Common use of Right of Second Refusal Clause in Contracts

Right of Second Refusal. (i) In the event that the LLC does not elect to purchase all of the Transfer Securities available pursuant to it under Section 11.01(b) within the period set forth therein, the Transferring Member shall give a written notice to the Preferred Members (the “Second Notice”) that shall set forth the Transfer Securities not purchased by the LLC and that shall include the terms of the Notice set forth in Section 11.01(a). For a period of ten (10) days beginning upon the receipt of the Second Notice, the Preferred Members shall have the right to purchase their pro rata share (as determined pursuant to Section 11.01(c)(ii)) of the Transfer Securities subject to the Second Notice on the same terms (including the price) and conditions as set forth therein. (ii) The pro rata share of each Preferred Member shall be equal to the product obtained by multiplying (x) the aggregate number of Transfer Securities covered by the Second Notice and (y) a fraction, the numerator of which is the number of Shares held by such Preferred Member at the time of the Transfer, calculated on an as-converted to Common Share basis, and the denominator of which is the total number of Shares held by all of such Preferred Members at the time of the Transfer, calculated on an as-converted to Common Share basis. (iii) In the event that not all of the Preferred Members elect to purchase their full pro rata share (as determined pursuant to Section 11.01(c)(ii)) of the Transfer Securities available pursuant to their rights under Section 11.01(c)(i) within the time period set forth therein, then the Transferring Member shall promptly give written notice (the “Oversubscription Notice”) to each of the Preferred Members who has so elected to exercise its full pro rata share of the Transfer Securities available pursuant to their rights under Section 11.01(c)(i) (the “Participating Members”) which Oversubscription Notice shall set forth the Transfer Securities not purchased by the Preferred Members, and shall offer such Participating Members the right to acquire such unsubscribed Transfer Securities. Each Participating Member shall have ten (10) days after receipt of the Oversubscription Notice (the “Oversubscription Period”) to notify the Transferring Member of its election to purchase all or any portion of the unsubscribed Transfer Securities on the same terms and conditions as set forth in the Second Notice. If the Participating Members elect to purchase more than the total number of unsubscribed Transfer Securities available for purchase, the number of unsubscribed Transfer Securities to be purchased by each Participating Member shall be proportionately reduced based on such Participating Member’s pro rata share of the unsubscribed Transfer Securities. Each Participating Members’ pro rata share for purposes of the immediately preceding sentence shall be equal to the product obtained by multiplying (x) the aggregate number of unsubscribed Transfer Securities covered by the Oversubscription Notice and (y) a fraction, the numerator of which is the number of Shares owned by such Participating Member at the time of the Transfer, calculated on an as-converted to Common Share basis, and the denominator of which is the total number of Shares owned by all of the Participating Members at the time of the Transfer, calculated on an as-converted to Common Share basis. The Participating Members (including the Participating Members who elect to oversubscribe in accordance with this Section 11.01(c)(iii)) shall effect the purchase of the Transfer Securities, including payment of the purchase price, within sixty (60) days after (i) if the Transfer Securities are certificated, such date that the Transferring Member shall deliver to the appropriate Participating Member the certificate(s) (if any) representing the Transfer Securities to be purchased by the Participating Members, each certificate to be properly endorsed for transfer or (ii) if the Transfer Securities are not certificated, the applicable expiration date of such Participating Member’s Oversubscription Period.

