Common use of Right of Participation Clause in Contracts

Right of Participation. The Company shall, prior to any proposed issuance by the Company of any of its securities (other than the Subsequent Closing Shares and Subsequent Closing Warrants, each as defined in the Purchase Agreement, and debt securities with no equity feature), offer to each Purchaser by written notice the right, for a period of thirty (30) days, to purchase for cash at an amount equal to the price or other consideration for which such securities are to be issued, a number of such securities so that, after giving effect to such issuance (and the conversion, exercise and exchange into or for (whether directly or indirectly) shares of Common Stock of all such securities that are so convertible, exercisable or exchangeable), such Purchaser will continue to maintain its same proportionate equity ownership in the Company as of the date of such notice (treating each Purchaser, for the purpose of such computation, as the holder of the number of shares of Common Stock which would be issuable to such Purchaser upon conversion, exercise and exchange of all securities (including but not limited to the Preferred Shares) held by such Purchaser on the date such offer is made, that are convertible, exercisable or exchangeable into or for (whether directly or indirectly) shares of Common Stock and assuming the like conversion, exercise and exchange of all such other securities held by all other securityholders); provided, however, that the participation rights of the Purchasers pursuant to this Section 12(b) shall not apply to securities issued (A) upon conversion of any of the Preferred Shares, (B) as a stock dividend or upon any subdivision of shares of Common Stock, provided, however, that the securities issued pursuant to such stock dividend or subdivision are limited to additional shares of Common Stock, (C) pursuant to subscriptions, warrants, options, convertible securities, or other rights which are listed in the Corporation Disclosure Schedules to the Purchase Agreement as being outstanding on the date of this Agreement, (D) solely in consideration for the acquisition (whether by merger or otherwise) by the Company or any of its subsidiaries of all or substantially all of the stock or assets of any other entity, (E) pursuant to a firm commitment public offering, (F) pursuant to the exercise of options to purchase Common Stock granted to directors, officers, employees or consultants of the Company in connection with their service to the Company, pursuant to stock option plans approved by the Board of Directors, not to exceed in the aggregate the Option Basket (as such term is defined below) (appropriately adjusted to reflect stock splits, stock dividends, combinations of shares and the like with respect to the Common Stock) (the shares exempted by this clause (G) being hereinafter referred to as the “Reserved Employee Shares”), (H) in connection with any equipment lease financing, licensing, collaboration, or other joint venture transaction approved by a majority of the Board of Directors, which majority must include each of the Purchaser Nominees (as such term is defined in the Fourth Amended and Restated Voting Agreement dated as of the date hereof (the “Voting Agreement”) by and among the Company and the stockholder parties thereto), (I) shares of capital stock of the Company issued and sold to a collaborative partner of the Company in a private placement closing simultaneously with the closing of the Company’s initial public offering, provided that such issuance and sale is approved by a majority of the Board of Directors, which majority must include each of the Purchaser Nominees, (J) pursuant to the Purchase Agreement or shares issuable upon conversion or exercise of securities issued pursuant to the Purchase Agreement, (K) pursuant to the Xxxxxxx Agency Agreement (as defined in the Purchase Agreement) or (L) upon exercise of any right that was not itself in violation of the terms of this Section 12(b). The Company’s written notice to the Purchasers shall describe the securities proposed to be issued by the Company and specify the number, price and payment terms. Each Purchaser may accept the Company’s offer as to the full number of securities offered to it or any lesser number, by written notice thereof given by it to the Company prior to the expiration of the aforesaid thirty (30) day period, in which event the Company shall promptly sell and such Purchaser shall buy, upon the terms specified, the number of securities agreed to be purchased by such Purchaser. The Company shall be free at any time prior to ninety (90) days after the date of its notice of offer to the Purchasers, to offer and sell to any third party or parties the remainder of such securities proposed to be issued by the Company (including but not limited to the securities not agreed by the Purchasers to be purchased by them), at a price and on payment terms no less favorable to the Company than those specified in such notice of offer to the Purchasers. However, if such third party sale or sales are not consummated within such ninety (90) day period, the Company shall not sell such securities as shall not have been purchased within such period without again complying with this Section 12(b). The Purchasers shall have a right of over-subscription such that if any Purchaser fails to accept the Company’s offer as to the full number of securities offered to such Purchaser pursuant to this Section 12(b), the other Purchasers shall, among them, have the right to purchase up to the balance of the offered securities not so purchased. Such right of over-subscription may be exercised by a Purchaser by accepting the Company’s offer as to more than the full amount of securities offered to such Purchaser. If, as a result thereof, such over-subscriptions exceed the total number of securities available in respect of such over-subscription privilege, the oversubscribing Purchasers shall be cut back with respect to their over-subscriptions on a pro rata basis in accordance with the full number of securities offered to each of them by the Company or as they may otherwise agree among themselves.

