Common use of Right of Participation Clause in Contracts

Right of Participation. In connection with each private placement of equity securities (“New Securities”) effected by the Company after the date of this agreement pursuant to an exemption from registration under the Securities Act of 1933, as amended, up to an aggregate amount of $16.9 million (each a “Private Placement” and collectively the “Private Placements”), the Company shall give each of the Series E Holders written notice (the “Rights Notice”) of each applicable Private Placement describing the New Securities, the price, the general terms upon which the Company proposes to issue such New Securities, and the number of New Securities that such Series E Holder has the right to purchase in each Private Placement under this Section 4. Each such Series E Holder shall have five (5) calendar days from delivery of the Rights Notice to agree to purchase all or any part of its pro rata share (as defined below) of such New Securities to be issued in the applicable Private Placement by giving written notice to the Company setting forth the quantity of New Securities to be purchased. A failure to provide the Company with written notice setting forth the quantity of New Securities to be purchased by any such Series E Holder in accordance with this Section 4 shall be deemed to be a waiver by such Series E Holder of its right to purchase any portion of its pro rata portion of such New Securities in the applicable Private Placement. For purposes of this Section 4, each Series E Holder’s “pro rata share” of New Securities to be issued in each Private Placement shall be (i) a fraction, the numerator of which shall be the number of shares of Series E Preferred Stock held by such Series E Holder as of the date hereof, and the denominator of which shall be 561.3, times (ii) one third of the aggregate dollar amount of the New Securities to be issued in the applicable Private Placement. For purposes of clarification, once the Series E Holders have collectively been offered the right to purchase 33 1/3% of New Securities issued by the Company after the date hereof aggregating up to $16.9 million, the right of participation set forth in this Section 4 shall be of no further force or effect.

Right of Participation. In connection with The Company hereby grants to each private placement Significant Holder the right to purchase its pro rata share of equity securities (“any New Securities which the Company may, from time to time, propose to sell and issue. A Significant Holder’s pro rata share, for purposes of this right of participation, is the ratio of the number of shares of Common Stock issuable or issued upon conversion of the Series A Preferred Stock owned by such Significant Holder immediately prior to the issuance of New Securities”, to the total number of shares of Common Stock outstanding as reported in the Company’s most recent Form 10-K or Form 10-Q, as the case may be, filed with the SEC under the Exchange Act. This right to participate shall be subject to the following provisions: (a) effected by In the event the Company after the date proposes to undertake an issuance of this agreement pursuant to an exemption from registration under the Securities Act of 1933New Securities, as amended, up to an aggregate amount of $16.9 million (each a “Private Placement” and collectively the “Private Placements”), the Company it shall give each of the Series E Holders Significant Holder written notice (the “Rights Notice”) of each applicable Private Placement its bona fide intention, describing the type of New Securities, the price, and their price and the general terms upon which the Company proposes to issue such New Securities, and the number of New Securities that such Series E Holder has the right to purchase in each Private Placement under this Section 4same. Each such Series E Significant Holder shall have five (5ten days after any such notice is effective as determined pursuant to Section 19(b) calendar days from delivery of the Rights Notice hereof to agree to purchase all or any part of its such Significant Holder’s pro rata share (as defined below) of such New Securities to be issued for the price and upon the terms specified in the applicable Private Placement notice by giving written notice to the Company setting forth and stating therein the quantity of New Securities to be purchased. A failure . (b) In the event the Significant Holders fail to provide exercise fully the right to participate within said ten day period, the Company with written notice setting forth shall have 90 days thereafter to sell or enter into an agreement (pursuant to which the quantity sale of New Securities covered thereby shall be closed, if at all, within 30 days from the date of said agreement) to be purchased by any sell the New Securities respecting which the Significant Holders’ right to participate set forth herein 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 pursuant to subsection (a) above. In the event the Company has not sold within such Series E Holder 90 day period or entered into an agreement to sell the New Securities in accordance with this Section 4 the foregoing within 30 days from the date of said agreement, the Company shall be deemed not thereafter issue or sell any New Securities, without first again offering such securities to be a waiver by such Series E Holder of its right to purchase any portion of its pro rata portion of such New Securities the Significant Holders in the applicable Private Placement. For purposes of this Section 4, each Series E Holder’s “pro rata share” of New Securities to be issued manner provided in each Private Placement shall be subsection (ia) a fraction, the numerator of which shall be the number of shares of Series E Preferred Stock held by such Series E Holder as of the date hereof, and the denominator of which shall be 561.3, times (ii) one third of the aggregate dollar amount of the New Securities to be issued in the applicable Private Placement. For purposes of clarification, once the Series E Holders have collectively been offered the right to purchase 33 1/3% of New Securities issued by the Company after the date hereof aggregating up to $16.9 million, the right of participation set forth in this Section 4 shall be of no further force or effectabove.