Right of Second Refusal. (i) In the event that the LLC does not elect to purchase all of the Transfer Securities available pursuant to it under Section 11.01(b) within the period set forth therein, the Transferring Member shall give a written notice to the Preferred Members (the “Second Notice”) that shall set forth the Transfer Before any Noticed Securities not purchased by the LLC and that Company pursuant to Section 4 hereof may be Transferred by any Holder, such Noticed Securities shall include the terms of the Notice first be offered to Investor, as set forth below. If the provisions of Section 4 are terminated as provided in the proviso to Section 11.01(a10(j). , then the provisions of Section 4(a) shall be applicable mutatis mutandis to this Section 5. (i) For a period of ten thirty (1030) days beginning upon the after receipt of the Second Designated Notice, the Preferred Members Investor shall have the right to purchase their pro rata all of the Noticed Securities not purchased by the Company pursuant to Section 4 hereof (the "Remaining Securities"). The purchase price per share (as of Common Stock of the Remaining Securities purchased by Investor pursuant to this Section 5 shall be, in the case of a sale, the price per share of Common Stock set forth in the Sale Notice and, in the case of a Transfer not involving a sale, the fair market value of such shares of Common Stock determined pursuant to Section 11.01(c)(ii)4(a)(c) hereof unless the Company shall not have purchased any part of the Transfer Securities subject to Noticed Securities, and the Second Notice purchase shall be on the same terms (including and subject to the price) and same conditions as those set forth thereinin the Sale Notice. The right to purchase shall be exercisable by written notice to the Transferring Holder within the 30-day period described above, specifying the number of shares of Common Stock to be purchased. (ii) The pro rata share In the case of each Preferred Member a Transfer of shares of Common Stock not involving a sale, if the Company shall not have purchased any part of the Noticed Securities and if Investor and the Transferring Holder do not reach agreement on the fair market value thereof, then such fair market value shall be equal to the product obtained determined in good faith by multiplying (x) the aggregate number of Transfer Securities covered an independent and qualified investment banker or appraisal firm selected by the Second Notice Board. This determination will be final and (y) a fraction, binding upon all parties and persons claiming under or through them. The fees and expenses of such banker or appraisal firm shall be borne equally by the numerator of which is the number of Shares held by such Preferred Member at the time of the Transfer, calculated on an as-converted to Common Share basis, Company and the denominator of which is the total number of Shares held by all of such Preferred Members at the time of the Transfer, calculated on an as-converted to Common Share basisTransferring Holder. (iii) In the event that not all of the Preferred Members elect to purchase their full pro rata share (as determined pursuant to Section 11.01(c)(ii)) of the Transfer Securities available pursuant to their rights under Section 11.01(c)(i) within the time period set forth therein, then the Transferring Member shall promptly give written notice (the “Oversubscription Notice”) to each of the Preferred Members who has so elected to exercise its full pro rata share of the Transfer Securities available pursuant to their rights under Section 11.01(c)(i) (the “Participating Members”) which Oversubscription Notice shall set forth the Transfer Securities not purchased by the Preferred Members, and shall offer such Participating Members the right to acquire such unsubscribed Transfer Securities. Each Participating Member shall have ten (10) days after receipt of the Oversubscription Notice (the “Oversubscription Period”) to notify the Transferring Member of its election to purchase all or any portion of the unsubscribed Transfer Securities on the same terms and conditions as set forth in the Second Notice. If the Participating Members elect to purchase more than the total number of unsubscribed Transfer Securities available for purchase, the number of unsubscribed Transfer Securities to be purchased by each Participating Member shall be proportionately reduced based on such Participating Member’s pro rata share of the unsubscribed Transfer Securities. Each Participating Members’ pro rata share for purposes of the immediately preceding sentence shall be equal to the product obtained by multiplying (x) the aggregate number of unsubscribed Transfer Securities covered by the Oversubscription Notice and (y) a fraction, the numerator of which is the number of Shares owned by such Participating Member at the time of the Transfer, calculated on an as-converted to Common Share basis, and the denominator of which is the total number of Shares owned by all of the Participating Members at the time of the Transfer, calculated on an as-converted to Common Share basis. The Participating Members (including the Participating Members who elect to oversubscribe in accordance with this Section 11.01(c)(iii)) shall effect the purchase of the Transfer Securities, including payment of the purchase price, within sixty (60) days after (i) if the Transfer Securities are certificated, such date that the Transferring Member shall deliver to the appropriate Participating Member the certificate(s) (if any) representing the Transfer Securities to be purchased by the Participating Members, each certificate to be properly endorsed for transfer or (ii) if the Transfer Securities are not certificated, the applicable expiration date of such Participating Member’s Oversubscription Period.