Right of Participation. The Company shall, prior to any proposed issuance by the Company of any of its equity securities (other than or securities that are convertible, exercisable or exchangeable into or for (whether directly or indirectly) equity securities of the Subsequent Closing Shares and Subsequent Closing Warrants, each as defined in the Purchase Agreement, and debt securities with no equity featureCompany), offer to each Purchaser by written notice the right, for a period of thirty (30) 30 days, to purchase for cash (at an amount a purchase price equal to the price or other consideration for which such securities are to be issued, ) a number of such securities so that, after giving effect to such issuance (and the conversion, exercise and exchange into or for (whether directly or indirectly) shares equity securities of Common Stock the Company of all such securities that are so convertible, exercisable or exchangeable), such Purchaser will continue to maintain its same proportionate equity ownership in the Company as of the date of such notice (treating each Purchaser, for the purpose of such computation, as the holder of the number of shares of Common Stock held by such Purchaser on the date such offer is made and the number of shares of Common Stock which would be issuable to such Purchaser upon conversion, exercise and exchange of all securities (including but not limited to the Preferred Shares) held by such Purchaser on the date such offer is made, made that are convertible, exercisable or exchangeable into or for (whether directly or indirectly) shares equity securities of Common Stock the Company, and assuming the like conversion, exercise and exchange of all such other securities held by all other securityholderspersons); provided, however, that the participation rights of the Purchasers pursuant to this Section 12(b) 6.02 shall not apply to securities issued (Aa) upon conversion of any of the Preferred Shares, (Bb) as a stock dividend or upon any subdivision of shares of Common Stock, provided, however, provided that the securities issued pursuant to such stock dividend or subdivision are limited to additional shares of Common Stock, (C) pursuant to subscriptions, warrants, options, convertible securities, or other rights which are listed in the Corporation Disclosure Schedules to the Purchase Agreement as being outstanding on the date of this Agreement, (Dc) solely in consideration for the acquisition (whether by merger or otherwise) by the Company or any of its subsidiaries of all or substantially all of the stock or assets of any other entity, (Ed) pursuant to a firm commitment public offering, offering or (Fe) pursuant to the exercise of options to purchase Common Stock granted to directors, officers, employees or consultants of the Company in connection with their service to the Company, pursuant to a stock option plans plan approved by the Board affirmative vote of Directors, not to exceed in the aggregate the Option Basket (as such term is defined below) (appropriately adjusted to reflect stock splits, stock dividends, combinations holders of shares and the like with respect to the Common Stock) (the shares exempted by this clause (G) being hereinafter referred to as the “Reserved Employee Shares”), (H) in connection with any equipment lease financing, licensing, collaboration, or other joint venture transaction approved by at least a majority of the Board of Directors, which majority must include each of the Purchaser Nominees (as such term is defined in the Fourth Amended and Restated Voting Agreement dated as of the date hereof (the “Voting Agreement”) by and among the Company and the stockholder parties thereto), (I) outstanding shares of capital stock of the Company issued and sold to a collaborative partner of the Company in a private placement closing simultaneously with the closing of the Company’s initial public offering, provided that such issuance and sale is approved by a majority of the Board of Directors, which majority must include each of the Purchaser Nominees, (J) pursuant to the Purchase Agreement or shares issuable upon conversion or exercise of securities issued pursuant to the Purchase Agreement, (K) pursuant to the Xxxxxxx Agency Agreement (as defined in the Purchase Agreement) or (L) upon exercise of any right that was not itself in violation of the terms of this Section 12(b). The Company’s written notice to the Purchasers shall describe the securities proposed to be issued by the Company and specify the number, price and payment terms. Each Purchaser may accept the Company’s offer as to the full number of securities offered to it or any lesser number, by written notice thereof given by it to the Company prior to the expiration of the aforesaid thirty (30) day period, in which event the Company shall promptly sell and such Purchaser shall buy, upon the terms specified, the number of securities agreed to be purchased by such Purchaser. The Company shall be free at any time prior to ninety (90) days after the date of its notice of offer to the Purchasers, to offer and sell to any third party or parties the remainder of such securities proposed to be issued by the Company (including but not limited to the securities not agreed by the Purchasers to be purchased by them), at a price and on payment terms no less favorable to the Company than those specified in such notice of offer to the Purchasers. However, if such third party sale or sales are not consummated within such ninety (90) day period, the Company shall not sell such securities as shall not have been purchased within such period without again complying with this Section 12(b). The Purchasers shall have a right of over-subscription such that if any Purchaser fails to accept the Company’s offer as to the full number of securities offered to such Purchaser pursuant to this Section 12(b), the other Purchasers shall, among them, have the right to purchase up to the balance of the offered securities not so purchased. Such right of over-subscription may be exercised by a Purchaser by accepting the Company’s offer as to more than the full amount of securities offered to such Purchaser. If, as a result thereof, such over-subscriptions exceed the total number of securities available in respect of such over-subscription privilege, the oversubscribing Purchasers shall be cut back with respect to their over-subscriptions on a pro rata basis in accordance with the full number of securities offered to each of them by the Company or as they may otherwise agree among themselves.Series C

Right of Participation. The Company shall, prior to any proposed issuance by the Company of any of its securities (other than the Subsequent Closing Shares and Subsequent Closing Warrants, each as defined in the Purchase Agreement, and debt securities with no equity feature), offer to each Purchaser by written notice the right, for a period of thirty (30) days, to purchase for cash at an amount equal to the price or other consideration for which such securities are to be issued, a number of such securities so that, after giving effect to such issuance (and the conversion, exercise and exchange into or for (whether directly or indirectly) shares of Common Stock of all such securities that are so convertible, exercisable or exchangeable), such Purchaser will continue to maintain its same proportionate equity ownership in the Company as of the date of such notice (treating each Purchaser, for the purpose of such computation, as the holder of the number of shares of Common Stock which would be issuable to such Purchaser upon conversion, exercise and exchange of all securities (including but not limited to the Preferred Shares) held by such Purchaser on the date such offer is made, that are convertible, exercisable or exchangeable into or for (whether directly or indirectly) shares of Common Stock and assuming the like conversion, exercise and exchange of all such other securities held by all other securityholderspersons); provided, however, that the participation rights of the Purchasers pursuant to this Section 12(b) 5.2 shall not apply to securities issued (A) upon conversion of any of the Preferred Shares, (B) as a stock dividend or upon any subdivision of shares of Common Stock, provided, however, provided that the securities issued pursuant to such stock dividend or subdivision are limited to additional shares of Common Stock, (C) pursuant to subscriptions, warrants, options, convertible securities, or other rights which are listed in the Corporation