Right of Participation. In connection with each private placement of equity securities (“New Securities”) effected by Subject to the Company exceptions described below, during the period beginning on the date which is six months after the Closing Date and ending on and including the date of this agreement pursuant to an exemption from registration under which is one year after the Securities Act of 1933, as amended, up to an aggregate amount of $16.9 million (each a “Private Placement” and collectively the “Private Placements”)Closing Date, the Company and its Subsidiaries shall give each not contract with any party for any equity financing (including any debt financing with an equity component) or issue any equity securities of the Series E Holders Company or any Subsidiary or securities convertible into or exchangeable for equity securities of the Company or any Subsidiary (including debt securities with an equity component) in any form ("Participation Offering"), unless it shall have first delivered to each Buyer, or a designee appointed by such Buyer, a written notice (the “Rights "Participation Offering Notice”") of each applicable Private Placement describing the New Securitiesproposed Participation Offering, including the pricesize, the general terms upon which the Company proposes to issue such New Securitiesand conditions thereof, and the number of New Securities that such Series E Holder has the right providing each Buyer an option to purchase in each Private Placement under this Section 4. Each such Series E Holder shall have five (5) calendar days from delivery of the Rights Notice up to agree to purchase all or any part of its pro rata share Aggregate Participation Percentage (as defined below) of such New Securities the securities to be issued in such Participation Offering, as of the applicable Private Placement by giving written notice to date of delivery of the Company setting forth the quantity of New Securities to be purchased. A failure to provide the Company with written notice setting forth the quantity of New Securities to be purchased by any such Series E Holder in accordance with this Section 4 shall be deemed to be a waiver by such Series E Holder of its right to purchase any portion of its pro rata portion of such New Securities Participation Offering Notice, in the applicable Private PlacementParticipation Offering on the same terms and conditions as set forth in the Participation Offering Notice. The limitations referred to in this sentence are collectively referred to as the "Participation Raising Limitations"). For purposes of this Section 44(g), "Aggregate Participating Percentage" at any time with respect to any Buyer shall mean the percentage obtained by multiplying (I) 50% by (II) the quotient of (i) the aggregate principal amount of the Notes issued to such Buyer on the Closing Date by (ii) the aggregate principal amount of the Notes issued to all the Buyers on the Closing Date. A Buyer can exercise its option to participate in a Participation Offering by delivering written notice thereof to participate to the Company within ten (10) business days after receipt of a Participation Offering Notice, which notice shall state the quantity of securities being offered in the Participation Offering that such Buyer will purchase, up to its Aggregate Participating Percentage, and that number of securities it is willing to purchase in excess of its Aggregate Participating Percentage. In the event that one or more Buyers fail to elect to purchase up to each Series E Holder’s “such Buyer's Aggregate Participating Percentage of the Participation Offering, then each Buyer which has indicated that it is willing to purchase a number of securities in such Participation Offering in excess of its Aggregate Participating Percentage shall be entitled to purchase up to its pro rata share” portion (determined in the same manner as described in the preceding sentence) of New Securities the securities in the Participation Offering which one or more of the Buyers have not elected to be issued purchase. In the event the Buyers fail to elect to fully participate in each Private Placement the Participation Offering within the periods described in this Section 4(g), the Company shall be have 60 days thereafter to sell the securities of the Participation Offering that the Buyers did not elect to purchase, upon terms and conditions, no more favorable to the purchasers thereof than specified in the Participation Offering Notice. In the event the Company has not sold such securities of the Participation Offering within such 60 day period, the Company shall not thereafter issue or sell such securities without first offering such securities to the Buyers in the manner provided in this Section 4(g). The Participation Raising Limitations shall not apply to (i) a fractionloan from a commercial bank, (ii) the numerator Company's issuances of which shall be securities (A) as consideration in a merger or consolidation, (B) in connection with any strategic partnership or joint venture with any entity whose primary business is not investing in or advising other entities, (iii) the number issuance of shares Common Stock in a firm commitment, underwritten public offering, (iv) the issuance of Series E Preferred Stock held by such Series E Holder securities upon exercise or conversion of the Company's options, warrants or other convertible securities outstanding as of the date hereof, and hereof provided the denominator terms of which shall be 561.3, times (ii) one third of the aggregate dollar amount of the New Securities to be issued in the applicable Private Placement. For purposes of clarification, once the Series E Holders have collectively been offered the right to purchase 33 1/3% of New Securities issued by the Company such securities are not amended after the date hereof aggregating up and (v) the grant of additional options or warrants, or the issuance of additional securities, under any Company stock option plan, restricted stock plan or stock purchase plan for the benefit of the Company's employees, officers or directors for services provided to $16.9 million, the Company. The Buyers shall not be required to participate or exercise their right of participation set forth with respect to any particular Participation Offering in this Section 4 shall be order to exercise their right of no further force or effectparticipation with respect to later Participation Offerings.