Right of Second Refusal. The Tenant, when in occupancy and not then in default hereunder, shall have an ongoing right of second refusal subject to Xxxxxxxxx Xxxxxxxxx and Associates Ltd. waiving its existing right of first refusal to lease all of the space set out below (the "Additional Space") on the terms and conditions and in the manner as follows: (a) The Landlord shall give notice in writing to the Tenant if the Additional Space is available for leasing, which notice shall set out: (i) In the event that the LLC does not elect to purchase all of the Transfer Securities available pursuant to it under Section 11.01(b) within the period set forth therein, the Transferring Member shall give a written notice to the Preferred Members (the “Second Notice”) that shall set forth the Transfer Securities not purchased by the LLC and that shall include the terms of the Notice set forth in Section 11.01(a). For a period of ten (10) days beginning upon the receipt of the Second Notice, the Preferred Members shall have the right to purchase their pro rata share (as determined pursuant to Section 11.01(c)(ii)) of the Transfer Securities subject to the Second Notice on the same terms (including the price) and conditions as set forth therein.Additional Space; (ii) The pro rata share of each Preferred Member shall be equal to the product obtained by multiplying (x) the aggregate number of Transfer Securities covered by the Second Notice and (y) a fraction, the numerator of which is the number of Shares held by such Preferred Member at the time of the Transfer, calculated on an as-converted to Common Share basis, and the denominator of which is the total number of Shares held by all of such Preferred Members at the time of the Transfer, calculated on an as-converted to Common Share basis.Basic Rent payable; (iii) In the event Term; (iv) the inducements. (b) Upon such notice being given, the Tenant shall have seven (7) calendar days within which to agree in writing to lease the Additional Space upon terms set out in the said notice and, failing such agreement, the Landlord may lease the same to any third party at an effective rent considering inducements equal to or greater than that not all offered to the Tenant and this right of second refusal shall cease. (c) Unless otherwise specified in the Preferred Members elect to purchase their full pro rata share (as determined notice, the terms of any lease entered into pursuant to Section 11.01(c)(ii)this paragraph shall be the same as herein contained, save for the premises leased, Rent, any Landlord Work (or other inducements) and any further rights of the Transfer Securities available pursuant second refusal. (d) The provisions hereof shall not apply to their rights under Section 11.01(c)(i) within the time period set forth therein, then the Transferring Member shall promptly give written notice (the “Oversubscription Notice”) to each of the Preferred Members who has so elected to exercise its full pro rata share of the Transfer Securities available pursuant to their rights under Section 11.01(c)(i) (the “Participating Members”) which Oversubscription Notice shall set forth the Transfer Securities not purchased by the Preferred Members, and shall offer such Participating Members the right to acquire such unsubscribed Transfer Securities. Each Participating Member shall have ten (10) days after receipt of the Oversubscription Notice (the “Oversubscription Period”) to notify the Transferring Member of its election to purchase all or any portion of the unsubscribed Transfer Securities Additional Space occupied by an existing tenant, whether pursuant to a lease renewal or extension agreement, overholding, or otherwise, it being understood and agreed that the Tenant shall only have a right of refusal to lease those portions of the Additional Space which have become vacant and available for lease by the Landlord. (e) The Additional Space referred to herein shall be any vacant space or space available for lease by the Landlord on the same terms and conditions as set forth in the Second Notice. If the Participating Members elect to purchase more than the total number of unsubscribed Transfer Securities available for purchase, the number of unsubscribed Transfer Securities to be purchased by each Participating Member shall be proportionately reduced based on such Participating Member’s pro rata share main floor of the unsubscribed Transfer Securities. Each Participating Members’ pro rata share for purposes of the immediately preceding sentence shall be equal Building contiguous to the product obtained by multiplying (x) the aggregate number of unsubscribed Transfer Securities covered by the Oversubscription Notice and (y) a fraction, the numerator of which is the number of Shares owned by such Participating Member at the time of the Transfer, calculated on an as-converted to Common Share basis, and the denominator of which is the total number of Shares owned by all of the Participating Members at the time of the Transfer, calculated on an as-converted to Common Share basis. The Participating Members (including the Participating Members who elect to oversubscribe in accordance with this Section 11.01(c)(iii)) shall effect the purchase of the Transfer Securities, including payment of the purchase price, within sixty (60) days after (i) if the Transfer Securities are certificated, such date that the Transferring Member shall deliver to the appropriate Participating Member the certificate(s) (if any) representing the Transfer Securities to be purchased by the Participating Members, each certificate to be properly endorsed for transfer or (ii) if the Transfer Securities are not certificated, the applicable expiration date of such Participating Member’s Oversubscription PeriodLeased Premises.