Disclosure Schedules to the Purchase Agreement Schedule III as being outstanding on the date of this Agreement, (D) solely in consideration for the acquisition (whether by merger or otherwise) by the Company or any of its subsidiaries of all or substantially all of the stock or assets of any other entity, (E) pursuant to a firm commitment public offering, (F) pursuant to the exercise of options to purchase Common Stock granted to directors, officers, employees or consultants of the Company in connection with their service to the Company, pursuant or to stock option plans approved by the Board of Directors, not to exceed in the aggregate the Option Basket (suppliers or other parties as such term is defined below) (appropriately payment for goods or services adjusted to reflect stock splits, stock dividends, combinations of shares and the like with respect to the Common Stock) less the number of shares (the shares exempted by this clause (Gas so adjusted) being hereinafter referred issued pursuant to as the “Reserved Employee Shares”)subscriptions, (H) in connection with any equipment lease financingwarrants, licensingoptions, collaborationconvertible securities, or other joint venture transaction approved by a majority of the Board of Directors, which majority must include each of the Purchaser Nominees (as such term is defined in the Fourth Amended and Restated Voting Agreement dated as of the date hereof (the “Voting Agreement”) by and among the Company and the stockholder parties thereto), (I) shares of capital stock of the Company issued and sold to a collaborative partner of the Company in a private placement closing simultaneously with the closing of the Company’s initial public offering, provided that such issuance and sale is approved by a majority of the Board of Directors, which majority must include each of the Purchaser Nominees, (J) pursuant to the Purchase Agreement or shares issuable upon conversion or exercise of securities issued pursuant to the Purchase Agreement, (K) pursuant to the Xxxxxxx Agency Agreement (as defined in the Purchase Agreement) or (L) upon exercise of any right that was not itself in violation of the terms of this Section 12(b). The Company’s written notice to the Purchasers shall describe the securities proposed to be issued by the Company and specify the number, price and payment terms. Each Purchaser may accept the Company’s offer as to the full number of securities offered to it or any lesser number, by written notice thereof given by it to the Company prior to the expiration of the aforesaid thirty (30) day period, in which event the Company shall promptly sell and such Purchaser shall buy, upon the terms specified, the number of securities agreed to be purchased by such Purchaser. The Company shall be free at any time prior to ninety (90) days after rights outstanding on the date of its notice of offer to the Purchasers, to offer and sell to any third party or parties the remainder of such securities proposed to be issued by the Company (including but not limited to the securities not agreed by the Purchasers to be purchased by them), at a price and on payment terms no less favorable to the Company than those specified in such notice of offer to the Purchasers. However, if such third party sale or sales are not consummated within such ninety (90) day period, the Company shall not sell such securities as shall not have been purchased within such period without again complying with this Section 12(b). The Purchasers shall have a right of over-subscription such that if any Purchaser fails to accept the Company’s offer as to the full number of securities offered to such Purchaser pursuant to this Section 12(b), the other Purchasers shall, among them, have the right to purchase up to the balance of the offered securities not so purchased. Such right of over-subscription may be exercised by a Purchaser by accepting the Company’s offer as to more than the full amount of securities offered to such Purchaser. If, as a result thereof, such over-subscriptions exceed the total number of securities available in respect of such over-subscription privilege, the oversubscribing Purchasers shall be cut back with respect to their over-subscriptions on a pro rata basis in accordance with the full number of securities offered to each of them by the Company or as they may otherwise agree among themselves.this

Right of Participation. The Subject to the termination provisions ---------------------- of Section 5.27 below, the Company shall, prior to any proposed issuance by the Company of any of its securities (other than the Subsequent Closing Shares and Subsequent Closing Warrants, each as defined in the Purchase Agreement, and debt securities with no equity feature), offer to each Purchaser by written notice the right, for a period of thirty (30) days, to purchase for cash at an amount equal to the price or other consideration for which such securities are to be issued, a number of such securities so that, after giving effect to such issuance (and the conversion, exercise and exchange into or for (whether directly or indirectly) shares of Class A Common Stock of all such securities that are so convertible, exercisable or exchangeable), such Purchaser will continue to maintain its same proportionate equity ownership in the Company as of the date of such notice (treating each Purchaser, for the purpose of such computation, as the holder of the number of shares of Class A Common Stock which would be issuable to such Purchaser upon conversion, exercise and exchange of all securities (including but not limited to the shares of Series B Convertible Preferred SharesStock) held by such Purchaser on the date such offer is made, that are convertible, exercisable or exchangeable into or for (whether directly or indirectly) shares of Class A Common Stock and assuming the like conversion, exercise and exchange of all such other securities held by all other securityholderspersons); provided, however, that the participation rights of the Purchasers pursuant to this Section 12(b) 5.02 shall not apply to securities issued (A) upon conversion of any of the shares of Series A Convertible Preferred SharesStock or Series B Convertible Preferred Stock, (B) as a stock dividend or upon any subdivision of shares of Common Stock, provided, however, provided that the securities issued pursuant to such stock dividend or subdivision are limited to additional shares of Common Stock, (C) pursuant to subscriptions, warrants, options, convertible securities, or other rights which are listed in the Corporation Disclosure Schedules to the Purchase Agreement Schedule IV ----------- as being outstanding on the date of this Agreement, (D) solely in consideration for the acquisition (whether by merger or otherwise) by the Company or any of its subsidiaries of all or substantially all of the stock or assets of any other entity, (E) pursuant to a firm commitment public offering, (F) pursuant to the exercise of options to purchase Common Stock granted or to be granted to directors, officers, employees or consultants of the Company in connection with their service to the Company, pursuant to stock option plans approved by the Board of Directors, not to exceed in the aggregate the Option Basket (as such term is defined below) 2,835,695 shares (appropriately adjusted to reflect stock splits, stock dividends, combinations of shares and the like with respect to the Class A Common Stock) less the number of shares (as so adjusted) issued pursuant to subscriptions, warrants, options, convertible securities, or other rights outstanding on the date of this Agreement and listed in Schedule IV pursuant to clause (C) above (the shares ----------- exempted by this clause (GF) being hereinafter referred to as the “"Reserved Employee Shares”"), and (H) in connection with any equipment lease financing, licensing, collaboration, or other joint venture transaction approved by a majority of the Board of Directors, which majority must include each of the Purchaser Nominees (as such term is defined in the Fourth Amended and Restated Voting Agreement dated as of the date hereof (the “Voting Agreement”) by and among the Company and the stockholder parties thereto), (I) shares of capital stock of the Company issued and sold to a collaborative partner of the Company in a private placement closing simultaneously with the closing of the Company’s initial public offering, provided that such issuance and sale is approved by a majority of the Board of Directors, which