Right of Participation. In connection with each private placement 8.7.1.1. Not fewer than thirty days prior to the consummation of equity securities the Issuance, a notice (“New Securities”the "Participation Notice") effected shall be furnished by the Company after to each holder of Equity Securities constituting Investor Securities. The Participation Notice shall include: (a) The principal terms of the date proposed Issuance, including without limitation the amount and kind of this agreement pursuant Subject Securities to an exemption from registration under be included in the Issuance, the maximum and minimum (which shall be not less than 90% of such maximum) price per unit of the Subject Securities Act and the name and address of 1933the Persons to whom the Subject Securities will be Issued (collectively, as amendedthe "Proposed Subscriber"); and (b) An offer by the Company to issue, at the option of such holder of Equity Securities constituting Investor Securities, to such holder of Equity Securities constituting Investor Securities, up to an aggregate amount such holder's Applicable Percentage of $16.9 million (each a “Private Placement” the Subject Securities which would be otherwise issued in the Issuance, on the same terms and collectively conditions as the “Private Placements”)Subject Securities are purchased by the Proposed Subscriber; provided, however, that if the Proposed Subscriber is purchasing the Subject Securities for noncash consideration, the Company shall give each holders of Equity Securities constituting Investor Securities may pay in cash the Series E Holders written notice fair market value (the “Rights Notice”) of each applicable Private Placement describing the New Securities, the price, the general terms upon which as agreed to by the Company proposes to issue and such New Securities, and the number of New Securities that such Series E Holder has the right to purchase in each Private Placement under this Section 4. Each such Series E Holder shall have five (5) calendar days from delivery of the Rights Notice to agree to purchase all or any part of its pro rata share (as defined belowholder) of such New noncash consideration. 8.7.1.2. If a holder of Investor Securities desires to accept the offer contained in the Participation Notice, it shall send, within twenty days after the effectiveness of the Participation Notice, a written commitment to the Company specifying the amount of Subject Securities (not in any event to exceed such holder's Applicable Percentage of the Subject Securities to be issued included in the applicable Private Placement by giving written notice to the Company setting forth the quantity of New Securities Issuance) which such holder desires to be purchasedissued. A failure to provide the Company with written notice setting forth the quantity If any holder of New Investor Securities to be purchased by any has not so accepted such Series E Holder in accordance with this Section 4 offer, such holder shall be deemed to be a waiver by such Series E Holder have waived (for itself and any transferee or assignee of its right to purchase any portion Investor Securities) all of its pro rata portion rights with respect to this Issuance, and the Company shall thereafter be free to issue the Subject Securities to the Proposed Subscriber, at a price no less than 95% of the minimum price set forth in the Participation Notice and on otherwise no more favorable terms in any material respect than as set forth in the Participation Notice, without any further obligation to such holder. If, prior to consummation, the terms of such New proposed Issuance shall change with the result that the price shall be less than 95% of the minimum price set forth in the Participation Notice, it shall be necessary for a separate Participation Notice to have been furnished, and the terms and provisions of this Section 8.7 separately complied with, in order to consummate such Issuance pursuant to this Section 8.7. The acceptance of such holder shall be irrevocable except as hereinafter provided, and such holder shall be bound and obligated to acquire in the Issuance on the same terms and conditions, with respect to each unit of Subject Securities issues in the Issuance, such amount of Subject Securities as