Right of Second Refusal. Tenant shall have the right of second refusal on the fifth (i5th) floor of the Building (the "Second Refusal Space"), subject to the prior right of first refusal granted to Turnxx Xxxadcasting System, Inc. Such right of second refusal shall be exercised as follows: In the event that, at any time during the Lease Term, Landlord receives and desires to accept one or more offers (each, an "Offer") to lease a Second Refusal Space and any other tenant of the Building with a prior right of first refusal with respect thereto declines to exercise its right of first refusal with respect to such Second Refusal Space, then Landlord shall advise Tenant in writing (the "Advice") of such facts. The Advice shall include a statement that the LLC does not elect to purchase all of the Transfer Securities available Advice is being given pursuant to it under Section 11.01(b) within the period set forth therein, the Transferring Member shall give right of second refusal granted in this Lease and a written notice statement that Tenant must respond to the Preferred Members (the “Second Notice”) that shall set forth the Transfer Securities not purchased by the LLC and that shall include the terms of the Notice set forth in Section 11.01(a). For a period of Advice within ten (10) days beginning upon the of its receipt of the Second Notice, the Preferred Members shall have the same or lose its right to purchase their pro rata share (as determined pursuant to Section 11.01(c)(ii)) lease the offered space. The Advice shall also include the identity of the Transfer Securities subject to the Second Notice on the same terms (including the price) prospective tenant and conditions as set forth therein. (ii) The pro rata share of each Preferred Member shall be equal to the product obtained by multiplying (x) the aggregate number of Transfer Securities covered by the Second Notice a true, correct and (y) a fraction, the numerator of which is the number of Shares held by such Preferred Member at the time complete copy of the Transfersigned Offer. Tenant may lease such Second Refusal Space in its entirety only, calculated under the terms contained in the Offer or on an as-converted such other terms as may be acceptable to Common Share basisLandlord in its reasonable discretion, and the denominator of which is the total number of Shares held by all of such Preferred Members at the time of the Transfer, calculated on an as-converted to Common Share basis. (iii) In the event that not all of the Preferred Members elect to purchase their full pro rata share (as determined pursuant to Section 11.01(c)(ii)) of the Transfer Securities available pursuant to their rights under Section 11.01(c)(i) within the time period set forth therein, then the Transferring Member shall promptly give delivering written notice (the “Oversubscription Notice”"Notice of Exercise") of its election to each of lease the Preferred Members who has so elected Second Refusal Space covered by such Offer to exercise its full pro rata share of the Transfer Securities available pursuant to their rights under Section 11.01(c)(i) (the “Participating Members”) which Oversubscription Notice shall set forth the Transfer Securities not purchased by the Preferred Members, and shall offer such Participating Members the right to acquire such unsubscribed Transfer Securities. Each Participating Member shall have Landlord within said ten (10) days period, except that Tenant shall have no such right of second refusal, and Landlord need not provide Tenant with an Advice, if: 1. Tenant is in default under the Lease at the time Landlord would otherwise deliver the Advice; or 2. the Premises, or any portion thereof, is sublet at the time Landlord would otherwise deliver the Advice; or 3. the Lease has been assigned prior to the date Landlord would otherwise deliver the Advice; or 4. Tenant is not occupying the Premises on the date Landlord would otherwise deliver the Advice. The term for the Second Refusal Space shall commence upon the commencement date specified in the Advice and thereupon such Second Refusal Space shall be considered a part of the Premises, provided that all of the terms specified in the Advice shall govern Tenant's leasing of the Second Refusal Space and, only to the extent that they do not conflict with the Advice, the terms and conditions of this Lease shall apply to the Second Refusal Space. The Second Refusal Space (including improvements and personalty, if any) shall be accepted by Tenant in its condition and as-built configuration existing on the earlier of the date Tenant takes possession of the Second Refusal Space or the date the term for such Second Refusal Space commences, unless the Advice specifies any work to be performed by Landlord in the Second Refusal Space, in which case Landlord shall perform such work in the Second Refusal Space. The rights of Tenant hereunder with respect to any Second Refusal Space shall terminate on the earlier to occur of (i) the date six (6) months prior to the expiration date of the original Lease Term (without regard to renewals or extensions thereof); (ii) with respect only to any Second Refusal Space described in an Advice (but not otherwise), Tenant's failure to exercise its right of second refusal within