majority must include each of the Purchaser Nominees, (J) pursuant to the Purchase Agreement or shares issuable upon conversion or exercise of securities issued pursuant to the Purchase Agreement, (K) pursuant to the Xxxxxxx Agency Agreement (as defined in the Purchase Agreement) or (LG) upon the exercise of any right that which was not itself in violation of the terms of this Section 12(b). The Company’s written notice to the Purchasers shall describe the securities proposed to be issued by the Company and specify the number, price and payment terms. Each Purchaser may accept the Company’s offer as to the full number of securities offered to it or any lesser number, by written notice thereof given by it to the Company prior to the expiration of the aforesaid thirty (30) day period, in which event the Company shall promptly sell and such Purchaser shall buy, upon the terms specified, the number of securities agreed to be purchased by such Purchaser. The Company shall be free at any time prior to ninety (90) days after the date of its notice of offer to the Purchasers, to offer and sell to any third party or parties the remainder of such securities proposed to be issued by the Company (including but not limited to the securities not agreed by the Purchasers to be purchased by them), at a price and on payment terms no less favorable to the Company than those specified in such notice of offer to the Purchasers. However, if such third party sale or sales are not consummated within such ninety (90) day period, the Company shall not sell such securities as shall not have been purchased within such period without again complying with this Section 12(b). The Purchasers shall have a right of over-subscription such that if any Purchaser fails to accept the Company’s offer as to the full number of securities offered to such Purchaser pursuant to this Section 12(b), the other Purchasers shall, among them, have the right to purchase up to the balance of the offered securities not so purchased. Such right of over-subscription may be exercised by a Purchaser by accepting the Company’s offer as to more than the full amount of securities offered to such Purchaser. If, as a result thereof, such over-subscriptions exceed the total number of securities available in respect of such over-subscription privilege, the oversubscribing Purchasers shall be cut back with respect to their over-subscriptions on a pro rata basis in accordance with the full number of securities offered to each of them by the Company or as they may otherwise agree among themselves.itself

Right of Participation. The For so long as at least two-thirds of the Preferred Shares and the Conversion Shares, and the Common Stock of the Investors or their affiliates held on the date of this Agreement, in the aggregate, remain held by the Investors or their affiliates, the Company shall, prior to any proposed issuance by the Company of any of its securities (other than the Subsequent Closing Shares and Subsequent Closing Warrants, each as defined in the Purchase Agreement, and debt securities with no equity feature), offer to each Purchaser Investor by written notice the right, for a period of thirty (30) 15 days, to purchase for cash at an amount equal to the price or other consideration for which such securities are to be issued, issued a number of such securities so that, after giving effect to such issuance (and the conversion, exercise and exchange into or for (whether directly or indirectly) shares of Common Stock of all such securities that are so convertible, exercisable or exchangeable), such Purchaser the Investor will continue to maintain his or its same proportionate beneficial equity ownership in the Company represented by the Preferred Shares, the Conversion Shares and any other shares of Common Stock that he or it owns, if any, as of the date of such notice (treating each Purchaserthe Investor, for the purpose of such computation, as the holder of the number of shares of Common Stock which would be issuable to such Purchaser the Investor upon conversion, exercise and exchange of all securities (including but not limited to the Preferred Shares) held by such Purchaser Investor on the date such offer is made, that are convertible, exercisable or exchangeable into or for (whether directly or indirectly) shares of Common Stock and assuming the like conversion, exercise and exchange of all such other securities held by all other securityholderspersons); provided, however, that the participation rights of the Purchasers Investor pursuant to this Section 12(b) 8 shall not apply to securities issued (A) upon conversion of any of the Preferred Shares, (B) as a stock dividend or upon any subdivision of shares of Common Stock, provided, however, provided that the securities issued pursuant to such stock dividend or subdivision are limited to additional shares of Common Stock, (C) pursuant to subscriptions, warrants, options, convertible securities, or other rights which are listed in to acquire Common Stock from the Corporation Disclosure Schedules to the Purchase Agreement as being Company outstanding on the date of this AgreementJanuary 1, 2005 set forth in Schedule 8(C), (D) pursuant to options to purchase Common Stock from the Company issued to employees, consultants and members of the Board of Directors (provided that such excluded options or equity incentives are approved by a majority of the disinterested members of the Board of Directors of the Company), (E) solely in consideration for the acquisition (whether by merger or otherwise) by the Company or any of its subsidiaries of all or substantially all of the stock or assets of any other entity, (EF) pursuant to a firm commitment public offering, (F) pursuant to the exercise of options to purchase Common Stock granted to directors, officers, employees or consultants of the Company in connection with their service to the Company, pursuant to stock option plans approved by the Board of Directors, not to exceed in the aggregate the Option Basket (as such term is defined below) (appropriately adjusted to reflect stock splits, stock dividends, combinations of shares and the like with respect to the Common Stock) (the shares exempted by this clause (G) being hereinafter referred to as the “Reserved Employee Shares”), (H) in connection with any equipment lease financing, licensing, collaboration, or other joint venture transaction approved by a majority of the Board of Directors, which majority must include each of the Purchaser Nominees (as such term is defined in the Fourth Amended and Restated Voting Agreement dated as of the date hereof (the “Voting Agreement”) by and among the Company and the stockholder parties thereto), (I) shares of capital stock of the Company issued and sold to a collaborative partner of the Company in a private placement closing simultaneously with the closing offering of the Company’s initial public offering, provided that such issuance and sale is approved by a majority of the Board of Directors, which majority must include each of the Purchaser Nominees, (J) pursuant to the Purchase Agreement or shares issuable upon conversion or exercise of securities issued pursuant to the Purchase Agreement, (K) pursuant to the Xxxxxxx Agency Agreement (as defined in the Purchase Agreement) or (L) upon exercise of any right that was not itself in violation of the terms of this Section 12(b)'s securities. The Company’s 's written notice to the Purchasers Investor shall describe the securities proposed to be issued by the Company and specify the number, price and payment terms. Each Purchaser The Investor may accept the Company’s 's offer as to the full number of securities offered to him or it or any lesser number, by written notice thereof given by him or it to the Company prior to the expiration of the aforesaid thirty (30) 15 day period, in which event the Company shall promptly sell and such Purchaser the Investor shall buy, upon the terms specified, the number of securities agreed to be purchased by Investor. If any other investor who has a comparable right of participation fails to accept the Company's offer as to the full number of securities offered to him or it, the Investors who have so accepted may within the following ten-day period purchase the unaccepted securities, with such Purchaserparticipation by such Investors being in proportion to their beneficial equity ownerships in the Company. The Company shall thereafter be free at any time prior to ninety (90) days after the date of its notice