such holder shall have specified in its written commitment. If at the end of the ninetieth (90th) day following the date of the effectiveness of the Participation Notice the Company has not completed the Issuance, any holder of Investor Securities who has accepted the offer in a Participation Notice shall be released from its obligations under the written commitment, the Participation Notice shall be null and void, and it shall be necessary for a separate Participation Notice to have been furnished, and the terms and provisions of this Section 8.7 separately complied with, in order to consummate such Issuance pursuant to this Section 8.7. 8.7.1.3. The Company may condition the participation of any holder of Investor Securities in an Issuance upon the purchase by it of any securities (including without limitation debt securities) other than Subject Securities ("Other Securities") in the event that the participation of the Proposed Subscriber in such Issuance is so conditioned. In such case, each holder of Investor Securities shall acquire in the Issuance, together with the Subject Securities to be acquired by it, Other Securities in the applicable Private Placement. For purposes of this Section 4, each Series E Holder’s “pro rata share” of New same proportion to the Subject Securities to be acquired by it as Other Securities are acquired by the Proposed Subscriber in proportion to the Subject Securities acquired in the Issuance by the Proposed Subscriber, on the same terms and conditions, as to each unit of Subject Securities and Other Securities issued in each Private Placement to the Proposed Subscriber, as the Proposed Subscriber shall be (i) a fractionissued units of Subject Securities and Other Securities. 8.7.1.4. Each holder of Investor Securities and its Affiliates shall take or cause to be taken all such reasonable actions as may be necessary or reasonably desirable in order expeditiously to consummate each Issuance pursuant to this Section 8.7 and any related transactions, including, without limitation, executing, acknowledging and delivering consents, assignments, waivers and other documents or instruments with governmental authorities; and otherwise cooperating with the Company; provided, however, that no holder of Investor Securities or any Affiliate thereof shall be required to agree to any amendment or modification of, or waiver under, or other change to, this Agreement, the numerator Investor Securities or any other Related Agreement. 8.7.1.5. All costs and expenses incurred by any holder of which Investor Securities or the Company in connection with any proposed Issuance of Subject Securities (whether or nor consummated), including without limitation all attorney's fees and charges, all accounting fees and charges and all finders, brokerage or investment banking fees, charges or commissions, shall be paid by the number Company; provided, however, that if a holder of shares Investor Securities or any of Series E Preferred Stock held its Affiliates retains separate legal counsel or other advisors in connection with such proposed Issuance, the fees and expenses of such separate attorneys or other advisors shall be borne by such Series E Holder holder. 8.7.1.6. The closing of an Issuance pursuant to Section 8.7 shall take place at such time and place as the Company shall specify by notice to each participating holder of Investor Securities. At the date hereofclosing of any Issuance under this Section 8.7, and the denominator such holders of which Investor Securities shall be 561.3delivered the notes, times certificates or other instruments evidencing the Subject Securities (iiand, if applicable, Other Securities) one third of the aggregate dollar amount of the New Securities to be issued to it, registered in the name of such holder of its designated nominee, free and clear of any Liens, with any transfer tax stamps affixed, against delivery by such holders of the applicable Private Placement. For purposes of clarification, once the Series E Holders have collectively been offered the right to purchase 33 1/3% of New Securities issued by the Company after the date hereof aggregating up to $16.9 million, the right of participation set forth in this Section 4 shall be of no further force or effectconsideration.