the ten (10) day period provided hereinabove with respect to any such Second Refusal Space for which an Advice is so given by Landlord; and (iii) with respect only to any Second Refusal Space described in an Advice (but not otherwise), the date Landlord would have provided Tenant an Advice thereof if Tenant had not been in violation of one or more of the conditions set forth hereinabove. If Tenant exercises its right of second refusal, Landlord shall prepare an amendment (the "Amendment") adding the Second Refusal Space to the Premises on the terms set forth in the Advice, and reflecting the changes in the Base Rent, Approximate Rentable Area of the Premises, Tenant's Pro Rata Share, and other appropriate terms. A copy of the Amendment shall be (i) sent to Tenant within a reasonable time after receipt of the Oversubscription Notice (the “Oversubscription Period”) to notify the Transferring Member of its election to purchase all or any portion of the unsubscribed Transfer Securities on the same terms and conditions as set forth in the Second Notice. If the Participating Members elect to purchase more than the total number of unsubscribed Transfer Securities available for purchase, the number of unsubscribed Transfer Securities to be purchased Exercise executed by each Participating Member shall be proportionately reduced based on such Participating Member’s pro rata share of the unsubscribed Transfer Securities. Each Participating Members’ pro rata share for purposes of the immediately preceding sentence shall be equal to the product obtained by multiplying (x) the aggregate number of unsubscribed Transfer Securities covered by the Oversubscription Notice and (y) a fraction, the numerator of which is the number of Shares owned by such Participating Member at the time of the Transfer, calculated on an as-converted to Common Share basisTenant, and the denominator of which is the total number of Shares owned by all of the Participating Members at the time of the Transfer, calculated on an as-converted to Common Share basis. The Participating Members (including the Participating Members who elect to oversubscribe in accordance with this Section 11.01(c)(iii)) shall effect the purchase of the Transfer Securities, including payment of the purchase price, within sixty (60) days after (i) if the Transfer Securities are certificated, such date that the Transferring Member shall deliver to the appropriate Participating Member the certificate(s) (if any) representing the Transfer Securities to be purchased by the Participating Members, each certificate to be properly endorsed for transfer or (ii) if the Transfer Securities are not certificated, the applicable expiration date of such Participating Member’s Oversubscription Periodexecuted by Tenant and returned to Landlord within ten (10) days thereafter.

Right of Second Refusal. Tenant shall have a right of second refusal on the Second Refusal Space (ias defined below) In during the event that the LLC does not elect to purchase all first three (3) years of the Transfer Securities available pursuant Term subject to it under Section 11.01(b) within the period terms and conditions set forth thereinin this Paragraph 52 (the “Right of Second Refusal”). As used herein, “Second Refusal Space” shall mean the Transferring Member space constituting approximately 10,476 RSF in Section E1 of the Building, as depicted on Exhibit G hereto. The Second Refusal Space is presently vacant, but subject to a right of first refusal (“Right of First Refusal”) in favor of GlobeImmune, Inc. (“GlobeImmune”), another tenant in the Building. Landlord shall give a provide written notice to the Preferred Members Tenant (the a “Second Refusal Notice”) of any bona fide offer to lease the Second Refusal Space or any portion thereof that Landlord receives during the Term of this Lease and which Landlord is willing to accept (an “Offer”), provided that GlobeImmune has declined to exercise its Right of First Refusal with respect to the same. Tenant shall have five (5) business days after receipt of Landlord’s notice to exercise its Right of Second Refusal by providing Landlord with an irrevocable written notice (“Election Notice”) that shall set forth the Transfer Securities not purchased by the LLC and that shall include the terms of the Notice set forth in Section 11.01(a). For a period of ten (10) days beginning upon the receipt Tenant elects to lease all of the Second Notice, Refusal Space described in the Preferred Members shall have the right to purchase their pro rata share (as determined pursuant to Section 11.01(c)(ii)) of the Transfer Securities subject to the Second Notice on the same terms (including the price) and conditions as set forth therein. (ii) The pro rata share of each Preferred Member shall be equal to the product obtained by multiplying (x) the aggregate number of Transfer Securities covered by the Second Notice and (y) a fraction, the numerator of which is the number of Shares held by such Preferred Member at the time of the Transfer, calculated on an as-converted to Common Share basis, and the denominator of which is the total number of Shares held by all of such Preferred Members at the time of the Transfer, calculated on an as-converted to Common Share basis. (iii) In the event