of offer to the Purchasers, Investors to offer and sell to any third party or parties the remainder of such securities proposed to be issued by the Company (including but not limited to the securities not agreed by the Purchasers to be purchased by them), at a price and on payment terms no less favorable to the Company than those specified in such notice of offer to the PurchasersInvestors. However, if If such third party sale or sales are not consummated within such ninety (90) ninety-day period, the Company shall not sell such securities as shall not have been purchased within such period without again complying with this Section 12(b)8. The Purchasers shall have a right of over-subscription such that if any Purchaser fails to accept the Company’s offer as to the full number of securities offered to such Purchaser pursuant to participation set forth in this Section 12(b), the other Purchasers shall, among them, have the right 8 shall also apply to purchase up to the balance of the offered securities not so purchased. Such right of over-subscription may and be exercised by a Purchaser by accepting the Company’s offer as to more than the full amount of securities offered to such Purchaser. If, as a result thereof, such over-subscriptions exceed the total number of securities available in respect of such over-subscription privilege, the oversubscribing Purchasers shall be cut back with respect to their over-subscriptions on a pro rata basis in accordance proportionately shared with the full number participation rights of securities offered to each of them by the Company any other person who has acquired Preferred Shares, whether or not as they may otherwise agree among themselvesan Investor under this Agreement.

Right of Participation. The Company shall, prior to any ---------------------- proposed issuance by the Company of any of its securities (other than the Subsequent Closing Shares and Subsequent Closing Warrants, each as defined in the Purchase Agreement, and debt securities with no equity feature), offer to each Major Purchaser under this Agreement by written notice the right, for a period of thirty twenty (3020) days, to purchase for cash at an amount equal to the price or other consideration for which such securities are to be issued, a number of such securities so that, after giving effect to such issuance (and the conversion, exercise and exchange into or for (whether directly or indirectly) shares of Common Stock of all such securities that are so convertible, exercisable or exchangeable), such Major Purchaser will continue to maintain its same proportionate equity ownership in the Company as of the date of such notice (treating each Major Purchaser, for the purpose of such computation, as the holder of the number of shares of Common Stock which would be issuable to such Major Purchaser upon conversion, exercise and exchange of all securities (including but not limited to the Preferred Shares) held by such Major Purchaser on the date such offer is made, that are convertible, exercisable or exchangeable into or for (whether directly or indirectly) shares of Common Stock and assuming the like conversion, exercise and exchange of all such other securities held by all other securityholderspersons); provided, however, that the participation rights of the Major Purchasers pursuant to this Section 12(b) 6.2 shall not apply to securities issued (A) upon conversion of any of the Preferred Shares or Common Shares, (B) as a stock dividend or upon any subdivision of shares of Common Stock, provided, however, provided that the securities issued pursuant to such stock dividend or subdivision are limited to additional shares of Common Stock, (C) pursuant to subscriptions, warrants, options, convertible securities, or other rights which are listed in the Corporation Disclosure Schedules to the Purchase Agreement Schedule IV as being outstanding ----------- on the date of this Agreement, (D) solely in consideration for the acquisition (whether by merger or otherwise) by the Company or any of its subsidiaries of all or substantially all of the stock or assets of any other entity, (E) pursuant to a firm commitment public offering, (F) pursuant to the exercise of options to purchase Common Stock Stock, or as direct stock grants, not to exceed twenty-five percent (25%) of the Company's outstanding shares of capital stock on a fully diluted basis, that were granted by the Board of Directors and approved by the Compensation Committee (as defined in Section 6.19) under any Company stock option plan to directors, officers, employees or consultants of the Company in connection with their service to the Company, pursuant to stock option plans approved by the Board of Directors, not to exceed in the aggregate the Option Basket (as such term is defined below) (appropriately adjusted to reflect stock splits, stock dividends, combinations of shares and the like with respect to the Common Stock) Company (the shares exempted by this clause (GF) being hereinafter referred to as the “"Reserved Employee Shares”"), and (H) in connection with any equipment lease financing, licensing, collaboration, or other joint venture transaction approved by a majority of the Board of Directors, which majority must include each of the Purchaser Nominees (as such term is defined in the Fourth Amended and Restated Voting Agreement dated as of the date hereof (the “Voting Agreement”) by and among the Company and the stockholder parties thereto), (I) shares of capital stock of the Company issued and sold to a collaborative partner of the Company in a private placement closing simultaneously with the closing of the Company’s initial public offering, provided that such issuance and sale is approved by a majority of the Board of Directors, which majority must include each of the Purchaser Nominees, (JG) pursuant to the Purchase Agreement or shares issuable upon conversion or exercise by Thomson of its preemptive rights to purchase securities issued pursuant to the Purchase Agreement, described in Subsections (K) pursuant to the Xxxxxxx Agency Agreement (as defined in the Purchase AgreementD) or (LF) upon exercise of any right that was not itself in violation of above under the terms of this Section 12(b)Thomson Agreement. The Company’s 's written notice to the Major Purchasers shall describe the securities proposed to be issued by the Company and specify the number, price and payment terms. Each Major Purchaser may accept the Company’s 's offer as to the full number of securities offered to it or any lesser number, by written notice thereof given by it to the Company prior to the expiration of the aforesaid thirty twenty (3020) day period, in which event the Company shall promptly sell and such Major Purchaser shall buy, upon the terms specified, the number of securities agreed to be purchased by such Major Purchaser. The Company shall be free at any time prior to ninety one hundred twenty (90120) days after the date of its notice of offer to the Major Purchasers, to offer and sell to any third party or parties the remainder of such securities proposed to be issued by the Company (including but not limited to the securities not agreed by the Major Purchasers to be purchased by them), at a price and on payment terms no less favorable to the Company than those specified in such notice of offer to the Major Purchasers. However, if such third party sale or sales are not consummated within such ninety one hundred twenty (90120) day period, the Company shall not sell such securities as shall not have been purchased within such period without again complying with this Section 12(b). The Purchasers shall have a right of over-subscription such that if any Purchaser fails to accept the Company’s offer as to the full number of securities offered to such Purchaser pursuant to this Section 12(b), the other Purchasers shall, among them, have the right to purchase up to the balance of the offered securities not so purchased. Such right of over-subscription may be exercised by a Purchaser by accepting the Company’s offer as to more than the full amount of securities offered to such Purchaser. If, as a result thereof, such over-subscriptions exceed the total number of securities available in respect of such over-subscription privilege, the oversubscribing Purchasers shall be cut back with respect to their over-subscriptions on a pro rata basis in accordance with the full number of securities offered to each of them by the Company or as they may otherwise agree among themselves6.2.

