. For a period of seven five (75) business days after delivery of the Investor Notice, the Company shall be entitled to elect to purchase all, but not less than all, of the Investor Securities Shares described in the Investor Notice, at the price per share described in such notice. The Company may exercise such right , by delivery of a written notice (a "Company Purchase Election") to the Investor, Investor irrevocably electing to purchase such Investor Securities that the Holder intends to sell Shares and shall have thirty (30) business days to consummate said purchase from the Investor. In the event that the Company has not delivered a Company Purchase Election prior to the expiration of such seven five (75) business-day period or has failed to purchase and pay for such Investor Securities Shares within said thirty (30) 30)-business day period, the Company's right to purchase such Investor Securities Shares shall expire, and the Investor or its Majority Owned Subsidiary shall be entitled to sell the Investor Securities Shares described in the Investor Notice for a period of one hundred twenty ninety (12090) days following the date expiration of the Investor Noticesuch 90- day period, but only to the proposed purchaser set forth in the Investor Notice (or any Majority Owned Subsidiary thereof) and only for a purchase price of equal to at least ninety-five (95%) of the purchase price set forth in the Investor Notice. In the event the Investor or Majority Owned Subsidiary has not sold such Investor Securities Shares by the end of such 90-day period, the rights of the Company set forth above in this Section 8.3 shall apply to any subsequent sale of the Company Stock in excess of the threshold amount sales by the Investor or its Majority Owned Subsidiary. Notwithstanding the foregoing, the provisions of this Section 8.3 shall not apply to any sales or other transfers by the Investor to any of its Majority Owned SubsidiariesSubsidiary.

RIGHT OF FIRST REFUSAL UPON TRANSFER OF FIVE PERCENT STAKE. If the Investor (ia) intends to sell Investor Securities (including the Investor Securities underlying any portion of the Warrants proposed to be sold) with Voting Power constituting five percent (5%) or more of the Total Voting Power of the Company, or (iib) intends to sell Investor Securities, (including the Investor Securities underlying any such portion of the Warrant) with Voting Power constituting less than five percent (5%) of the Total Voting Power of the Company to any person that beneficially owns five percent (5%) or more of the Total Voting Power of the Company, as indicated on a Schedule 13D or 13G filed with the SEC, in either case in a transaction other than in (ai) a an underwritten piggy-back offering in accordance with Section 2.4, 15 above, (bii) an underwritten public offering pursuant to Sections 2.2 of 2.3, or 2.3 above, (ciii) a tender offer, merger, reorganization, or consolidation of the Company, or (div) a sale of the Company Common Stock in a transaction where a majority of the Company Common Stock held by stockholders other than the Holders or a majority of Company Common Stock held by affiliates of the Company as defined in Rule 144 of the Securities Act is being sold, then Investor shall provide written notice thereof to the Company (the "Investor NoticeINVESTOR NOTICE") providing the Company with the first right to acquire the Company Common Stock the Holder intends to sell. The Investor Notice shall specify the number of Investor Securities involved, the name and address of the proposed purchaser, and the proposed price per share. For a period of seven (7) business days after delivery of the Investor Notice, the Company shall be entitled to elect to purchase all, but not less than all, of the Investor Securities described in the Investor Notice, at the price per share described in such notice. The Company may exercise such right by delivery of a written notice (a "Company Purchase ElectionCOMPANY PURCHASE ELECTION") to the Investor, irrevocably electing to purchase such Investor Securities that the Holder intends to sell and shall have thirty (30) days to consummate said purchase from the Investor. In the event that the Company has not delivered a Company Purchase Election prior to the expiration of such seven (7) day period or has failed to purchase and pay for such Investor Securities within said thirty (30) day period, the Company's right to purchase such Investor Securities shall expire, and the Investor or its Majority Owned Subsidiary shall be entitled to sell the Investor Securities described in the Investor Notice for a period of one hundred twenty (120) days following the date of the Investor Notice, but only to the proposed purchaser set forth in the Investor Notice (or any Majority Owned Subsidiary thereof) and only for a purchase price of at least ninety-five percent (95%) of the purchase price set forth in the Investor Notice. In the event the Investor or Majority Owned Subsidiary has not sold such Investor Securities by the end of such ninety (90-) day period, the rights of the Company set forth above in this Section shall apply to any subsequent sale of the Company Common Stock in excess of the threshold amount by the Investor or its Majority Owned Subsidiary. Notwithstanding the foregoing, the provisions of this Section shall not apply to any sales or other transfers by the Investor to any of its Majority Owned Subsidiaries.