that not all of the Preferred Members elect to purchase their full pro rata share (as determined pursuant to Section 11.01(c)(ii)) of the Transfer Securities available pursuant to their rights under Section 11.01(c)(i) within the time period set forth therein, then the Transferring Member shall promptly give written notice (the “Oversubscription Notice”) to each of the Preferred Members who has so elected to exercise its full pro rata share of the Transfer Securities available pursuant to their rights under Section 11.01(c)(i) (the “Participating Members”) which Oversubscription Notice shall set forth the Transfer Securities not purchased by the Preferred Members, and shall offer such Participating Members the right to acquire such unsubscribed Transfer Securities. Each Participating Member shall have ten (10) days after receipt of the Oversubscription Notice (the “Oversubscription Period”) to notify the Transferring Member of its election to purchase all or any portion of the unsubscribed Transfer Securities Offer on the same terms and conditions as set forth in the Second Notice. If the Participating Members elect Offer (and Tenant shall not be permitted to purchase more lease less than the total number of unsubscribed Transfer Securities available for purchase, the number of unsubscribed Transfer Securities to be purchased by each Participating Member shall be proportionately reduced based on such Participating Member’s pro rata share of the unsubscribed Transfer Securities. Each Participating Members’ pro rata share for purposes of the immediately preceding sentence shall be equal to the product obtained by multiplying (x) the aggregate number of unsubscribed Transfer Securities covered by the Oversubscription Notice and (y) a fraction, the numerator of which is the number of Shares owned by such Participating Member at the time of the Transfer, calculated on an as-converted to Common Share basis, and the denominator of which is the total number of Shares owned by all of the Participating Members at Second Refusal Space described in the time Offer); provided, however, if Landlord receives Tenant’s Election Notice on or before August 1, 2006, then Base Rent for the Second Refusal Space shall be the lesser of the Transfer, calculated on an as-converted to Common Share basis. The Participating Members (including the Participating Members who elect to oversubscribe in accordance with this Section 11.01(c)(iii)) shall effect the purchase of the Transfer Securities, including payment of the purchase price, within sixty (60) days after (i) if the Transfer Securities are certificatedinitial Base Rent set forth in the Offer, such and (ii) the Base Rent applicable to the Premises on the date that the Transferring Member Second Refusal Space becomes part of the “Premises” hereunder. In the event that Landlord does not receive Tenant’s written election to exercise the Right of Second Refusal within five (5) business days after the date of the Second Refusal Notice, then Tenant shall deliver be deemed to have declined to exercise its Right of Second Refusal with respect thereto and Landlord shall be free to sublease the appropriate Participating Member space described in the certificate(sOffer to any third party on the terms and conditions contained in the Offer or such other economic terms and conditions that (taken as a whole) (if any) representing the Transfer Securities to be purchased by the Participating Members, each certificate to be properly endorsed for transfer or (ii) if the Transfer Securities are not certificated, the applicable expiration date of such Participating Member’s Oversubscription Periodless favorable (to a tenant) by more than ten percent (10%).

Right of Second Refusal. (ia) In the event that the LLC does Company has not elect exercised its right to purchase all of the Transfer Securities available pursuant Offered Stock or has declined to it under Section 11.01(b) within the period set forth therein, the Transferring Member shall give a written notice to the Preferred Members (the “Second Notice”) that shall set forth the Transfer Securities not purchased by the LLC and that shall include the terms of the Notice set forth in Section 11.01(a). For a period of ten (10) days beginning upon the receipt of the Second Notice, the Preferred Members shall have the exercise its right to purchase their pro rata share (as determined any of the Offered Stock pursuant to Section 11.01(c)(ii)3.4 within the ROFR Exercise Period, the Offering Stockholder shall within five (5) Business Days of the Transfer Securities subject to the Second Notice on the same terms (including the price) and conditions as set forth therein. (ii) The pro rata share of each Preferred Member shall be equal to the product obtained by multiplying (x) the aggregate number of Transfer Securities covered by the Second Notice and (y) a fraction, the numerator of which is the number of Shares held by such Preferred Member at the time earlier of the Transfer, calculated on an as-converted to Common Share basis, and ROFR Exercise Notice Date or the denominator of which is the total number of Shares held by all of such Preferred Members at the time end of the TransferROFR Exercise Period, calculated on an as-converted to Common Share