Right of Participation. The Company shall, prior to any proposed issuance by the Company of any of its securities (other than the Subsequent Closing Shares and Subsequent Closing Warrants, each as defined in the Purchase Agreement, and debt securities with no equity feature), offer to each Purchaser by written notice the right, for a period of thirty (30) days, to purchase for cash at an amount equal to the price or other consideration for which such securities are to be issued, a number of such securities so that, after giving effect to such issuance (and the conversion, exercise and exchange into or for (whether directly or indirectly) shares of Common Stock of all such securities that are so convertible, exercisable or exchangeable), such Purchaser will continue to maintain its same proportionate equity ownership in the Company as of the date of such notice (treating each Purchaser, for the purpose of such computation, as the holder of the number of shares of Common Stock which would be issuable to such Purchaser upon conversion, exercise and exchange of all securities (including but not limited to the Preferred Shares) held by such Purchaser on the date such offer is made, that are convertible, exercisable or exchangeable into or for (whether directly or indirectly) shares of Common Stock and assuming the like conversion, exercise and exchange of all such other securities held by all other securityholderspersons); provided, however, that the participation rights of the Purchasers pursuant to this Section 12(b) 5.2 shall not apply to securities issued (A) upon conversion of any of the Preferred Shares, (B) as a stock dividend or upon any subdivision of shares of Common Stock, provided, however, provided that the securities issued pursuant to such stock dividend or subdivision are limited to additional shares of Common Stock, (C) pursuant to subscriptions, warrants, options, convertible securities, or other rights which are listed in the Corporation Disclosure Schedules to the Purchase Agreement Schedule III as being outstanding on the date of this Agreement, (D) solely in consideration for the acquisition (whether by merger or otherwise) by the Company or any of its subsidiaries of all or substantially all of the stock or assets of any other entity, (E) pursuant to a firm commitment public offering, (F) pursuant to the exercise of options to purchase Common Stock granted to directors, officers, employees or consultants of the Company in connection with their service to the Company, pursuant or to stock option plans approved by suppliers or other parties as payment for goods or services rendered to the Board of DirectorsCompany, not to exceed in the aggregate the Option Basket (as such term is defined below) 3,927,629 shares (appropriately adjusted to reflect stock splits, stock dividends, combinations of shares and the like with respect to the Common Stock) less the number of shares (as so adjusted) issued pursuant to subscriptions, warrants, options, convertible securities, or other rights outstanding on the date of this Agreement and listed in Schedule III pursuant to clause (C) above (the shares exempted by this clause (GF) being hereinafter referred to as the “"Reserved Employee Shares”"), and (H) in connection with any equipment lease financing, licensing, collaboration, or other joint venture transaction approved by a majority of the Board of Directors, which majority must include each of the Purchaser Nominees (as such term is defined in the Fourth Amended and Restated Voting Agreement dated as of the date hereof (the “Voting Agreement”) by and among the Company and the stockholder parties thereto), (I) shares of capital stock of the Company issued and sold to a collaborative partner of the Company in a private placement closing simultaneously with the closing of the Company’s initial public offering, provided that such issuance and sale is approved by a majority of the Board of Directors, which majority must include each of the Purchaser Nominees, (J) pursuant to the Purchase Agreement or shares issuable upon conversion or exercise of securities issued pursuant to the Purchase Agreement, (K) pursuant to the Xxxxxxx Agency Agreement (as defined in the Purchase Agreement) or (LG) upon the exercise of any right that which was not itself in violation of the terms of this Section 12(b)5.2. The Company’s 's written notice to the Purchasers shall describe the securities proposed to be issued by the Company and specify the number, price and payment terms. Each Purchaser may accept the Company’s 's offer as to the full number of securities offered to it or any lesser number, by written notice thereof given by it to the Company prior to the expiration of the aforesaid thirty (30) day period, in which event the Company shall promptly sell and such Purchaser shall buy, upon the terms specified, the number of securities agreed to be purchased by such Purchaser. The Company shall be free at any time prior to ninety (90) days after the date of its notice of offer to the Purchasers, to offer and sell to any third party or parties the remainder of such securities proposed to be issued by the Company (including but not limited to the securities not agreed by the Purchasers to be purchased by them), at a price and on payment terms no less favorable to the Company than those specified in such notice of offer to the Purchasers. However, if such third party sale or sales are not consummated within such ninety (90) day period, the Company shall not sell such securities as shall not have been purchased within such period without again complying with this Section 12(b). The Purchasers shall have a right of over-subscription such that if any Purchaser fails to accept the Company’s offer as to the full number of securities offered to such Purchaser pursuant to this Section 12(b), the other Purchasers shall, among them, have the right to purchase up to the balance of the offered securities not so purchased. Such right of over-subscription may be exercised by a Purchaser by accepting the Company’s offer as to more than the full amount of securities offered to such Purchaser. If, as a result thereof, such over-subscriptions exceed the total number of securities available in respect of such over-subscription privilege, the oversubscribing Purchasers shall be cut back with respect to their over-subscriptions on a pro rata basis in accordance with the full number of securities offered to each of them by the Company or as they may otherwise agree among themselves.of