Right of Participation. In connection with each private placement If the Partnership proposes to issue any Units or debt securities of equity securities (“New Securities”) effected by the Company Partnership after the date of this agreement pursuant to an exemption from registration under the Securities Act of 1933, as amended, up to an aggregate amount of $16.9 million (each a “Private Placement” and collectively the “Private Placements”Effective Date other than those Units described in Section 4.1(e), the Company General Partner shall give each of the Series E Holders written notice to each Limited Partner at least thirty (30) days prior to the “Rights proposed issuance ("Participation Notice”) "). The Participation Notice shall specify the type and number of each applicable Private Placement describing Units or debt securities the New Securities, Partnership proposes to sell along with the price, terms and closing date of such proposed sale. Each Limited Partner must notify the general terms upon which General Partner in writing within fifteen (15) days of the Company proposes to issue receipt (as set forth in Section 13.1 hereof) of the Participation Notice whether such New Securities, and Limited Partner shall accept the number of New Securities that such Series E Holder has the right offer to purchase in each Private Placement under this Section 4. Each such Series E Holder shall have five (5) calendar days from delivery a portion of the Rights Notice to agree to purchase all Units or any part of its pro rata share (as defined below) of debt securities, such New Securities portion to be issued as set forth below, on the terms and at the price stipulated in the applicable Private Placement Participation Notice. If no response has been received by giving written notice to the Company setting forth General Partner from a Limited Partner at such time, the quantity of New Securities to be purchased. A failure to provide the Company with written notice setting forth the quantity of New Securities to be purchased by any such Series E Holder in accordance with this Section 4 Limited Partner shall be deemed to have refused the offer. The maximum number of Units or debt securities a Limited Partner electing to participate shall be a waiver by such Series E Holder of its right eligible to purchase any portion of its pro rata portion of such New Securities in the applicable Private Placement. For purposes of this Section 4, each Series E Holder’s “pro rata share” of New Securities to be issued in each Private Placement shall be equal to the total number of Units or debt securities offered multiplied by a fraction (i) a fraction, the numerator of which shall be is the number of shares of Series E Preferred Stock held Units then owned by such Series E Holder as of the date hereofLimited Partner, and (ii) the denominator of which is the total number of Units then owned by all Limited Partners electing to participate. The notice given by the Limited Partner must state the number of Units or debt securities the Limited Partner desires to purchase; provided, however, that the notice may indicate that the Limited Partner desires to purchase a greater percentage of the proposed offering than may be allocated to such Limited Partner in the event another Limited Partner fails to accept the entire amount of such other Limited Partner's allocation, such other Limited Partner's allocation being the "Nonparticipation Units." The closing of the proposed sale to the Limited Partners and to the third party (if the Limited Partners do not accept the entire proposed offering) shall be 561.3, times (ii) one third on the closing date and on the terms and conditions stipulated in the Participation Notice. If the proposed sale is not completed on such terms within six months from the date of the aggregate dollar amount Participation Notice, the Partnership may not issue Units or debt securities of the New Securities to be issued in the applicable Private Placement. For purposes of clarification, once the Series E Holders have collectively been offered the right to purchase 33 1/3% of New Securities issued by the Company after the date hereof aggregating up to $16.9 million, the right of participation set forth in Partnership without again complying with this Section 4 shall be of no further force or effect4.8.

Right of Participation. For the period ending on the twelve (12) month anniversary of the Closing Date (such period, the “Participation Period”), if the Company or any of its Subsidiaries proposes to offer and sell shares of Common Stock or Common Stock Equivalents (“Offered Securities”) to investors primarily for capital raising purposes (each, a “Future Offering”), each of the Purchasers shall have the right, but not the obligation, to participate in each such Future Offering in an amount up to an aggregate of 50% of the Offered Securities (the “Participation Right”). In the event that less than all of the Purchasers exercise their Participation Right in connection with any Future Offering, the portion of Offered Securities available to be purchased by those Purchasers that do not exercise their Participation Right shall be made available for purchase by those Purchasers who have exercised their Participation Right, such that participating Purchasers may purchase up to the full 50% of the Offered Securities subject to the Purchasers’ Participation Right. The Participation Right shall not apply to any Exempt Issuances. In connection with each private placement of equity securities (“New Securities”) effected by the Company after the date of this agreement pursuant to an exemption from registration under the Securities Act of 1933, as amended, up to an aggregate amount of $16.9 million (each a “Private Placement” and collectively the “Private Placements”)Participation Right, the Company shall give each of the Series E Holders written notice (the “Rights Notice”) of each applicable Private Placement describing the New Securities, the price, the general terms upon which the Company proposes to issue such New Securities, and the number of New Securities that such Series E Holder has the right to purchase in each Private Placement under this Section 4. Each such Series E Holder shall have five (5) calendar days from delivery of the Rights Notice to agree to purchase all or any part of its pro rata share (as defined below) of such New Securities to be issued in the applicable Private Placement by giving provide written notice to