basis. (iii) In the event that not all of the Preferred Members elect to purchase their full pro rata share (as determined pursuant to Section 11.01(c)(ii)) of the Transfer Securities available pursuant to their rights under Section 11.01(c)(i) within the time period set forth therein, then the Transferring Member shall promptly give written notice (the “Oversubscription Second ROFR Notice”) to each the Second ROFR Offeree stating that it has received a Transfer Offer for the Offered Stock (such Offered Stock amount adjusted to reflect the election, if any, by the Company to purchase a portion of the Preferred Members who has so elected Offered Stock pursuant to exercise its full pro rata Section 3.4). The Second ROFR Notice shall specify: i. the type and aggregate number of shares of the Offered Stock to be Transferred by the Offering Stockholder; ii. the proposed date of the closing of the Transfer, which shall not be less than 60 (sixty) days from the date of the Second ROFR Notice, unless otherwise agreed to by the Second ROFR Offeree in writing; iii. the purchase price per share for the Offered Stock equal to that in the ROFR Notice, and the other material terms and conditions of the Transfer Securities available pursuant Offer no less favorable than those in the ROFR Notice; and iv. the name of the Prospective Transferee who has offered to their rights under Section 11.01(c)(ipurchase such Offered Stock. (b) (the “Participating Members”) which Oversubscription The Second ROFR Notice shall set forth constitute the Offering Stockholder’s offer to Transfer Securities not purchased by all or any portion of the Preferred MembersOffered Stock to the Second ROFR Offeree in accordance with the provisions of this Article III, and which offer shall offer such Participating Members be irrevocable for a period of five (5) Business Days following the right to acquire such unsubscribed Transfer Securities. Each Participating Member shall have ten (10) days after receipt of the Oversubscription Second ROFR Notice (the “Oversubscription Second ROFR Exercise Period”). (c) By delivering the Second ROFR Notice, the Offering Stockholder represents and warrants to the Second ROFR Offeree that: i. the Offering Stockholder has full right, title and interest in and to the Offered Stock described in the Second ROFR Notice; ii. the Offering Stockholder has all the necessary power and authority and has taken all necessary action to Transfer the Offered Stock described in the Second ROFR Notice as contemplated by this Article III; and iii. the Offered Stock described in the Second ROFR Notice is free and clear of any and all liens other than those arising as a result of or under the terms of this Agreement. (d) During the Second ROFR Exercise Period, the Second ROFR Offeree shall deliver a written notice (the “Second ROFR Exercise Notice”) to notify the Transferring Member Offering Stockholder (such date of delivery, the “Second ROFR Exercise Notice Date”) stating its election to either (i) exercise its right to purchase all or any portion of the unsubscribed Transfer Securities Offered Stock on the same terms and conditions as conditions, including the purchase price, set forth in the Second ROFR Notice. If the Participating Members elect to purchase more than the total number of unsubscribed Transfer Securities available for purchase, and specifying therein the number of unsubscribed Transfer Securities shares of Offered Stock it elects to be purchased by each Participating Member shall be proportionately reduced based on such Participating Member’s pro rata share of the unsubscribed Transfer Securities. Each Participating Members’ pro rata share for purposes of the immediately preceding sentence shall be equal to the product obtained by multiplying (x) the aggregate number of unsubscribed Transfer Securities covered by the Oversubscription Notice and (y) a fractionpurchase, the numerator of which is the number of Shares owned by such Participating Member at the time of the Transfer, calculated on an as-converted to Common Share basis, and the denominator of which is the total number of Shares owned by all of the Participating Members at the time of the Transfer, calculated on an as-converted to Common Share basis. The Participating Members (including the Participating Members who elect to oversubscribe in accordance with this Section 11.01(c)(iii)) shall effect the purchase of the Transfer Securities, including payment of the purchase price, within sixty (60) days after (i) if the Transfer Securities are certificated, such date that the Transferring Member shall deliver to the appropriate Participating Member the certificate(s) (if any) representing the Transfer Securities to be purchased by the Participating Members, each certificate to be properly endorsed for transfer or (ii) if decline to exercise its right to purchase all or any portion of the Transfer Securities are not certificated, Offered Stock. The Second ROFR Offerees failure to deliver the applicable expiration date of such Participating Member’s Oversubscription PeriodSecond ROFR Exercise Notice to the Offering Stockholder within the Second ROFR Exercise Period will be deemed as a refusal to exercise its right to purchase the Offered Stock pursuant to this Section 3.5.