Right of Participation. The Company shall, prior to any ---------------------- proposed issuance by the Company of any of its securities (other than the Subsequent Closing Shares and Subsequent Closing Warrants, each as defined in the Purchase Agreement, and debt securities with no equity feature), offer to each Purchaser AOL under this Agreement by written notice the right, for a period of thirty twenty (3020) days, to purchase for cash at an amount equal to the price or other consideration for which such securities are to be issued, a number of such securities so that, after giving effect to such issuance (and the conversion, exercise and exchange into or for (whether directly or indirectly) shares of Common Stock of all such securities that are so convertible, exercisable or exchangeable), such Purchaser AOL will continue to maintain its same proportionate equity ownership in the Company as of the date of such notice (treating each PurchaserAOL, for the purpose of such computation, as the holder of the number of shares of Common Stock which would be issuable to such Purchaser AOL upon conversion, exercise and exchange of all securities (including but not limited to the Preferred Shares) held by such Purchaser AOL on the date such offer is made, that are convertible, exercisable or exchangeable into or for (whether directly or indirectly) shares of Common Stock and assuming the like conversion, exercise and exchange of all such other securities held by all other securityholderspersons), but excluding shares of Common Stock issuable to AOL upon its exercise of any right to purchase Common Stock pursuant to the Warrant issued to AOL by the Company in connection with the Interactive Services Agreement; provided, however, that the participation rights of the Purchasers AOL pursuant to this Section 12(b) 6.2 shall not apply to securities issued (A) upon conversion of any of the Preferred Shares or Common Shares, (B) as a stock dividend or upon any subdivision of shares of Common Stock, provided, however, provided that the securities issued pursuant to such stock dividend or subdivision are limited to additional shares of Common Stock, (C) pursuant to subscriptions, warrants, options, convertible securities, or other rights which are listed in the Corporation Disclosure Schedules to the Purchase Agreement Schedule IV as being outstanding on the date of this Agreement, (D) solely in consideration for the acquisition (whether by merger or otherwise) by the Company or any of its subsidiaries of all or substantially all of the stock or assets of any other entity, (E) pursuant to a firm commitment public offering, (F) pursuant to the exercise of options to purchase Common Stock Stock, or as direct stock grants, not to exceed twenty-five percent (25%) of the Company's outstanding shares of capital stock on a fully diluted basis, that were granted by the Board of Directors and approved by the Compensation Committee (as defined in Section 6.19) under any Company stock option plan to directors, officers, employees or consultants of the Company in connection with their service to the Company, pursuant to stock option plans approved by the Board of Directors, not to exceed in the aggregate the Option Basket (as such term is defined below) (appropriately adjusted to reflect stock splits, stock dividends, combinations of shares and the like with respect to the Common Stock) Company (the shares exempted by this clause (GF) being hereinafter referred to as the “"Reserved Employee Shares”"), and (H) in connection with any equipment lease financing, licensing, collaboration, or other joint venture transaction approved by a majority of the Board of Directors, which majority must include each of the Purchaser Nominees (as such term is defined in the Fourth Amended and Restated Voting Agreement dated as of the date hereof (the “Voting Agreement”) by and among the Company and the stockholder parties thereto), (I) shares of capital stock of the Company issued and sold to a collaborative partner of the Company in a private placement closing simultaneously with the closing of the Company’s initial public offering, provided that such issuance and sale is approved by a majority of the Board of Directors, which majority must include each of the Purchaser Nominees, (JG) pursuant to the Purchase Agreement or shares issuable upon conversion or exercise by Thomson of its preemptive rights to purchase securities issued pursuant to the Purchase Agreement, described in Subsections (K) pursuant to the Xxxxxxx Agency Agreement (as defined in the Purchase AgreementD) or (LF) upon exercise of any right that was not itself in violation of above under the terms of this Section 12(b)Thomson Agreement. The Company’s 's written notice to the Purchasers AOL shall describe the securities proposed to be issued by the Company and specify the number, price and payment terms. Each Purchaser AOL may accept the Company’s 's offer as to the full number of securities offered to it or any lesser number, by written notice thereof given by it to the Company prior to the expiration of the aforesaid thirty twenty (3020) day period, in which event the Company shall promptly sell and such Purchaser AOL shall buy, upon the terms specified, the number of securities agreed to be purchased by such PurchaserAOL. The Company shall be free at any time prior to ninety one hundred twenty (90120) days after the date of its notice of offer to the PurchasersAOL, to offer and sell to any third party or parties the remainder of such securities proposed to be issued by the Company (including but not limited to the securities not agreed by the Purchasers AOL to be purchased by themit), at a price and on payment terms no less favorable to the Company than those specified in such notice of offer to the PurchasersAOL. However, if such third party sale or sales are not consummated within such ninety one hundred twenty (90120) day period, the Company shall not sell such securities as shall not have been purchased within such period without again complying with this Section 12(b). The Purchasers shall have a right of over-subscription such that if any Purchaser fails to accept the Company’s offer as to the full number of securities offered to such Purchaser pursuant to this Section 12(b), the other Purchasers shall, among them, have the right to purchase up to the balance of the offered securities not so purchased. Such right of over-subscription may be exercised by a Purchaser by accepting the Company’s offer as to more than the full amount of securities offered to such Purchaser. If, as a result thereof, such over-subscriptions exceed the total number of securities available in respect of such over-subscription privilege, the oversubscribing Purchasers shall be cut back with respect to their over-subscriptions on a pro rata basis in accordance with the full number of securities offered to each of them by the Company or as they may otherwise agree among themselves6.2.