the Company setting forth Purchasers of the quantity terms and conditions of New Securities the Future Financing at least seven (7) Business Days prior to be purchasedthe anticipated first closing of such Future Financing (the “Financing Notice”). A failure If a Purchaser shall elect to provide exercise its Participation Right, such Purchaser shall notify the Company, in writing, of such election within three (3) Business Days after receipt of the Financing Notice (the “Participation Notice”). In the event the Purchaser does not return a Participation Notice to the Company with written notice setting forth the quantity of New Securities to be purchased by any within such Series E Holder in accordance with this Section 4 shall be deemed to be a waiver by such Series E Holder of its right to purchase any portion of its pro rata portion of such New Securities in the applicable Private Placement. For purposes of this Section 4, each Series E Holder’s “pro rata share” of New Securities to be issued in each Private Placement shall be three (i3) a fractionBusiness Day period, the numerator of which Participation Right granted hereunder shall be the number of shares of Series E Preferred Stock held by such Series E Holder as of the date hereof, terminate and the denominator of which shall be 561.3, times (ii) one third of the aggregate dollar amount of the New Securities to be issued in the applicable Private Placement. For purposes of clarification, once the Series E Holders have collectively been offered the right to purchase 33 1/3% of New Securities issued by the Company after the date hereof aggregating up to $16.9 million, the right of participation set forth in this Section 4 shall be of no further force or and effect; provided, however, that such Participation Right shall be reinstated in respect of the Future Offering in connection with which such Financing Notice was delivered if the anticipated closing referenced in the Financing Notice does not occur within thirty (30) days of the delivery of the Financing Notice and the Participation Period has not otherwise ended.

Right of Participation. In connection (a) To the extent any Guggenheim Entity shall propose to enter into an equity or debt financing transaction with each private placement of equity securities any Unrestricted Subsidiary (“New Securities”) effected by the Company after the date of this agreement other than pursuant to an exemption from registration under Section 9(b)), including issuing any equity, equity-linked or debt securities to any Guggenheim Entity, then at least ten (10) business days prior to the Securities Act closing of 1933, as amended, up to an aggregate amount of $16.9 million (each a “Private Placement” and collectively the “Private Placements”)such transaction, the Company shall give each of offer the Series E Holders Wellington Investors by written notice (the “Rights Wellington Participation Notice”) of each applicable Private Placement describing the New Securities, the price, the general terms upon which the Company proposes to issue such New Securities, and the number of New Securities that such Series E Holder has the right to purchase elect to participate in each Private Placement under this Section 4such transaction with such Unrestricted Subsidiary, up to 20% in the aggregate of the total transaction, on terms and conditions no less favorable to such Wellington Investors than the terms and conditions offered to such Guggenheim Entity(ies). Each such Series E Holder The Wellington Investors shall have five (5) calendar business days from delivery after receipt of the Rights such Wellington Participation Notice to agree to purchase all or any part of its pro rata share (as defined below) of such New Securities to be issued in the applicable Private Placement elect, by giving written notice to the Company setting forth Company, to participate in such transaction. The closing date for such transaction shall be no earlier than ten (10) business days after the quantity of New Securities to be purchased. A failure to provide date the Company delivers the applicable Wellington Participation Notice to the Wellington Investors. The Wellington Investors may assign their rights of participation under this Section 9(a) to any Wellington Entity. (b) To the extent any Wellington Entity shall propose to enter into an equity or debt financing transaction with any Unrestricted Subsidiary (other than pursuant to Section 9(a)), including issuing any equity, equity-linked or debt securities to any Wellington Entity, then at least ten (10) business days prior to the closing of such transaction, the Company shall offer the Guggenheim Investors by written notice setting forth (the quantity of New Securities to be purchased by any such Series E Holder in accordance with this Section 4 shall be deemed to be a waiver by such Series E Holder of its right to purchase any portion of its pro rata portion of such New Securities in the applicable Private Placement. For purposes of this Section 4, each Series E Holder’s “pro rata share” of New Securities to be issued in each Private Placement shall be (iGuggenheim Participation Notice”) a fraction, the numerator of which shall be the number of shares of Series E Preferred Stock held by such Series E Holder as of the date hereof, and the denominator of which shall be 561.3, times (ii) one third of the aggregate dollar amount of the New Securities to be issued in the applicable Private Placement. For purposes of clarification, once the Series E Holders have collectively been offered the right to purchase 33 1/3elect to participate in such transaction with such Unrestricted Subsidiary, up to 20% in the aggregate of New Securities issued the total transaction, on terms and conditions no less favorable to such Guggenheim Investors than the terms and conditions offered to such Wellington Entity(ies). The Guggenheim Investors shall have five (5) business days after receipt of such Guggenheim Participation Notice to elect, by written notice to the Company Company, to participate in such transaction. The closing date for such transaction shall be no earlier than ten (10) business days after the date hereof aggregating up the Company delivers the applicable Guggenheim Participation Notice to $16.9 million, the right Guggenheim Investors. The Guggenheim Investors may assign their rights of participation set forth in under this Section 4 shall be of no further force or effect9(b) to any Guggenheim Entity.