Right of Participation. The Company Corporation shall, prior to any proposed issuance by the Company Corporation of any of its securities (other than the Subsequent Closing Shares and Subsequent Closing Warrants, each as defined in the Purchase Agreement, and debt securities with no equity feature), offer to each Purchaser Preferred Stockholder by written notice the right, for a period of thirty (30) days, to purchase for cash at an amount equal to the price or other consideration for which such securities are to be issued, a number of such securities so that, after giving effect to such issuance (and the conversion, exercise and exchange into or for (whether directly or indirectly) shares of Common Stock of all such securities that are so convertible, exercisable or exchangeable), such Purchaser Preferred Stockholder will continue to maintain its same proportionate equity ownership in the Company Corporation as of the date of such notice (treating each PurchaserPreferred Stockholder, for the purpose of such computation, as the holder of the number of shares of Common Stock which would be issuable to such Purchaser Preferred Stockholder upon conversion, exercise and exchange of all securities (including but not limited to the Preferred Shares) held by such Purchaser Preferred Stockholder on the date such offer is made, that are convertible, exercisable or exchangeable into or for (whether directly or indirectly) shares of Common Stock and assuming the like conversion, exercise and exchange of all such other securities held by all other securityholderspersons); provided, however, that the participation rights of the Purchasers Preferred Stockholder pursuant to this Section 12(b) shall not apply to securities issued (A) upon conversion of any of the Preferred Shares, (B) as a stock dividend or upon any subdivision of shares of Common Stock, provided, however, provided that the securities issued pursuant to such stock dividend or subdivision are limited to additional shares of Common Stock, (C) pursuant to subscriptions, warrants, options, convertible securities, or other rights which are listed in the Corporation Disclosure Schedules to the Purchase Agreement outstanding as being outstanding on of the date of this Agreement, the filing of these Preferred Stock Terms (D) solely in consideration for the acquisition (whether by merger or otherwise) by the Company Corporation or any of its subsidiaries of all or substantially all of the stock or assets of any other entity, (E) pursuant to a firm commitment public offering, (F) pursuant to the exercise of options to purchase Common Stock granted to directors, officers, employees or consultants of the Company Corporation in connection with their service to the CompanyCorporation, pursuant or to stock option plans approved by suppliers or other parties as payment for goods or services rendered to the Board of DirectorsCorporation, not to exceed in the aggregate the Option Basket (as such term is defined below) 6,427,629 shares (appropriately adjusted to reflect stock splits, stock dividends, combinations of shares and the like with respect to the Common Stock) less the number of shares (as so adjusted) issued pursuant to subscriptions, warrants, options, convertible securities, or other rights outstanding as of the date of the filing of these Preferred Stock Terms Pursuant to clause (C) above (the shares exempted by this clause (GF) being hereinafter referred to as the “"Reserved Employee Shares”"), and (H) in connection with any equipment lease financing, licensing, collaboration, or other joint venture transaction approved by a majority of the Board of Directors, which majority must include each of the Purchaser Nominees (as such term is defined in the Fourth Amended and Restated Voting Agreement dated as of the date hereof (the “Voting Agreement”) by and among the Company and the stockholder parties thereto), (I) shares of capital stock of the Company issued and sold to a collaborative partner of the Company in a private placement closing simultaneously with the closing of the Company’s initial public offering, provided that such issuance and sale is approved by a majority of the Board of Directors, which majority must include each of the Purchaser Nominees, (J) pursuant to the Purchase Agreement or shares issuable upon conversion or exercise of securities issued pursuant to the Purchase Agreement, (K) pursuant to the Xxxxxxx Agency Agreement (as defined in the Purchase Agreement) or (LG) upon the exercise of any right that which was not itself in violation of the terms of this Section 12(b)Section. The Company’s Corporation's written notice to the Purchasers Preferred Stockholders shall describe the securities proposed to be issued by the Company Corporation and specify the number, price and payment terms. Each Purchaser Preferred Stockholder may accept the Company’s Corporation's offer as to the full number of securities offered to it or any lesser number, by written notice thereof given by it to the Company Corporation prior to the expiration of the aforesaid thirty (30) day period, in which event the Company Corporation shall promptly sell and such Purchaser Preferred Stockholder shall buy, upon the terms specified, the number of securities agreed to be purchased by such PurchaserPreferred Stockholder. The Company Corporation shall be free at any time prior to ninety (90) days after the date of its notice of offer to the PurchasersPreferred Stockholders, to offer and sell to any third party or parties the remainder of such securities proposed to be issued by the Company Corporation (including but not limited to the securities not agreed by the Purchasers to be purchased by them), at a price and on payment terms no less favorable to the Company than those specified in such notice of offer to the Purchasers. However, if such third party sale or sales are not consummated within such ninety (90) day period, the Company shall not sell such securities as shall not have been purchased within such period without again complying with this Section 12(b). The Purchasers shall have a right of over-subscription such that if any Purchaser fails to accept the Company’s offer as to the full number of securities offered to such Purchaser pursuant to this Section 12(b), the other Purchasers shall, among them, have the right to purchase up to the balance of the offered securities not so purchased. Such right of over-subscription may be exercised by a Purchaser by accepting the Company’s offer as to more than the full amount of securities offered to such Purchaser. If, as a result thereof, such over-subscriptions exceed the total number of securities available in respect of such over-subscription privilege, the oversubscribing Purchasers shall be cut back with respect to their over-subscriptions on a pro rata basis in accordance with the full number of securities offered to each of them by the Company or as they may otherwise agree among themselves.[END OF ARTICLE FOUR]