Right of Participation. In connection Subject to the terms and conditions specified in this Section 5.10, the Company hereby grants to Guidant a right of participation with each private placement of equity securities (“New Securities”) effected respect to future sales by the Company after of its New Securities (as hereinafter defined). If Guidant chooses to exercise the date right of this agreement pursuant participation, Guidant may designate as purchasers under such right itself or its partners or affiliates in such proportions as it deems appropriate. Each time the Company proposes to an exemption from registration under the Securities Act offer any shares of, or securities convertible into or exercisable for any shares of, any class of 1933, as amended, up to an aggregate amount of $16.9 million its capital stock (each a “Private Placement” and collectively the “Private Placements”"New Securities"), the Company shall give each first make an offering of such New Securities to Guidant in accordance with the Series E Holders written following provisions: (a) The Company shall deliver a notice by certified mail (the “Rights "Notice”") of each applicable Private Placement describing the New Securities, the price, the general terms upon which the Company proposes to issue Guidant stating _. its bona fide intention to offer such New Securities, and _. the number of New Securities that such Series E Holder has the right to purchase in each Private Placement under this Section 4. Each such Series E Holder shall have five (5) calendar days from delivery of the Rights Notice to agree to purchase all or any part of its pro rata share (as defined below) shares of such New Securities to be issued offered, and _. the price and terms, if any, upon which it proposes to offer such New Securities. (b) Within thirty (30) calendar days after delivery of the Notice, Guidant may elect to purchase or obtain, at the price and on the terms specified in the applicable Private Placement Notice, up to that number of shares of such New Securities obtained by giving written notice to multiplying the Company setting forth the quantity number of shares of New Securities being offered by the ratio of the number of Shares held by Guidant to be purchased. A failure to provide the total number of shares of Common Stock outstanding. (c) The Company with written notice setting forth may, during the quantity ninety (90) day period following the expiration of the period provided in subsection 5.10(b) hereof, offer the remaining unsubscribed portion of the New Securities to be purchased by any person or persons at a price not less than, and upon terms no more favorable to the offeree than those specified in the Notice. If the Company does not enter into an agreement for the sale of the New Securities within such Series E Holder in accordance with this Section 4 period, or if such agreement is not consummated within forty-five (45) days of the execution thereof, the right provided hereunder shall be deemed to be a waiver by such Series E Holder of its right to purchase any portion of its pro rata portion of revived and such New Securities shall not be offered unless first reoffered to Guidant in the applicable Private Placement. For purposes accordance herewith. (d) The right of participation in this Section 4, each Series E Holder’s “pro rata share” of New Securities to 5.10 shall not be issued in each Private Placement shall be applicable (i) a fraction, to the numerator of which shall be the number issuance or sale of shares of Series E Preferred Common Stock held (or options therefor) to employees, consultants and directors, pursuant to plans or agreements approved by such Series E Holder as the Board for the primary purpose of the date hereofsoliciting or retaining their services, and the denominator of which shall be 561.3, times or (ii) one third to the offer and sale of shares of Common Stock of the aggregate dollar amount Company to the public pursuant to a firmly underwritten public offering, registered under the Securities Act pursuant to a registration statement, or (iii) to the issuance of securities pursuant to the New Securities conversion or exercise of convertible or exercisable securities, or to be issued the issuance of securities in the applicable Private Placement. For purposes connection with a bona fide business acquisition of clarification, once the Series E Holders have collectively been offered the right to purchase 33 1/3% of New Securities issued or by the Company after the date hereof aggregating up Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, or (iv) to $16.9 million, the right any securities issued upon exercise of participation set forth in this Section 4 shall be of no further force currently outstanding options or effectwarrants.